In my previous post, I linked to a piece on Ken Penders written by TheAmazingSallyHogan, and I said that I had a few minor quibbles with it that I'd come back to. So here they are.
Ms. Hogan says this about work-for-hire law:
Under Work for Hire contracts, a creator is paid a flat fee for producing content. All artwork, stories, characters, plots, symbols, etc. become the property of the employer (or a third party, which would be SEGA in this example). Under Work For Hire, a creator does not receive further compensation/royalties if their work is reprinted, if their characters are reused due to popularity, or even if their work results in merchandise/mass media. This is not a salaried position – at any point a publisher can decide to simply stop asking a creator to submit work.
While that's true of Archie's work-for-hire agreements, it's not true of work-for-hire in general as Hogan suggests. It is entirely possible to have a work-for-hire agreement that does allow for royalties, or other profit-sharing arrangements; for example, the audiobooks I've recorded were all produced under work-for-hire agreements that only pay royalties, with no money upfront. Likewise, while the creators who produce work for Archie Comics are freelancers and not employees, it is possible (and indeed standard practice) for an employment agreement to include a work-for-hire clause.
And while Hogan correctly notes, here, that Ken was not an employee on salary, she incorrectly uses the word "employment" several times throughout the article to describe his work for Archie. But a job is not the same thing as employment. Ken was not an employee; he was a freelancer and Archie was his customer.
Hogan goes on to say:
These “no royalties” contracts are no longer the norm in the industry for creators working extensively on titles.
This is true (though the qualifier "extensively" is unnecessary); DC and Marvel both have royalty clauses in their work-for-hire contracts (Comic Book Resources has discussed both DC's current royalty policy and Marvel's). Archie is not the only comics publisher that does not pay royalties, but it is lagging behind the Big Two in terms of compensating its creators.
The point of all this is that all work-for-hire means is: Alice hires Bob to create something, under a contract which stipulates that for legal purposes, Alice is the creator.
That's it. That's what work-for-hire means.
How Alice pays Bob, whether Bob is Alice's employee or Alice is Bob's customer, and any other details of the arrangement between Alice and Bob are separate issues, and not determined by whether or not the work is for-hire. All work-for-hire determines is who is the legal creator of the work.
Some work-for-hire agreements pay a flat fee, some work-for-hire agreements pay royalties, some work-for-hire agreements are between a freelancer and a client, some are between an employee and an employer.
But in Archie's case, Hogan is correct: money upfront, no royalties; freelancers, not employees.