Work for Hire update

A couple of weeks ago, I mentioned on this blog a situation I was in: that I was unwilling to sign a contract for an essay I had written in contribution an anthology of critical essays from Oxford University Press (OUP), because the contract stipulated that the essay would be regarded as “work for hire.” This would mean that I would have absolutely no rights as the author of the work. Whereas most academic press contracts ask you to sign away certain of your rights, by transferring copyright from yourself to the press, this contract from OUP meant that I would have no rights at all — if I signed, I would be agreeing that (as Gordon Hull put it — see the comments to the previous blog entry) “copyright was never [mine] in the first place — it belonged to OUP from the start.” It is obvious that, were this to become the norm in academic publishing, then intellectual enquiry and academic freedom, as we now know them, would cease to exist. Writers would become “knowledge workers” whose output belonged to the press that published them (or to the university at which they worked, in another variant of the scenario) in the same way that code written on the job at Microsoft, Apple, or Google belongs to those companies, and not to the writers themselves.

Well, the academics who are putting together the volume to which I was supposed to be contributing graciously asked OUP on my behalf about the work for hire provision. The response they got back was that the Press wouldn’t budge on work for hire. I don’t think I have permission to actually reproduce the words of the editor from OUP, so I will paraphrase. What he basically said was that traditional publication agreements are insufficient because they only give presses “limited sets of rights.” In other words, he was openly confessing that OUP seeks complete and unlimited control over the material that they publish. The justification he gave for this was that old neoliberal standby, “flexibility” — OUP is seeking to do all sorts of digital distribution, and if rights are limited then they may not be able to control new forms of distribution that arise due to technological changes. Of course, the mendaciousness of this claim can be seen by the fact that, as was confirmed to me by one of the people involved in putting together the volume, the “work-for-hire” provision was in place long before the Press even got the idea of supplementing physical publication of the volume with a (no doubt password-protected and expensive to acces) website.

Equally alarmingly, the editor said in his email that this “work for hire” provision was now standard practice for the press, at least as regards their very ambitious series of “Handbook” volumes. In other words, OUP is being quite systematic in usurping authors’ rights. If we don’t stop this now, it will become more and more prevalent throughout academic publishing. The volume to which I was supposed to contribute is quite an excellent one, with lots of great articles  (I don’t want to mention its name here so as not to disparage the work of the three academics who put it together).

But I, for one, am determined never to write for Oxford University Press again, unless they eliminate this policy; and I would urge others to refuse to write for them as well. I know that people in less privileged positions than mine are pretty much compelled to sign odious agreements of this sort, because they need the publications for academic credit and recognition, and often specifically for tenure or promotion. So I don’t condemn anyone who does enter into so unfavorable an agreement — rather, I would hope that action by those of us who can afford to take our work elsewhere, or simply make it available for free, will lead to the elimination of such exploitative contracts altogether. I would advise all academic writers to look carefully at their contracts, before they commit themselves.

I will also not be buying any OUP books in the future — which is something of a sacrifice, as they are an important press. [I recently purchased from OUP, at an exorbitant price, the important new book by Stephen Mumford and Rani Lill Anjum, Getting Causes From Powers — which I hope to write about on this blog or in some other forum soon. Should a future situation of this sort arise, I will just have to bite the bullet and wait until I can get a copy through interlibrary loan. I don’t really expect that libraries will stop buying OUP books, and I think the dissemination of scholarship is important, so I cannot really say that I will refuse to read anything, no matter how important, just because it is published by OUP. But I do think buying less from them might have an impact on their profit line, and thus pressure them to cease their unfair practices].

As for my article itself — which is 8500 words long, which contains substantial arguments not found in anything else that I have written, and which cost me two months of my life — I will try to find another venue for it to appear in print. I will eventually make it available for free download from my own website as well (as I have done with most of my writings), but it still seems unfortunately to be the case that academic writings are not taken seriously if they do not have some “official” form of publication.

[This posting has now been translated into Haitian Creole by John Obri — for which much thanks.]

48 Responses to “Work for Hire update”

  1. Nightspore says:

    Is there no provision in the contract allowing you to put the piece in something entirely your own work? That’s what they used to say. Can you ask for that? (Your blog, of course, would count as your own work, I imagine.)

  2. Caitlin says:

    Geez, when did academics become the exploited black performers of the 50’s and 60’s?

