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.