Sample Contract: Work-for-Hire
This is the first contract in a series of newly revised sample contracts that AIR will be releasing in 2020.
“Their Idea”: a work-for-hire contract meant to be used by producers who are coming in to produce someone else's project or vision.
This sample contract is primarily geared towards the services of independent producers who are hired by a company or station (the “Client”) to produce an audio feature or a podcast episode (or series of episodes) that the Client has already designed, developed or envisioned.
This is a work-for-hire contract meaning that the Client is considered the legal author of the work. In most cases, this contract is not appropriate for situations where an independent audio professional has pitched or developed the work in question. See our licensing contract for that purpose.
AIR’s sample contracts are provided as an educational resource for AIR members. They are designed to model and promote fair terms between independent audio professionals and the shows, stations, and companies that license or commission work from them. Check out all of AIR's sample contracts.
These sample contracts, in concert with our Code of Fair Practices and our work on rates are an important resource for independent professionals in radio and podcasting and for the shows and stations that collaborate with independents to produce great work.
The contracts, and the notes we’ve added to help you make sense of them, are provided as an educational resource. Every project is different and a sample contract is never a substitute for one-on-one legal advice. We worked closely with a lawyer to develop this sample contract and accompanying annotations, but “a lawyer” is not the same as “your lawyer.”
Legal language can be dense, and if your eyes glaze over trying to read it you’re not alone. In most cases it is just English and if you read it over a few times it will start to make sense. But one thing is certain: you shouldn’t sign a contract that you don’t understand.
We are grateful to Quinn Heraty*, an attorney who works extensively in the podcast space, who updated our sample contracts and worked closely with us to ensure the accuracy of the annotations we’ve included to help make sense of the contracts.
* Quinn is a lawyer, but she’s not your lawyer. The annotations and sample contracts are intended to be educational resources for AIR members. Each project, producer, and client will have needs that will not be addressed by the annotations and sample contracts, and none of the information provided here is intended to constitute legal advice or establish an attorney-client relationship. Producers should engage their own attorney to obtain legal advice on any legal matter, contract, or project. Any links to third-party websites are for your convenience only, and don’t constitute an endorsement or recommendation by AIR or Heraty Law.
How to Use This Contract
You will need to download the appropriate sample contract and edit the language to meet your needs. Anywhere that you see language [IN BRACKETS AND ALL CAPS] you should replace the brackets and caps with specific details. So this:
2. Term. The Term of this Agreement will begin on [DATE], when Producer begins to render the Services, and will continue until [DATE or CONDITION, such as “delivery of final audio”].
Becomes this in the final contract:
2. Term. The Term of this Agreement will begin on October 5, 2020, when Producer begins to render the Services, and will continue until delivery of final audio.
Capitalized Contract Terms
Terms defined in the contract will almost always be capitalized. For example, you or your company might be defined as the “Producer” at the beginning of the agreement, and the show or company hiring you might be defined as the “Client.” The production you’re working on might be the “Project” or the “Services”. Whenever you see Producer, Client, or Project in the contract, those capitalized terms will refer back to the definitions earlier in the contract.
For example, in one sample contract, we define the producer’s services as: “Produce an audio feature of approximately forty-five (45) minutes, according to specifications provided by Client.“
Instead of referring to “producing a 45-minute audio feature,” we just say “Services” for the rest of the contract.
It is customary in contracts to drop the “the” before a defined party, so instead of saying “the Producer” we just say “Producer” as if Producer was someone’s name. When we drop the “the” before a party, a sentence in a contract might look like this: “Producer renders the Services and Client pays the Compensation.”
This convention is important because sometimes there is a big difference between defined, capitalized phrases and non-defined lower-case phrases. For example, “Term” is often defined as the length of time the agreement is in effect, while the word “term,” in lowercase means any provision of the agreement. A “Party” is usually one of the people that are making the agreement, and “party” usually means someone who is not part of the agreement. So whenever you read a contract make sure you keep an eye on words that are Capitalized and words that aren’t. Sometimes capitalization changes their meaning.
Scope of Work
A “Scope,” “Project Scope,” or “Scope of Work” is usually attached to a basic agreement. The Scope might describe the actual story and deliverables. How many episodes and how long are the episodes? Are there any additional deliverables? Does the client expect release forms from interviewees? Photos or text for a web story? A thorough scope of work can help avoid frustration during a project by ensuring that both parties know exactly what the final deliverables are going to be.
We’ve included an example of a Scope of Work that you can adapt to describe your project.