  3. Presumably the key right that no scholar wants to give up is the right to have one’s authorship acknowledged. And that, it seems, is one of the rights that the “work for hire” designation eliminates. So in theory, by calling it “work for hire”, they’re saying they’re allowed to take your name off it, if they wish (and unless some other part of the contract contradicts that bit).

    In *some* cases, I can imagine “work for hire” making sense, but not for substantive scholarly contributions like the one you’re talking about.

  4. Josh says:

    Nights, that’s what they used to say in contracts wherein they bought many of the rights to a piece, but not in work-for-hire contracts.

  5. Brad King says:

    I have repeatedly told my department I will not publish (most) of my work in journals that do not pay but own my intellectual property. I do go through the peer-review/acceptance process, and when I reach the point of publication, I have withdrawn my work.

    Intellectual property is just that, and profiting off the work of others – without compensation – is not cool, man.

  6. csaper says:

    Not only that … I published something in an OUP “companion” volume to the Body, and they wouldn’t even send me a copy!

    That was years ago.

    But, why not publish with Punctum Press? Autonomedia? Or, with a press that we are starting up with Helen Burgess of HyperRhiz … that may have a university affiliation or not.

    This is the future of scholarly publication — and with a Shaviro making the move to autonomous media it can only help.

  7. While I’m sure few would compare our writings and find them similar, I can share that I would rather publish to the world–via my blog at Around the Corner-MGuhlin.org–than do so in a closed journal or publication that took away my rights.

    I urge you to find an OER journal that is compatible with your work and share it there.

    Do not surrender. Be the match.

    Wishing you well,

    Miguel Guhlin
    Around the Corner-MGuhlin.org
    http://mguhlin.org

    Portfolio
    http://mguhlin.net

  8. Katy says:

    Hey there. I can see why you’re upset, but I’ve seen this sort of thing happen a bit with multi-contributor projects. Ideally a publisher should provide contributors with their contracts very early in a project’s development – or at least told you what the contract would be like – so that you knew the terms before committing to the work. Otherwise, it can certainly happen that individual contributors end up withdrawing late in the day because nobody has explained the requirements of contributing to a multi-CR resource.

    The good news is that work for hire contracts don’t affect your moral rights so you could still be identified as the author (I think!). Maybe that’s something to explore before you write off the project?

  9. […] you are reading this blog, this piece might be of interest. I heard about it via Steve Muhlberger. Given the extortionate prices of OUP’s books already […]

  10. Fran says:

    Hey, I was also asked to write for this publication, with the assurance that my article could be re-published so long as it was part of a more substantial volume (ie the book I’m working on). Obviously I won’t even consider submitting anything now – fortunately I haven’t yet signed a contract. Many thanks for alerting us all to this!

  11. Scot McPhee says:

    Have you thought of the possibility of simply crossing out and initialling the offending section and returning the contract with the written work. If they then publish the work they have legally agreed to your terms, because they acted under them.

  12. Anna says:

    Thanks very much for this update. I had been an early contributor to this same volume but kind of dropped off the edge partly because I had gotten too busy with other commitments. Interestingly I was in a situation before even having a contract come my way, which was that I had hoped to develop an essay out of some ideas I had previously published in a non refereed journal. I had a productive discussion with the editors about this but they had to delve into OUP general policy which apparently states that no more than 50 % of the material could have been or would be published elsewhere.
    Perhaps this is the norm in multiple-contributor volumes but it’s not one I have encountered and I have contributed to quite a few volumes. While I don’t like seeing the same person’s one ‘star’ article in many many places, I also know that it’s often unrealistic to always publish something substantially different. I sometimes use journals to begin an idea and then a chapter contribution to move it along somewhere, and so this kind of 50% measure is ridiculous and restrictive.
    I am really glad I am now not contributing to the handbook because the same material from my intended article will also be finding it’s way into a book I am currently writing.
    I raise these extra issues because I think the ‘work for hire’situation is part of a cluster or eroding ‘rights’ for scholarly writers. We are expected to write under increasingly crap conditions and we are not actually being properly compensated….it’s rubbish to suggest that we are paid instead by our universities when many writers (although not myself) are in increasingly precarious employment.
    I completely agree with your stand on this with respect to OUP and I actually think we need more people to collectively act with respect to such issues.
    Perhaps one arena to begin to raise these kind of issues in addition to refusing to publish or purchase from such presses, is to approach an organization such as Open Humanities Press. While many questions about the shifting publishing environment are being pushed by OHP around open and free access, I don’t believe the question of writers rights and conditions under cognitive capitalism have been adequately addressed.
    Cheers Anna

  13. Eyal says:

    OUP should live up to the other side of the coin. If this is a work-for-hire, then it would only be fair to hire you for the duration of the work, paying your salary for the two months of research and writing! Taking only one part of the equation demonstrates the true nature of academic publishing.

