Work for Hire?

Here we go again. I was asked to sign a contract for an essay I have written, which is scheduled to appear in an edited collection. Let’s leave aside the fact that I wrote the essay — it was solicited for this collection — in summer 2010, and yet it will not appear in print until 2013. I think that the glacial pace of academic publishing is a real problem. But that is not what is bothering me at the moment. The contract that I was asked to sign, so that my essay could appear in an edited volume published by Oxford University Press, contained the following clause:

WORK-FOR-HIRE. The Contributor acknowledges that the Publisher has commissioned the Contribution as a work-for-hire, that the Publisher will be deemed the author of the Contributior as employer-for-hire, and that the copyright in the Contribution will belong to the Publisher during the initial and any renewal or extended period(s) of copyright. To the extent, for any reason, that the Contribution or any portion thereof does not qualify or otherwise fails to be a work-for-hire, theContributor hereby assigns to the Publisher whatever right, title and interest the Contributor would otherwise have in the Contribution throughout the world.

I found this entirely unbelievable, and unacceptable. Since when has original academic writing been classified as “work-for-hire”? It is possible, I suppose, that things like writing encyclopedia essays might be so categorized; but I have never, in my 30 years in academa, encountered a case in which primary scholarship or criticism was so classified. Is this something widespread, but which I simply haven’t heard about? I’d welcome information on this score from people who know more about the academic publishing situation than I do. But it seems to me, at first glance, that the Press is upping the ante in terms of trying to monopolize “intellectual property,” by setting up an arrangement that both cuts off the public from access and denies any rights to the henceforth-proletarianized “knowledge worker” or producer. I am unwilling to countenance such an abridgement of my ability to make the words that I have written more freely available.
In any case, I wrote back to the Press as follows:
I am unwilling to sign the Contributor’s Agreement for my submission to the Oxford Handbook of New Audiovisual Aesthetics as it is currently worded. In particular, I find section 2, defining my contribution as work-for-hire, completely objectionable. I entirely reject the notion that original academic work of this sort can be defined as work-for-hire. I think that this is demeaning to academic scholarship and disrespectful of intellectual labor.

Section 2 of the contract further stipulates that even if “the Contribution or any portion thereof does not qualify or otherwise fails to be a work-for-hire, the Contributor hereby assigns to the Publisher whatever right, title and interest the Contributor would otherwise have in the Contribution throughout the world.” I find this objectionable as well. Even if my contribution to the volume is exempted from being considered work-for-hire, I am unwilling to sign over my own rights to the publisher in this unlimited way. In particular, I insist upon retaining, among other rights, the right to make my contribution available for download on my own website and the right to include this contribution at some later date as part of a self-authored publication. 

I guess we will see what happens. I hope the Press backs down and offers more reasonable terms. If that doesn’t happen, I will simply have to withdraw my contribution from the edited volume. At some point, the essay will appear on my website for free download — whether because the publisher backs down and permits me to do this, or whether I give up on print publication.
Not getting the essay into print will mean that I won’t get the credit (or a line in my Vita) for the publication of an article that I am, in fact, rather proud of. This kind of credit matters in academia — salaries, among other things, are based on it. But as a full Professor with tenure I am in a rather privileged position: I can afford to lose the credit. The same is not the case for academics in more precarious positions — who might well be forced to sign away their rights in cases like this, because their jobs heavily depend upon their publication record, and one additional line on their Vita might make a major difference. 

25 Responses to “Work for Hire?”

  1. Bill W. says:

    What exactly are the legal implications of your work being deemed ‘work for hire’? Th phrase sound demeaning, but I suspect it means something quite specific.

    (I’m somewhat surprised that you didn’t object to OUP being ‘deemed’ to be the author. I’d have thought that precluded you from taking credit for it any way – for example, including it as a line on your vita).

  2. Paul Ennis says:

    Very odd. As someone who works-for-hire as a living I always enjoyed the fact that academic writing is distinct from that world. I mean that’s the kind of language one uses for writing website copy or Kindle romance eBooks!

