The Copyright Series: Traditional Copyright

Yesterday, we covered Public Domain.

Despite the availability of other options, standard copyright remains the best choice for most freelance writers. It is the easiest to use, and offers the most protection for a creative work. Literally, it guarantees that the creator of a work is the only person with the right to copy that work, but protected actions also include creating derivative works, displaying the work publicly and sell or assign rights to the work. Currently, a copyright lasts seventy years.

In most cases, a writer does not need to do anything to copyright her work, at least in the U.S. Copyright is effectually automatic, as long as some element of originality is present. However, it can be easier to prove damages in an infringement case if either your work bears a copyright notice, or you have registered your copyright through the U.S. Copyright Office. Furthermore, unlike some other options, copyright has been thoroughly tested in court. Its extent is clear and if you must deal with a case of infringement, there is a clear procedure for responding to and remedying the issue.

However, a new ruling could create a problem for freelance writers relying on that ‘automatic’ copyright. Judge John M. Walker ruled against a group of freelance writers who had filed a suit against publishers who had posted their work in electronic databases after purchasing only first rights, on the grounds that the freelancers had not registered their copyrights on the works in question. (Businessweek’s article) Copyright law is still evolving and, for their own good, freelance writers should keep tabs on the changing nature of their primary protection.

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The Copyright Series: Public Domain

Yesterday, we covered Founder’s Copyright.

If a work is in the public domain, effectively no one can enforce any complaints against copyright infringement. Typically, this occurs because either the copyright has expired or because the creator of the work in question has specifically released it into the public domain.

I can only think of a few reasons a professional freelance writer might want to release material into the public domain (or use licensing like Copyleft or Creative Commons which effectively allows for uses of the work similar to public domain), such as to create interest in another product. For instance, a writer who has began to offer consulting services on a specific topic might release a white paper into the public domain in order to generate interest in the benefits of hiring her as a consultant.

Just because you cannot stop anyone from using your work if it is in the public domain does not mean that your work is wholly unprotected. For instance, if an academic researcher sites material you wrote, she is still obligated to cite your name correctly, and acknowledge that you were the original writer. Otherwise, it becomes an issue of plagiarism.

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The Copyright Series: Copyleft

Yesterday, we discussed Creative Commons.

Copyleft is essentially an attempt to license copyrighted material with no restrictions: a copyleft license allows any person with a copy of a given work to reproduce, adapt or distribute that work. It has been mostly used for software, but has, in a few instances, been used for various written works. There are some variations of copyleft licenses, primarily concerned with whether or not derived works are also considered copyleft.

Copyleft is often associated with open source works: works that are made with the intention of offering them to the general public at no cost. While this practice can have a number of benefits for quickly distributing a work, it is a less than ideal situation for freelance writers, who rely on payment for the various works they create, and for whom copyright provides an essential shield for their work. Because copyleft (and, similarly, Creative Commons) is very clearly about distributing works for free, it is not an option for most freelance writers.

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Work For Hire Clauses: Ownership of Related Items

This week, we’re focusing on ‘works for hire’ and the contracts that control them.

During the process of completing a writing project, you may do extensive research, covering a number of topics related to your client’s business. You may have intentions of rewriting the same material down the road with a different slant. Double check your work for hire contract, though. Depending on the interpretation taken, a clause controlling the ownership of materials related to your project might cover some of that research. Such a clause might look something like this:

WRITER recognizes that all records and copies of records touching CLIENT’s operations, investigations and business made or received by WRITER during the period of this agreement are and will be the exclusive property of CLIENT, and WRITER will keep the same at all times in WRITER’s custody and subject to WRITER’s control, and will surrender the same to CLIENT immediately upon the request of CLIENT, or upon completion to agreed upon services.

This isn’t the sort of thing that you have to worry about going to a court of law, but it can cause arguments with clients. There isn’t a great remedy, either. If a client takes it into their head to prevent you from writing about their company down the line, he or she may wind up being more trouble than they are worth.

Related items, by the way, are very different from proprietary information, which we covered earlier in this series.  Your clients have a legal right to protect their proprietary information and their business. They do not have a legal right to control over research you have done through outside channels, unless you grant one to them through a contract.

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Work For Hire Clauses: Location

This week, we’re focusing on ‘works for hire’ and the contracts that control them.