Under US law, what we call “copyright” is a collection of exclusive rights in creative material. Those exclusive rights are the right to:
- reproduce the material -- literally, the “right to copy” it,
- prepare other works based on the material -- these are called “derivatives” or “derivative works,”
- distribute the material to the public,
- perform the material in public,
- display the material in public, and
- in the case of sound recordings, to digitally transmit the material publicly.
The person who owns the copyright controls and benefits from each of these exclusive rights, and they can give someone else permission or a license to exercise one of those exclusive rights (usually in exchange for money or for another benefit).
This is a work-for-hire contract.
This contract includes work-for-hire language, which means that the client, not the producer, owns the copyright and gets to make decisions about copying, distributing or creating derivative works from the project. This contract is appropriate for someone who is delivering work that they didn’t design themselves. For instance, if a grocery chain hires you to create a series of podcast episodes about their products, under the direction of their marketing team, a work-for-hire contract would be appropriate. A work-for-hire contract might also be appropriate if the author of a book hires you to develop a series of episodes based on the contents of the book, or if a network hires you to produce a podcast that is a companion piece to a television show they are broadcasting.
Notes on the Contract Language
Section 3.b. Compensation: We recommend day rates over hourly rates -- AIR’s guide to day rates will help you calculate a fair day rate. It will sometimes make sense to put a cap on the number of days, for example:
“We estimate that production of this Project will require not more than 3 days per feature. Producer and Client will mutually agree on any additional production days.”
Section 10. Travel and Expenses: In some cases it may be appropriate to replace this section with the following:
“Travel will be handled according to Client’s travel policy. Client will reimburse Producer for any expenses incurred by Producer that Client has pre-approved in writing. Client will reimburse Producer for reimbursable expenses within fifteen (15) days of Producer’s submission of the invoice to Client.”
Section 11. Event of Default, Cure Period: This contains a few legal terms worth defining:
A “material breach” means that the breach was significant. For instance, the failure of Client to timely pay Producer the amounts due to Producer. In that case, the “method to cure” just means “how the breach can be fixed.” For example, if the Client has not timely paid an invoice from the Producer, then the “method to cure” that breach would be the Client’s prompt payment of the invoice.
Section 13. Force Majeure: This term is defined in the contract, but it just means “forces beyond anyone’s reasonable control.”
Section 15. Confidentiality: What is considered “confidential” or “proprietary” information can be very broad, but examples might include details about the size of their audience or an upcoming story or project.
Sometimes you’ll see language like:
“any information about the identity of financing sources for the Project, the budget of the Project, the terms of this Agreement, and terms of any and all agreements pertaining to the Project.”
“any information disclosed by Client and related to: (i) the editorial plans of Client; (ii) the operation of Client’s business, including editorial properties, processes or methods of development, editorial calendars, story ideas, and information relating to Client’s publishing methods”
There are usually four standard exceptions to what might be defined as “confidential” or “proprietary” information. They are:
“information that: (i) was known to either party prior to the time of disclosure by the other party; (ii) was in the public domain prior to the time of effective date of this agreement, or which comes into the public domain through no fault or breach of the agreement by the other party; (iii) was disclosed by a third party that was under no obligation of confidentiality to the disclosing party; or (iv) has been independently developed by a party without reference to or use of the disclosing party’s confidential information.”
Examples of breaches of confidentiality might include: leaking the Project storyline prior to the Project being distributed to the public, disclosing Client’s business plans for the Project, or posting other details about the Project prior to the Project being published.
Section 17. Assignment/Delegation: In the case of a services agreement, like this producer’s agreement, “assignment” and “delegation” essentially means subcontracting your service obligations to a third party. In most cases, a Client is hiring a Producer because of that Producer’s skill and reputation, and the Client will not want the Producer to subcontract out the Producer’s services to someone else without the Client’s knowledge and consent. (In other agreements, “Assignment” refers to the assignment of rights in the project, not an assignment or delegation of services.)
Section 18. Warranties, Representations, and Indemnification: "Warrants and represents" is language you'll see often in contracts. It is just a stronger and more formal way of saying that you are confirming that something is true. “Indemnification” means that you will be responsible for any costs if it turns out that the things you “warranted and represented” were not true. For example, if you warrant and represent that you didn’t plagiarize another person’s work for the Project, but it turns out that you did plagiarize another person’s work and included it in the Project, and that person sued the Client, then you might be responsible for the Client’s costs related to the plagiarization.