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Thomas G. Field, Jr.
[Prepared for the New Hampshire Writers' Project 12th Annual Writers' Day Conference, March 2005]
Contents
Introduction
Copyright encourages the creative efforts of authors, artists, and others by
securing the exclusive right to reproduce and otherwise derive income from
their work.
Copyright arises automatically once some aspect of a project has been fixed in
a tangible medium (including digital media). Notice is not required.
Registration is required only if legal action is warranted. However, notice and
prompt registration provide important remedial advantages in the U.S.
Such matters, as well as fundamental distinctions based on ownership and key
issues to consider when transferring rights are addressed below.
Deposit & Registration
Formalities are unnecessary for copyright. Appropriate kinds of work (all
forms of text, including software) are protected by copyright when they are
fixed in a tangible medium, whether or not they can be directly perceived by
human senses.
Copyright notice is unnecessary, but it eliminates a potential defense of a
copier.
Owners of domestic works need only register before bringing suit, but better
remedies (statutory damages up to $150,000 and attorney fees) can be obtained
if works are registered promptly. For published works, that means within three
months of publication. If the work is unpublished, registration must predate
any unauthorized use for which relief is sought.
Deposit requirements. Whether one registers or not, copies of most
domestic publications must be deposited with the U.S. Copyright Office in
Washington.
Information about exceptions for such things as expensive limited editions or
special requirements for works distributed only digitally is available at the
Copyright Office website. In any event, sanctions for failure to deposit are
not imposed until a publisher fails to respond to an official demand for
copies.
Registration requirements and effective dates. Registration is
inexpensive and often straight-forward. Simple forms, containing basic
instructions, are available online. Registration is accomplished by returning a
form (TX for text works) with a $45 fee and identifying materials as explained
on the form. Registration certificates may take several months to issue, but,
if everything is in order, they are effective as of their filing dates.
Single work or multiple works? A single author may register a group of
works for a single fee. This can save money, but some argue that rights in
individual components are not as strong as they would be if they were
separately registered. This choice probably should not be made without close
study or advice going well beyond anything that can be offered here.
Copyright Ownership and Duration
Employees. Absent contrary agreement, employers own all rights in works
created by their employees within the scope of their employment. These are
called "works for hire." Copyright in such works (as well as those created
anonymously or under pseudonyms) last for 120 years from creation or 95 years
from publication.
Commissioned works. Under limited circumstances, commissioned work may
be "for hire." When freelance authors agree in advance and in writing, their
work may be so regarded if, for example, it introduces or illustrates a larger
work. A translation may also be so regarded, but agreeing that most
free-standing manuscripts are "for hire" is unlikely to make it so.
Freelance works. Some commissioned work aside, freelance authors own
copyright in their work unless they later transfer rights to others.
In that regard, the Supreme Court's 2000 Tasini decision warrants
mention. Since then, freelance newspaper work, for example, cannot be included
in electronic data bases such as Nexus, without explicit permission. Many
writers complain, but, now that implicit permission does not exist, informed
publishers are likely to insist.
Copyright in not-for-hire works extend 70 years beyond the lifetimes of
identified (or identifiable) authors. Also, assigned rights may be recaptured
after approximately 35 years. This provision, applicable after Jan. 1, 1978,
will began to have an effect in 2013. That may discourage publishers' use of freelance work with a possible shelf life beyond 35 years, but it shouldn't. Publishers may continue to use freelance work in ways that predate exercise of a termination interest.
Joint works. Absent agreement, all coauthors are free to use joint
work, but any who receives income must share it equally. For such works, the
70-year component of the copyright term does not begin to run until death of
the last surviving coauthor.
When Should Freelance Authors Register?
As noted above, the best possible remedies are available if registration
predates infringement of unpublished work. It should, however, also be noted
that the need to sue is lessened by carefully selecting people with whom to do
business. The results are likely to be more satisfying than being tied up in
copyright litigation.
Moreover, in the case of contributions to periodicals or anthologies, for
example, when copyrights of multiple authors are held by the publisher, one
notice and one registration should serve the needs of all. If the publisher has
agreed in writing to transfer rights back after publication, it is difficult to
understand any author's need to hold all rights prior to then. For more on this topic, see Publishers' Rights and Wrongs in the Cyberage.