  14. tm says:

    Katy, I find your comment repugnant. To bring up ‘moral rights’ is precisely the same trick of telling serfs that have become wage labourers that they have been given their freedom. This form of slavery that you are justifying capitulates the neo-liberal order that takes all rights from the worker so that the ruling class or the 1% profit from a faceless and nameless masses that are forced into subjection. As a mouth piece for this form of terror you may feel that you are above us and feel sorry that we are ‘upset’ but you are a slave yourself and as expendable as the rest of us. Please take your slave mentality and bad conscience somewhere else.

  15. Mark says:

    OUP is unlike any other university press, to my knowledge, in that it is effectively, as I understand it, a profit-making concern, which channels monies to Oxford University, rather than being a subsidised scholarly enterprise. Given Oxford University’s role in elite-formation in the UK and globally, I have always disdained to work with OUP in any way, despite their position as the apex academic publisher worldwide.

  16. John Briggs says:

    Katy is wrong about moral rights – the United States essentially doesn’t recognise moral rights.

    I don’t think the contract would stand up in court – US law is pretty cavalier about work-for-hire, but I can’t see that this would meet any definition of it. I can’t see that something becomes work-for-hire simply because the contract says it is.

  17. Nic Veroli says:

    Steven: What you are talking about is Marx’s distinction between formal and real subsumption. You and I are already “knowledge workers” rather than writers. The process that OUP seems to be ambitiously moving forward is that of our real subsumption under capital as knowledge workers. With the distinction, of course, that it is work from which the wage relation has been suppressed… Definitely worth resisting, of course.

  18. Paul Manning says:

    I’m not so certain that work for hire preserves moral rights of the original creator. Giving credit for work for hire seems to be up to the author, and the author is legally identified as the person who paid for the object in question. Some do give such credit, some don’t. It appears to be entirely up to the whim of the person who contracted the work for hire.

  19. presseditor says:

    As an acquisitions editor at a university press, I have to say I completely agree with you and your decision to back out of this edited collection with Oxford. Edited collections are almost always a publishing challenge for publishers. They’re large, expensive to produce, take up a lot of press resources, and are difficult to market and sell. Most edited collections lose money.

    But I don’t see how treating a volume contributor’s piece as a “work for hire” helps solve any of those problems. As it has been said before on your blog, work for hire is always negotiated at the outset and is reserved for more technical aspects of scholarly production. A professional translator’s work be considered a work for hire. Perhaps a critical Introduction or a Foreword. Keyboarding and cover design, etc.

    Most importantly, what Oxford’s request here would mean is that you would not be able to use your own piece in your own single-authored monograph (for junior scholars, many book chapters begin as essays in edited volumes) without Oxford’s explicit consent.

    Different forms of copyright are available for edited collections, including shared copyright and volume rights, variations that increase sharing and openness.

  20. Aaron Kashtan says:

    I applaud your decision. As a comics scholar I’m all too familiar with the use of “work made for hire” to deprive creators of their rights; it’s too bad that the same thing is now happening in scholarly publishing.

  21. Erin Manning says:

    I’m with you, Steve, and have also refused to publish.

  22. In most cases, I would avoid putting one’s important research contributions into chapters in edited volumes. A journal article will be much more visible and have much more impact. When I publish in an OUP handbook-type collection (these things seem ubiquitous), I don’t really care whether they call it work-for-hire or not, since those papers are mostly rehashing or summarizing work from elsewhere.

    Nevertheless, the work-for-hire wording is scary, and I share the outrage and misgivings expressed in the post and comments.

    But, has anyone heard of a press going after an academic who has posted his/her publications on a personal website, ignoring the rights transfer agreement? I haven’t, and I will go on merrily posting everything I publish, whether or not journals accept the SPARC authors’ addendum or not. Whether the concept of “moral right” stands up in court, it is what I believe strongly with reference to my own intellectual production, and it is what motivates my guerilla self-archiving efforts.

