Boilerplate Language

When the occasion arises that you are given a contract or written agreement to sign off on, be sure not to ignore all of the so-called boilerplate language toward the end. Although it is common to place most of the general terms of a contract after the unique sections - such as the obligations, compensation and term - much of this seemingly inconsequential, innocuous and irrelevant language can be anything but that.

For instance, most contracts give the jurisdiction and governing law that will be used to interpret the agreement near the end. If there is a conflict in the future and you don’t want to attend meetings and hearings and have your lawyer handle the case in another county or state (or have to retain an attorney there who can), be sure to look at this now. Also, see if there is anything that relates to alternative dispute resolution (ADR), like arbitration. If there is an arbitration clause, is it binding or non-binding and does it require you to waive your right to trial? Additionally, many agreements contain indemnification clauses within the miscellaneous sections, which can have costly consequences and were discussed in a previous post. Terms like these can have a significant impact on your ability to remedy any potential problems.

In addition to reviewing the standard paragraphs that already exist in the contract, there may be some missing that you will want added. Some important terms include the relationship of the parties, prior communication and supplemental documents, assignability, amendments, attorneys’ fees, and notice. The agreement may also say that each side has had the opportunity to have their respective legal counsel review the document, which probably is a good idea even if it doesn’t.

While many of these things may not be deal breakers, they are important and, thus, should be paid attention to, discussed with the other side, and understood by you before entering the agreement. Like the saying goes, “Read the fine print” and make sure that the devil isn’t in the details.

Work for Hire

Traditionally under US copyright law, the rights to a work generally are held by the person creating the work. However, there is an exception to this rule for pieces created on behalf of another. These are called “works made for hire.”

In order for the rights to a certain work to belong to an individual or company other than the actual creator, the work must have been made by an employee within the scope of his or her employment or by someone pursuant to an agreement for the work’s production. If an independent contractor or freelancer creates or contributes to something that has been commissioned by another, the agreement must expressly state that the work is to be considered a work made for hire and, thus, that the rights are to be owned by the party ordering the material.

Accordingly, the presumptions are that works made by an employee are owned by the employer and that works created by an independent contractor are the property of the contractor. These presumptions may be overcome by explicitly stating in writing terms to the contrary, by having both parties sign the agreement, and by doing so before work has begun. Additionally, while the work made for hire principle applies to copyright law, there are similar rules dealing with other forms of intellectual property, such as patent law’s “hired to invent” doctrine.

Whether commissioning a work or being hired to create one, be sure to have the agreement specifically state what is being created and who owns the rights to it. If you are the hiring party, do not think that just because you paid for it that you own the copyright to it. For creators, keep in mind that once ownership is transferred to another via a work for hire agreement, that individual or company legally is considered the author with all of the rights of ownership in the work, including credit and control. If you wish to be credited as the author of the piece, be sure to get it in the agreement and do not assume that it will be attributed to you otherwise. Lastly, many work for hire agreements contain an assignment of the entire copyright in the work in case there is some kind of problem with the work for hire transfer.

If you need a work for hire agreement or are entering one, it is best to consult with an attorney who specializes in this field to help you understand the transaction and relationship and to assist you in protecting your rights and interests.