Selling and Licensing Rights
Even when copyright owners are faced with take-it-or-leave-it propositions,
they should understand their agreement. One way or another, each of the
following issues should be considered and resolved (preferably in writing).
- If the work is commissioned, is it or can it be regarded as "for hire?"
- If not, what rights are being transferred? All or them, only the right of
first publication or, e.g., a right to use or reproduce for other limited
purposes?
- Can the purchaser use the work (or parts of it) in another product line or
change the method of selling it?
- Can the purchaser license others to use any part of the work in the same or
unrelated kind of products? If so, must additional payment be made, on what
basis?
- To what extent does a transfer limit the author's rights to produce similar
works? Authors must understand that, as between them and others to whom they
transfer copyright, they have no more (and probably fewer) rights than total
strangers.
- What happens if the purchaser loses interest or goes out of business? Do
rights return, or is the work orphaned, with rights being held by uninterested
or unidentifiable people?
- Will payment be made, for example, as a lump sum or as royalties?
- If royalties are due, how frequently will they be paid and how will they be
computed?
- Does the purchaser seek indemnification for the cost of defending
third-party suits? This provision is common, but anyone can sue anybody for
anything! Even if authors win, expenses can be high; they should consider
whether they have insurance to cover the risk or, if not, whether they are
being paid enough to accept it themselves.
Infringement and Limits to Copyright
Substantial similarity. The legal test for copyright infringement is
"substantial similarity." This translates (roughly) into whether ordinary
observers would regard a work as copied in whole or in part from an earlier
one. But more is involved.
Works in the public domain. When copyrights expire, anyone is free to
use a work. Yet, as noted above, their duration is substantial and vary
according several factors. See, for example, Professor Laura Gasaway's chart,
When Copyrights Expire.
Expressions, not facts or ideas, are protected. Reporters (or their employers) have rights in stories describing events; they have no rights in underlying facts (even if they turn out to have been fabricated). This explains, in part,
stories in which one news source credits another but goes on to restate the
facts. Giving credit may be not be legally required, but it can be useful if
the original contains errors or omissions (not to mention fabrications.) A short story using only the basic plot from an earlier story does not infringe.
Independent creation is permitted. A short story, identical to an
earlier one, for example, would not infringe if it were independently created.
In such circumstance, infringement is certain if access can be proven -- a
given if the author is the same. When access is doubtful, the better known the
original and the more similar the alleged copy, the more likely that
infringement will be found.
Fair use. Partial or limited reproduction of others' work is sometimes
permitted if it fosters public interests such as criticism, education or
scholarship. Uses that, for example, cut into another's income or potential
income, however, are unlikely to be fair.
Bottom line. People often wonder whether some particular use of a
pre-existing work is legally acceptable, but that is the wrong question. The
vastly more important question is whether their use of the work is likely to
generate a suit. Anyone who appreciates the significance of that proposition
will either get permission or be sure that none is needed -- most likely
because the material to be used is in the public domain!
The Need for Counsel
Registration. Authors should encounter little difficulty with registration (at least beyond
sorting out for the first time the legal implications of group
registrations).
Transferring rights. This may be more complicated. Anyone concerned about issues
posed above (or others of that kind) need expert advice to lessen the risk, for
example, of having sold more than intended or of having accepted unexpected
liability.
Lawyers cannot determine whether deals are economically advantageous or
professionally satisfying. Those familiar with copyright law, however, can
explain the short and long-term legal implications so that their clients can
decide for themselves.
Free lance businesses. Free lancers who face difficulty because of publishers' concerns about termination interests may find it useful to be employees of their own businesses. As employees, their work should not be subject to termination. Tax and other implications related to the form of business are apt to be more significant and should be discussed with counsel. [The term differs (95 years from publication, rather than life plus 70 years), but the older an author is, the smaller the likely downside.]
Copyright on the Internet
Copyright Office: Copyright Basics
Modified Mar. 17, 2007
URL: http://www.piercelaw.edu/tfield/copywrite.htm
Franklin Pierce Law Center
Two White Street • Concord, NH 03301 • 603.228.1541
© Franklin Pierce Law Center 2005-07. All rights reserved.
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