  23. Dan S says:

    Hi – for comparison: in 2008 I contributed a chapter to an MIT Press textbook, and the author agreement was very good. To quote it:

    “[I] grant to The MIT Press the nonexclusive right to publish the article in all languages and for all countries in both print and electronic forms; […] With the exception [that I warrant it has not previously been published], I retain the right to use the material in the article in any other writing of my own, whether online or in article or book form.”

    This is great – no transfer of copyright, not even a requirement of exclusivity. That’s the right way to incentivise me to publish with them!

  24. I think this is totally inappropriate/unfair. My small press recently did its first volume incorporating contributed essays – a series of papers addressing various of Salinger’s NINE STORIES. We simply asked each contributor to give us non-exclusive world rights, with copyrights to remain in the names of the contributors. We copyrighted the collection as a whole, and then also printed a page citing the individual copyright holder for each essay. OUP’s approach is an intellectual land-grab.

  25. […] Steven Shaviro recently posted about pulling out of an Oxford University Press collection because th… This is objectionable for lots of reasons, but in particular because academics should retain the right to be associated with the ideas we produce, and so long as we’re above board about it, we should be allowed to develop those ideas and republish them in other forms (for instance, as part of a monograph). […]

  26. Jonathan says:

    Bottom line: we should all be asking to read the contracts up front. The problem is that we are constantly asked by friends and colleagues whose work we want to support, so it’s not a simple thing to say “I will never publish with OUP again.” Though I can say after my own back and forth with them I am strongly motivated to not do so. My own OUP “work for hire” saga is here.

  27. An excellent discussion of the legal meanings and ramifications of this case may be found here:

    http://blogs.library.duke.edu/scholcomm/2012/01/25/who-do-you-work-for-faculty-author/

  28. Susan says:

    Interestingly, I was reading this just as I was sitting down to read a contract for an essay in an OUP volume. This one did not use “work for hire”, though it did assign copyright, and is unclear about my right to publish the material elsewhere should I wish to do so. But I’ve certainly examined that contract carefully!

  29. Norm Hirschy says:

    As the OUP editor for this project, I wanted to take a moment to address some of the points which have come up. Work for hire agreements are used for Oxford Handbooks because it is a series for which the press asks contributors to write new prose for a pre-conceived publication and purpose and under specific length, content, and illustration guidelines. These agreements are offered to contributors before they start to write and they include a modest honorarium. OUP agrees to contributors reusing these articles in subsequent publications and, under certain conditions, to articles being posted to authors’ personal websites. OUP continues to use traditional, non-work-for-hire agreements for traditional edited collections, monographs, journal articles, etc. – forms of publication in which an author first writes independently and then submits to a press without a publishing contract – and has no intentions of changing this. We see the author/editor/publisher relationship as a partnership, one with open lines of communication, and we urge contributors to come to us with their concerns since there are oftentimes solutions that can be easily achieved or negotiated and we are working toward a common purpose and shared goal: effective dissemination of scholarship in all of the publishing formats the twenty-first century will bring.

  30. “Work for hire agreements are used for Oxford Handbooks because it is a series for which the press asks contributors to write new prose for a pre-conceived publication and purpose and under specific length, content, and illustration guidelines” (from the comment above). This seems to me a complete non-sequitur. Does it make sense to anyone else? Why should authors be stripped of their rights because they write new prose for a pre-conceived volume?

  31. Kirby Olson says:

    It would be ok if they offered you a dollar a word, perhaps? Ask for a dollar a word. Or a Euro per word. They’re still getting a bargain if you think of it in hours spent on the project. Would you be making minimum wage, though?

  32. matt says:

    It’s hard not to imagine that an author’s rights are a good thing until you’ve looked at how bad things are getting from a publisher’s perspective. Or even the perspective of a scholar who wants to quote a few things. You want to publish an anthology of recent work with 10 pieces in it. You have to clear 10 sets of rights, along with, say, the rights for 10 quoted song lyrics, 10 images, 10 quotations from short poems, and 1 tiny bit of a screenplay (don’t even think about “fair use” and Hollywood people). Repeat this process each time you want to publish the work in a different form or market (paperback, ebook, online resource, foreign edition). The author of 1 piece is unlocatable, so you have to alter the work. The author of another wants an unusually high fee, and several other authors have “MFN” clauses, so the cost of publishing is now prohibitive. Or, an orphan work has fallen into another kind of limbo: you know which corporation or estate now has the rights to it, but you can’t convince their lawyers to take the time to verify the ownership you know is theirs, or you can’t get all parties to agree. 10 copies for a course packet? Is that fair use? We had better deny because we can’t be sure about all these clearances.