Location, location, location. We all know it’s important, but why should it matter when you’re signing a work for hire contract? These days, with so many freelancers working with clients all over the country (if not all over the world), it’s become crucial to decide what state laws cover the contract in question. I can’t offer much advice on international projects — I just don’t know much about how international contracts would work out.

If something goes wrong with your project, and you find yourself in a position where you need to take legal action, you could theoretically handle it in your state of residence, or that of your client. Your contract may stipulate which one, by establishing location with a clause.

Such a clause could read something like:

This agreement has been negotiated, executed and delivered in the State of NAME OF STATE. The parties hereto agree that all questions pertaining to the validity and interpretation of this agreement will be determined in accordance with the laws of the State of NAME OF STATE.

Because contract law can vary, and it can be expensive to handle a case in another state, it’s in your best interest to make sure that your contract is handled in your home state. However, your client has exactly the same situation.

There’s another reason to keep an eye on this sort of clause: if you, according to a contract, executed a project in another state, and were paid for it, legally, taxes on that income must be paid in that state.  The IRS isn’t going to get too picky — they’ll get their share of your income either way — but state tax collectors might. This tax trap isn’t limited to work for hire contracts, either. Any project you complete can technically be executed in a different state.

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Work For Hire Clauses: Proprietary Information

This week, we’re focusing on ‘works for hire’ and the contracts that control them.

Depending on what sort of work for hire project you’re working on, your client may provide you with information to complete the project. This information may or may not be considered proprietary — information that they effectively own. In the most technical legal sense, proprietary information must be some kind of intellectual property: something that can be copyrighted, trademarked, or patented, or can be considered a trade secret.

If your project requires you to have access to proprietary information, your client will likely include a clause in your contract, restricting your use of the information. Such a clause might read something like this:

The parties hereto acknowledge that during the course of WRITER’s service to CLIENT pursuant to this agreement, it will become necessary or desirable for CLIENT to disclose to WRITER a substantial amount of CLIENT Proprietary Information. WRITER fully understands that the maintenance of such information in strict confidence and the confinement of its use to CLIENT is of vital importance to CLIENT. WRITER agrees that the information and knowledge divulged to the WRITER by CLIENT or which WRITER acquires in connection with or as a result of WRITER’s services hereunder will be regarded by WRITER as confidential.

Generally, this is a reasonable action on a client’s part and it’s only rarely that such information is so useful to you that you’d do anything to use it on another project. Problems creep in, however,  with enforcement. I’ve run across clients that assumed handing a writer a stack of research they did on the internet was giving a writer proprietary information. Afraid not, kids. Neither can this clause limit your ability to write about a specific topic down the line.

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Work For Hire Clauses: Assignment of Copyright

This week, we’re focusing on ‘works for hire’ and the contracts that control them.

As I mentioned yesterday, since the Copyright Act limits works for hire to specific types of commissioned works, clients may rely on a complete assignment of copyright to make sure that they wind up with control of the work in question. Many work for hire contracts include an assignment of copyright clause even for covered commissioned works, as a sort of belts and suspenders type of protection.

A typical assignment clause might look something like the following:

Ownership or Work. Works shall be considered made-for-hire under the United States Copyright Act and, at all stages of development, shall be and remain the sole and exclusive property of CLIENT. WRITER further agrees to take all actions and execute and deliver all documents requested by CLIENT in order to evidence the assignment of CLIENT’s rights in and to the Work. WRITER further agrees to irrevocably assign the entire copyright in and to the works to the CLIENT.

The bad deal about this sort of clause is that you will not be able to sell reprint writes to this work get royalties, republish the material yourself, or even post parts of it on your website or blog. Well, you can, but you’ll have to license it from the new copyright holder, and the law says they can charge you for such a license.

There is a good side to this sort of thing. You have grounds to ask for much higher pay than your normal rates, because you’ll be losing out on later revenue opportunities. You’ll also be asked for work for hire contracts, typically, on material that you won’t be able to resell very easily. Business owners will often ask for this sort of clause on brochures, employee handbooks, etc. You can also reuse material by rewriting it with a new slant — sure, you’ll still have to sink some more time into it, but it’s a way to continue making money from your knowledge.

I’m not a lawyer, but my litmus test on acceptability for signing away my copyright is based on two questions: Is it creative writing of any sort? I won’t sign away my rights to any fiction, poetry or creative non-fiction projects (i.e. essays). And, is the pay going to make up for the fact that I can’t reprint the material? I don’t have a set rate that makes it worth my while, but after a few contracts and getting burned once or twice, you learn how you value your own time.

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