photo credit: flakeparadigm
If you are a freelance writer/blogger, your copyright is quite literally your livelihood. After all, if you lose the ability to sell and trade on your work, you lose your revenue stream.
However, many freelance writers are woefully unaware of the copyright issues that surround their craft, either finding the issues too confusing or relying instead on misinformation and bad advice.
If you make your living selling your work, no matter what the content is, you owe it to yourself and your future to understand the laws that surround your craft and that is a big part of what Plagiarism Today is about.
However, for freelance writers, here are a few specific tips and points to be aware of in copyright law. Needless to say, this isn’t a thorough overview of all the issues you need to be aware of, but rather, just a few of the finer points that are often misunderstood.
1. Work for Hire May Not Apply
Work for hire law (PDF) is a sticky issue but, for most freelance writers, it doesn’t apply. If you are not an actual employee of the company that you’re writing for, which a freelancer generally wouldn’t be, then for a work to be considered a work for hire it has to meet two conditions:
(1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.
The nine categories referenced in that paragraph are as follow:
(1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
Clearly, a freelance writing project does not fit neatly into any of those nine categories though it may be considered a contribution to a compilation sometimes.
What this means is that, in many cases, though paid for their work, a freelance author has the copyright in it and can do with it what they please. This includes reselling the work to others, stopping infringement and so forth.
The question then becomes can an author demand removal of a work that has been paid for? The answer is less clear. When you sell a work or write it for a site, there is at least an implied license to allow the customer to use it (what else did they pay for?) but how long the terms last and how other changes in the situation affect it remain unclear.
This is why it is best to get a contract with every project though, bear in mind, buyers can protect themselves with contracts to, mandating exclusivity for example.
2. No Registration, No Lawsuit
Though you have copyright protection in a work the moment it is fixed into a tangible medium of expression, to enforce those rights you need to have a registration on file with the U.S. Copyright Office and, ideally, you need to have done so either within three months of publication or before the infringement took place.
Without a registration, there is no means of filing a lawsuit in the U.S., unless you are a foreign copyright holder, and without a timely registration there is no way to collect statutory damages or attorney’s fees, which makes a suit impractical in most cases (this is true for both U.S. citizens and foreign copyright holders).
If you’re serious about enforcing your legal rights, you need to regularly register your work and maintain those registrations. Without them, though you can file takedown notices and take other action, you can not take the case before a court.
3. Attribution Not Always Required
Though some freelancers ghostwrite content by choice, and are paid well for it hopefully, others do not and are upset when they don’t receive attribution for their work.
Unfortunately, in the U.S., there is no protection for moral rights, at least not for writers and non-visual artists. as such, Attribution is usually not a requirement for such content use, unless it is stipulated in the contract.
This is an area where the U.S. deviates sharply from other countries, which usually have a very robust protection for moral rights and mandate that attribution be included, even when the copyright in the work has been sold.
However, even in countries with moral rights, authors can often times sign away their right to enforce them, which effectively negates them and such clauses are common.
4. Copyright Transfer Requires a Signed Contract
This is a related issue to the work for hire one mentioned above, but it is important to note that the law very explicitly states that, without a written and signed contract (at least one signed by the original rights holder), a transfer of copyright can not take place.
According to the law, copyright is very much like any other piece of property you have in that you can sell it, lease it, rent it or give it away. However, you can not transfer a copyright without a signed agreement, meaning that oral agreements and “handshake deals” are not valid.
In short, if you have not signed over the copyright to your work, you haven’t given up your copyright.
That being said, in many cases, as with the terms of service on various sites, you may grant licenses of use that can, in some cases, behave much like a transfer of copyright. It is a situation similar to being the owner of a car but not being able to drive or otherwise use it as those rights are assigned to someone else.
5. The Messy World of Joint Authorship
Under copyright law, the copyright of a work almost always transfers directly to the creator of it. But what happens if more than one person collaborate on a work? Things often get messy.
Joint authorship is a very confusing and difficult area of copyright law but the fundamentals are pretty easy.
First, all authors have an equal share of the work, regardless of the size of their contribution, and all can independently, without the agreement of the other parties, enter into non-exclusive license arrangements (though revenue earned has to be shared equally). However, exclusive licenses require the input of all authors.
Second, each author can do what they want with their portion of the copyright, including selling it, leasing it, etc. The exact same with any other copyright they hold. Finally, the authors are all given an undivided share, meaning that they own part of other’s contributions as well as their own.
However, a work only qualifies as a joint authorship when the authors work together “with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” In short, if the contributions can be easily separated, such as separate chapters in a book, joint authorship doesn’t apply.
Enter into joint authorships at your own risk and, if you do, always have a clear contract and clear understanding of what the rules are before going in. Joint authorships have destroyed many good friendships and partnerships over the years.
If you don’t understand what your rights are in your works, you can not enforce them or exploit them and, if you’re a freelancer, that can have a very negative impact on your business.
The same as construction companies need to know building codes and delivery companies traffic laws, it is important for freelance writers to understand copyright law.
Once again, this is not meant to be a thorough overview of copyright law for freelancers, but rather, an overview of some of the most commonly misunderstood points of the law that relates to them. Any freelance writer would do well to visit the U.S. Copyright Office site and learn more about the law if they don’t know it well already.
A few hours of education can save you tons of money and tons of headaches down the road.
It is a worthwhile investment for every freelance writer.