The following is a transcript of an episode of my Tricks of the Trade(mark) podcast; listen to the full episode here.
Have you hired someone to help build a website or to work with you in partnership on a project where content is created? A vast majority of businesses, of course, have done this, because it’s an important part of conducting business today, and most of us don’t have in-house marketing departments and web design departments and content creators.
I bring this up because it is critical to know about the contracts for these things, and in particular it is critical to know about the copyright and work-for-hire and trademark provisions in any such agreements. You see, if you hire someone to help you with content, whether it’s building a website or taking photos or creating graphics, if you have no written contract with them, you’ve created a host of problems, not the least of which is the ownership of the underlying work. It’s possible that the person you hired could claim that they owned the work and that they can continue to use it or sell it to someone else, even after you’re using it.
If you do have a written agreement, that possibility still exists unless you have explicit work-for-hire terms in the agreement. So it is critical to have these agreements reviewed, upfront, ideally, but if it’s too late to do it upfront, it’s not late to go back and do it now and make sure that there are work-for-hire provisions in these agreements, presuming you want to own exclusive rights to that content, which why wouldn’t you. Now, there are some reasons, maybe you’re paying less or there’s other circumstances where you wouldn’t necessarily need exclusive rights to it, but if you believe you have exclusive rights and you don’t have a written work-for-hire provision in your agreement, you may be extremely wrong.
Another term that should get covered in such agreements is trademarks. It should be clear who owns the logos, brand names, slogans that the parties bring to the table when they’re working together, when they’re doing business. It’s also very important whenever parties are partnering together or creating work together to have written provisions about who owns the rights in any new material that is created as a result of the partnership.
A slightly different from where I’m hiring you to build the website is a situation when you’re saying, “Hey, let’s work together and write a book,” or, “Let’s work together and create some videos,” who’s going to own that resulting product? Are you going to own it jointly? Is one of you going to own it but license it to the other? Are you going to create a separate partnership? There’s many variations, and you’d better off to have somebody who knows review it and help sort it out.
If you’re doing an agreement that involves creating content with a partner, or with someone you’re hiring, or with an independent contractor or with an employee, and employees are treated different than independent contractors, the work-for-hire provisions are necessary for non-employees, but there are other terms that are important for employees. So if you’re entering into agreement for any of these types of situations, the number one tip is to make sure you get it in writing. The number two tip is to make sure you talk to an attorney who can help you understand these provisions and make sure they reflect what the goals of the parties are.
Too many times people come to me after they’ve been burned or after the fact, and then I say, “Okay, can you provide me a copy of the agreement?” And they say, “Well, we didn’t really have anything in writing.” Don’t move forward until you have something in writing!