  3. […] from pub­lish­ers.” One exam­ple sup­port­ing this claim is this Eng­lish professor’s refusal to sign away his copy­right to Oxford Uni­ver­sity Press. “I am unwill­ing,” he writes, “to coun­te­nance such an […]

  4. Justin Remeselnik says:

    As a graduate student, my experience in these matters is necessarily limited, but I too have never heard of work-for-hire being invoked in cases of original scholarship. This is indeed a disheartening development–especially coming from a leading press like Oxford.

    Best of luck with this fight, Steve–I commend your bold (and entirely reasonable) stance.

  5. Leon says:

    Certainly an informative post, and best of luck to you. Let us know how you make out.

    Leon / after nature

  6. Matt Leifer says:

    This is bizarre. If something is truly a work-for-hire, then it should not be necessary to sign a transfer of copyright agreement at all. The only reason we have to sign copyright agreements for journal articles is precisely because they are not works-for-hire. If something is a work-for-hire, they should have made you sign a contract before you wrote the article (as the “for-hire” part suggests). OK, I am not a lawyer, but morally this is the sort of situation that corporate authorship is supposed to cover.

    Bill W — This only means that OUP would be deemed the author for copyright purposes. The author still retains “moral rights”, which include the right to be identified as the person who wrote the article (as on a CV), but not ownership of the intellectual property.

  7. Jeffrey Crenshaw says:

    Thank you for using your position to turn this offer down. I am not in the field of academic publishing, but we are in the same class – the labor class – and any stance such as this helps us all. For-profit entities are simply designed to extract wealth from those that actually produce value for society, and it is only through collectivism and unique individual integrity that we can fight this trend before there is no difference between honest work and faceless slavery.

  8. Josh Lukin says:

    Yeah, I’ve only been offered work-for-hire agreements for encyclopedia articles, never for books, journal articles, or anthologized articles. Given how insouciant most scholars seem to be about their rights as authors, this is a disturbing development — I fear that academic publishers might try to make it the standard thing if they find they’re getting away with it.

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  10. John Hutnyk says:

    Turning our lives into sausage factory grunt work and mere value extraction. This is all too common. Before electronic rights became a standard in publishing contracts I used to scratch out that part (eg for my Calcutta book, and for ‘Dis-Orienting Rhythms’ – only the latter is online for free – on my blog sidebar to download – since scanning the typeset pages of ‘Rumour of Calcutta’ is so far beyond me. Later books other people have made available, and I point to them where I can – also sidebar). Increasingly the clumsy copyright assignment thing seems an issue to fight since there is something truly obscene about making people who work for free for large journals, where those journals are owned and run as sausage factory style conglomerates. Having to sign away ‘rights’ – as if that really was the key concern (not all journals are like this and open access is a real boon) is something tenured profs can take or leave, but anyone else in need of a publication for validation and employment prospects, ever diminishing, has to swallow it whole. Or do they? Sometimes I’ve just forgotten on purpose to send in the rights form – but then some poorly paid staffer, or even unpaid intern, has to chase it up. So I am watching this little episode, since it is a further fold on the sorry tale – let’s see if there is any sort of resolution. Good luck Steve.

  11. Nightspore says:

    Wow.

  12. Many thanks to all those who have reblogged this story. John Protevi mentioned it on the New APPS blog, and got several interesting responses in the comments, including this one from Gordon Hull, which explains a lot and which Gordon has allowed me to repost here:

    OUP is trying to trick him into giving up copyright on the work. Ordinarily, copyright vests in the person who creates a work. One exception is if the work is “for hire.” There’s two ways a work can be “for hire:”

    (a) if one is an “employee” and it’s done during the normal course of one’s employment. Think about someone who codes for Microsoft – the employer directs pretty much the entire activity (academic articles get excepted b/c universities don’t direct us sufficiently in producing them), or

    (b) if it’s a commissioned/contract piece AND there’s an agreement between the parties that it’s a work for hire. There has to be that agreement, though – hence the sneaky contract term by OUP.
    In the relevant Supreme Court case, CCNV v. Reid, the Court unanimously ruled that a commissioned sculpture could not be considered a work for hire absent the explicit agreement – the sculptor worked on his own, at home, on his own schedule, there was no regular salary/benefits, etc. which would let you reasonably construe him as an “employee” of the people commissioning the sculpture. So the sculptor owned copyright.

