by Susan Spann
Last month, I kicked off a new #PubLaw guest series here at Writers in the Storm with a brief look at copyright law and the rights it covers.
When authors learn that copyright protection is automatic and attaches to qualifying works at the time of creation, many assume that means the author owns those copyrights.
How could I not own my copyrighted works? Many authors ask. I wrote them, so I own them. Right?
Usually, but not always.
Copyright law recognizes several types of copyrighted works which are not owned by the creator, or which are owned by the creator in partnership with another person or entity.
Let’s take a closer look:
1. The General Rule: creative works are owned by their creator.
As a general rule, ownership of copyrighted works, and all the related rights, belongs to the author or creator.
However, an author may license, sell, or assign part (or all) of those rights to another person or entity.
In the case of a license—such as a publishing contract—the author can retain full ownership of the copyright itself, and merely grant permission for publication and other uses of certain rights. (Note: Be sure your contract states, without ambiguity, that the author remains the sole copyright owner. Unscrupulous publishers sometimes try to grab copyrights via contract.)
In the case of a copyright sale or transfer, the author can transfer ownership to another person (or a business entity) at which time the recipient becomes the copyright holder. This doesn’t change the copyright term, however – that remains “life of the author plus 70 years.”
2. Works for Hire belong to the person (or entity) who commissioned or paid for the work.
Where a person (or entity, such as a corporation) hires an author to write a “work for hire,” the copyright to the finished work does not belong to the author. Copyright to works for hire, along with all related and subsidiary rights, belongs to the person or entity who commissioned the work for hire.
Courts use a two-pronged test to see whether copyrighted works (or other creative works) are works for hire. If either prong is met, the work is a work for hire which belongs to the person or company that commissioned or arranged for the work’s creation:
First Prong: Was the work prepared or created by an employee in the scope of his or her employment? In English: did an employee create the work as part of his or her job?
Second Prong: Was the work specially ordered or commissioned for use as
(1) a contribution to a collective work,
(2) part of a motion picture or audio-visual work,
(3) a translation of pre-existing material,
(4) a supplementary or derivative work,
(5) a compilation,
(6) an instructional text,
(7) a test, answer key, or an atlas? And if so, did the parties expressly agree in a signed, written instrument that the work will be considered a work for hire?
Note that the second prong (which applies to freelancers and other independent contractors) requires a signed instrument or contract which states that the work is a work for hire. Without a writing, the copyright doesn’t transfer and the creator continues to have a claim for copyright in and to the work.
However, it’s vital for freelance authors and other creative contractors to always, always obtain a contract before starting work on a commissioned or freelance project. The contract must be signed and must indicate who owns the copyright on the finished work.
Without it, you’re risking loss of your copyrights.
Note also that even if no contract exists, the entity who commissioned the work might try to claim the work is a work for hire, which means an expensive copyright lawsuit to determine ownership of the finished work. Lawsuits often cost tens of thousands of dollars in attorney fees (even if you win) – getting a clear contract up front is always faster and cheaper than litigation.
3. Joint Works belong to all authors or creators in equal, undivided shares (unless a contract says otherwise).
“Joint works” are copyrighted works with more than one co-creator. As a general rule, joint works belong to all co-authors in equal, undivided shares, meaning that each owns a percentage of the whole. This rule holds as long as each co-author’s contribution contains copyrightable content.
Smart co-authors enter into a contract before the work is written, stating their relative ownership percentages and which responsibilities each co-creator will undertake regarding creation, marketing and sales of the finished work. Include all relevant details and arrangements.
Consult a copyright attorney to help you draft the document – and remember: friendship isn’t a valid excuse for not creating a contract. Memories fade with time, and they fade even faster when tensions arise. Put the agreement in writing while everyone is getting along.
Join me next month when we investigate copyright language in publishing contracts, and how to ensure you protect your legal rights.
If you have questions about this or other copyright issues, I’d love to hear from you in the comments!
Susan Spann is a publishing attorney and author from Sacramento, California. Her debut mystery novel, CLAWS OF THE CAT (Minotaur Books, July 2013), is the first in a series featuring ninja detective Hiro Hattori. The sequel, BLADE OF THE SAMURAI, will release in July 2014.
Susan blogs about writing, publishing law and seahorses at http://www.SusanSpann.com. You can also find her on Twitter, @SusanSpann, or on Facebook.
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Reblogged this on Chronicles of a 40-something Former Nurse Wannabe.
Thank you - I'm glad you found it helpful!
Susan, you're so right - I've seen nightmare stories about people who signed their rights away in a bad contract. It's up to US to watch out for our best interest! Thank you so much for your expertise and kind guidance here at WITS.
Thank you for giving me the chance to guest blog here. I really appreciate it.
Authors sometimes get so caught up in the "glamor" of having an offer that they forget that publishing is a business, and that an offer needs to be evaluated with an eagle eye. The author needs to read the terms and evaluate whether or not the deal is really in his or her best interests. Sometimes the best choice is to walk away...but that's a gut-wrenching choice, and it definitely takes strength.
I can't imagine co-authoring a work, but if I did, I'd imagine it would be logical and prudent to get a contact in place first. I love these #PubLaw posts, Susan!!
I've written a number of co-author contracts over the years, and also seen what happens when authors fail to contract in advance. Sadly, things can get really ugly when there isn't a contract, even when the authors were formally best friends. (I've also seen friendships saved by a contract down the line--so it works in the positive too.)
Great blog Susan and very interesting. I'm getting ready to e-pub and was wondering I should get a copyright before a books up on Amazon.
You don't need to register copyright before the book goes up, per se, but you do need to register within 30 days of publication, if possible, to ensure that the copyright office has time to register the work (and let you know about any issues) within the six-month registration window. You can register after that, too, but the six-month window is what allows you to obtain all of the available legal damages for infringement -so I always advise authors to register as soon as publication occurs (unless the publisher handles registration for you).
Reblogged this on jbiggarblog.
This is a valuable post. I also have a post on Copyright coming out later this month on CommuniCATE Resources for Writers. May I please add that the Copyright laws change from country to country. Check the legalities of where you are at. One set of rules does not apply Internationally.
Cheers and thanks for a great post.
Good point, Cate. My posts are always geared toward U.S. law, but the law of copyright does vary (sometimes widely) across jurisdictions. Authors should absolutely know which laws apply to their situation.
[…] Do You Own Your Copyrights?. […]