[thelist] RE: Charging for copyrights [long]

Carol Stein techwatcher at accesswriters.com
Wed Aug 6 14:04:07 CDT 2003

First, we (writers) do not sell "copyright." Rather, we charge for certain
well- or ill-defined *publication* rights, such as "first English-language
exclusive print publication rights in the U.S. between 2003 and 2004." I
probably made that one up, but you can sell any term you can come up with,
if you find a buyer. Terms defining publication rights definitely can
include medium of publication; language; place; and time, date, and
frequency restrictions.

The "new" copyright law is meant to be simple and clear and very protective
of writers, but has become arcane again (largely because of commercial
"pressure" on judiciary, one must assume). The law is: If you write
anything on anything with anything, the moment you write it you thereby,
immediately, and without registration, own the copyright to it. It's an
"international" law (i.e., it applies insofar as nations abide by and
enforce it). You can lose a copyright by failing to defend it, btw (but in
that case it falls into the public domain, not to the thief).

The following are the exceptions:
- What you are writing is a video script/screenplay; when you sell it, you
are selling the actual copyright. Historically, producers buy and own all
rights to a film/video script, for complex reasons... This is one reason
screenwriters are relatively highly paid (though it doesn't hurt that they
have a union), although playwrights unquestionably own their copyrights...
Except that within the past decade the director or choreographer or
something of a new musical (Rent) sued for the rights of the playwright,
perhaps because he died just before his first work reached Broadway. Oh,
and also actors own the right to be hired in a new play if they were in an
"Equity workshop" performance of it, so some copyrights to plays are
encumbered by the need of its producer to buy out the actors' " performance
rights." (Do you think I could make this stuff up???)

- You have been hired, either as freelancer or employee, and your CONTRACT
states otherwise. Btw, you need not have been hired as a writer for this to
become a problem: If you never thought of writing anything, and were hired
as (for instance) a janitor, you still need to check whether you may have a
problem when that brilliant idea for a creative work occurs to you, even if
you retired years ago. (Fortunately, seriously restrictive contracts with
employees are a relatively recent occurrence.) Look for the words "work for

A "work for hire" specifically refers to "material" the copyright for which
would *otherwise* belong automatically to the author (since that's the
law). Because it is agreed ahead of time that it IS a "work for hire,"
however, the material belongs instead to whomever contracted for it. It
doesn't matter if you're employee or freelancer or whatever. To protect
yourself, try to make sure the "work for hire" is itself well-defined
(i.e., software to accomplish x, or technical manual describing z), or it
might be assumed (by idiot jurists) that it includes everything you write
during and even after your contract with a specific company.

The law doesn't much care whether you are 
(1) working on your own time or not, or 
(2) working on material related to your paying work or not  (in the case of
your being an employee).
If you wrote it, you own it EXCEPT as your contract says otherwise -- or
the judge feels otherwise! The latter is why you almost certainly need a
decent lawyer well versed in this area.
	Note that there have been some very peculiar circumstances, including
freelance journalists writing and selling factual stories, then needing to
defend their copyright against the periodical in order to sell "exclusive
rights to the story" to a film production company which approached the
journalist, interested in producing a *fictional* version. This happened
regardless of the fact that most freelancers specifically sell "one-time
serial publication rights" in standard contracts with periodicals. Some
contracts with consultants, also, have been so all-encompassing that
individuals who wrote, for example, a novel on their "own time" have been
sued by employers looking to gain the proceeds of their fictional work --
even if everyone admits the novel's completely unrelated to the company's
field. (Presumably, if more people wrote their own software, we would have
seen their copyrights challenged by employers who previously employed them
as security guards, or whatever.)

In short, this whole area is discouraging to writers (and one presumes,
programmers), and looks utterly ridiculous to anyone with an ounce of
common sense -- therefore, again, unless you're a lawyer or fully
understand your contract, get a lawyer.

Cheers --

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