    Presses ordinarily and obnoxiously demand that we assign copyright to them to publish anyway. I think the difference here is that if it’s a “work for hire,” copyright was never yours in the first place – it belonged to OUP from the start.

    This strikes me as a totally sleazy power grab by OUP.

  13. Nick says:

    I recently signed a contract for a contribution to an edited collection. It is being published by a well-regarded publisher and edited by well-regarded scholars.

    The contract is so lop-sided (against my favour, of course) as to be – I think – practically unenforcable. Technically it prohibits me from completing my thesis or doing any further research or publication around the (very broadly defined) area of research, for at least five years from publication. On top of that, it is also incredibly vague, and it doesn’t even state what jurisdiction it will be enforced in.

    But, this is my first contribution, my CV is literally empty without it… I had neither the choice nor the position to renegotiate what I couldn’t afford to lose.

    What little I know about law tells me that seriously lop-sided, vague contracts should be interpreted in favour of whoever stands to lose from the vagueness. I just hope they don’t sue me for finishing my thesis, because I could be wrong.

  14. Simon Dor says:

    Thanks for spreading this news. As a grad student, I suppose it’s going to happen at some point in my career and I’ll be vigilant.

    For someone who does not speak English as his native language as I am, it is difficult to understand the subtleties of this kind of expressions.

  15. Lisa says:

    Your academic institution likely will look differently on work-for-hire (that is then outside employment and there are likely rules for using institutional resources in outside employment). They should have an alternative license agreement – all they really need from you is permission to publish and distribute … they don’t even need the copyright transfer much less work-for-hire!

  16. Steven,

    Good for you for not putting up with this bullshit. Fuck OUP! I’m gonna do my best to get the word out and I encourage others to do the same.

  17. Also, Steven, it would be great if you let us know who you would like to contact and harass at OUP. I’ve got an angry email in me and no one to send it to!

  18. Therese says:

    The difficulties for non-tenured people are manifold, and we are caught in a real bind by academic publishers and the requirements of the profession. Still, even if we can’t afford to publish all our work in online, open-access journals, we should move in that direction, since academic requirements and publishing are untenable and unacceptable. Juried or not, these journals are the future of academic publishing and there are many good ones. A place to start for film studies is Catherine Grant’s site Film Studies for Free, which lists the top online journals in the field.

    I will be boycotting OUP, along with Project Muse and other for-pay databases of academic articles. If mine end up in one of these, I post them on a free site, such as academia.edu, for people not affiliated with universities who would otherwise have to pay to read them. I didn’t make money writing and publishing them; why should others have to pay to read them? Anything that can be done, to get around an awesomely unjust and fucked-up system, should be done.

  19. Therese says:

    And also, please consider CC (Creative Commons) licensing as a good alternative to copyright. Anything you post online in the way of an essay, etc., should have a CC license of your choosing.

  20. […] has been very vocal about the issue, having run into it specifically with Oxford University Press, writing, I was asked to sign a contract for an essay I have written, which is scheduled to appear in an […]

  21. […] to publish in open access venues. On the opposite side, in my own field literary studies, Steven Shaviro has recently blogged about the contract he received from Oxford University Press that wanted to make his most recent […]

  22. AlanHook says:

    Copyrighted words, copyright this, copyright that. What is next, copyrighted thoughts? Not saying that an author does not have a right to own his work, but you would think that after so many years then it would not be a problem using it in the public domain. Not all of us are Charles Dickens. It makes me glad I didnt go to graduate school, at least not in the field I initially chose. Graduate schools are becoming more like law schools every year!

  23. […] “Work for Hire? «?The Pinocchio Theory”, n.d. […]

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