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By Root 4096 0

the work, period. You can't go back and sign a WMFH agreement—in fact, backdating an agreement of that nature will most certainly invalidate it. If you sign a WMFH agreement prior to the creation of the images, make sure that at the same time, you get a license for, at a minimum, your portfolio from the author and owner of the images you are about to create. In situations in which you're delivering photography under a WMFH agreement to a stock agency and, say, you go to shoot the U.S. Capitol (or other landmark in your town) at sunset or on a bright, sunny spring day and deliver them to the stock house, you will find yourself in a legal predicament if, separate from your work for them (either off hours or after you've left), you return to a similar spot and make new photos. Those new photos could infringe on the previous photographs, whose copyright is owned by the stock house.

At one point not too long ago, I was presented with the following terms in an "agency" contract:

Ownership of Assignment Images.

Photographer hereby acknowledges and agrees that, unless subject to a separate written agreement between Photographer and the Company, all Assignment Images:

(i) have been specially ordered and commissioned by the Company as a contribution to a collective work, a supplementary work or other category of work eligible to be treated as a work made for hire under the United States Copyright Act;

This language attempts to portray the work I would have been delivering to them as eligible for WMFH status. This is a problem because there are only nine categories of work that are legally allowed to be categorized as WMFH under part 2 of the definition of Work Made for Hire in the U.S. Copyright Office's Circular 9. They are:

A work specially ordered or commissioned for use as a contribution to a collective work

As a part of a motion picture or other audiovisual work

As a translation

As a supplementary work

As a compilation

As an instructional text

As a test

As answer material for a test

As an atlas

…if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Further on, in Circular 9, it states:

If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.

Work shot on assignment for photo agencies is, in my opinion, on shaky footing and could well be rendered as not fitting within the nine eligible categories of WMFH. As such, the contract stipulates in the clause immediately following it:

(ii) will be deemed a commissioned work and a work made for hire to the greatest extent permitted by law;

Hmmm. Seems I'm not the only one who thinks that there is cause for concern about the classification of the assigned photography as falling within the nine categories—attorneys do, too. In fact, it is not enough that you be given an assignment to cover a news event or produce scenic stock of a city; the photograph must be created at the direction and supervision of the commissioning party. Further, if you're assigned to cover a movie premiere, and en route you come across breaking news of a fire and you make images of that, the client could argue that it was a part of the assignment because they were paying you. But, in fact, they didn't request that you make the photographs of the fire, nor was their request the motivating factor for you to make the photos, so the images would fail the tests that are necessary to create a permissible WMFH circumstance. This direction could be taken a step further. If your client stipulates, "I need tight headshots and full-lengths of the star of the movie," anything