    All of the above is all still of course possible for an increasingly small set of commercially viable properties, but it prevents many worthwhile publishing projects from ever getting off the ground… at least not for another 75 years or until Disney forgets about the rights to Mickey Mouse…

  33. […] This is a fascinating–and appalling–look at the way Oxford University Press is now treating academics’ work–not as the intellectual property of the author, but as the Press’s to do with whatever they like. This is important reading. […]

  34. […] have to worry about such silliness, since academic writing isn’t work for hire. I mean, unless it’s for Oxford. Because Oxford University Press hates its authors, it […]

  35. Aaron Fox says:

    Well said, and I fully concur. I wouldn’t likely publish with Oxford in any case, but I’ll recommend against it to colleagues. This latest travesty joins a growing list of draconian attempts by academic publishers to monetize their catalogs and to capture intellectual property fully from a monopoly position that is fast declining.

    A. Fox
    Columbia University

  36. Kirby Olson says:

    Norm Hirschy’s response here seems to go against the general trend and makes me wonder to what extent the contract was misread.

  37. What I didn’t get from all this until I’d read the comment from the OUP staffer was whether you had actually done work for hire. It seems that they did offer you a modest “honorarium” when they commissioned the work. If you really did work on this article solidly for two months, I suspect that wouldn’t work out as a great hourly rate, but it would be interesting to know the actual figures involved.

    If the publisher wishes to take your work out of the academic paradigm and into the world of commissioned writing, then there should surely also be corresponding shift in financial expectation. Perhaps you should have a look at the National Union of Journalist’s published rates? http://media.gn.apc.org/rates/w1000onl.html

  38. Joan Hawkins says:

    Steve–I’m coming to this thread very late. What is the essay about? I’m still putting together my downtown film, video and tv culture 1975-2001 book and if the essay can be in any way tweaked to fit the parameters of my anthology, I’ll take it in a heartbeat. Our press, Intellect, does the standard transfer of copyright contract and has very liberal policies about quoting, reprinting and fair use.

    E-mail me if you’d like more information. And good luck with this– pity the poor scholar who’s trying to get tenure and doesn’t even realize she has the option to say no.

  39. Leonie says:

    Steve, your original post came to me via FB and a colleague’s post. Amazingly serendipitous – I too, was about to be sent a UP work for hire agreement. Without having read your post and all these comments, I would have just signed it…well i would have questioned it but not had the confidence to continue the questioning…so thank you all. there is a wealth of information and experience here that is much appreciated by someone just beginning to navigate this minefield. I’ve taken a long time to make a decision as i am only just starting out and i know what hard work the editor has done, but i have to say no too!

  40. […] been either ignorant or uncaring that their own research is often locked away and, in some cases, taken from them. Academics, as the ones who do the research and produce the articles, are the rightful copyright […]

  41. […] an update on the situation, Shaviro adds,  I don’t think I have permission to actually reproduce the words of the editor […]

  42. […] kikade in på The Pinocchio Theory för första gången på ett tag och hittade det här intressanta inlägget om Oxford Unviersity Press, som enligt uppgift där skall ha gått över till […]

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

  44. […] mega-profits on the backs of academics, libraries, and students. Some are fighting back both in the humanities and the sciences, but the costs can be as high as the journals prices. And I really would prefer […]

  45. Julian Wolfreys says:

    Go with Edinburgh University Press; copyright remains yours entirely.

  46. Rick Gruneau says:

    Got asked to contribute to an OUP handbook by an academic friend and, busy as I am, I never bothered to sign the contract they sent me, or read it for that matter, until well after I’d finished my chapter. But, when I finally got around to looking it over I was stunned to see it contained a ‘work for hire’ clause. After 30 years in academe and with chapters in many edited collections I hadn’t ever encountered this language before. So, I threatened to pull my chapter unless the contract language is altered. My academic friend who is editing the collection is choked of course, because the contract was sent in advance and he sees the fact that I wrote my chapter as a tacit acceptance of its terms. It was wrong to go forward without having objected to the contract in advance. But, at the same time, I think this is an important point of principle. For academic writing, short of well compensated contributions to managed textbooks, work for hire agreements are completely inappropriate and academics should resist them forcefully. Oxford have said they will consider my complaint and see if they can come up with more acceptable terms. We’ll see.

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