Balancing Copyright and Work for Hire for Freelance Authors

By , October 21st, 2012 | Articles, Interview, Journalism, Media | 9 Comments

An author’s written word is a precious joy. They nurture thoughts and mold them into ideas in hope to enlighten their readers with a new insight on the world they sludge through day in and day out.  The notion that for all their painstaking labor, they are no more than a surrogate to the fruit of their labor is one that many do not fathom until it is too late.

“The most important thing with copyright is that an author automatically has the copyright to something they created,” explains Glenn Michael Gordon, Assistant Director of the Undergraduate Writing Program at Columbia University and former editor-in-chief of readersdigest.com.

“The only way you would not have the copyright is if you are a work-for-hire and it has been made explicit that you are not writing something for yourself,” says Gordon. “If an author sells writing that they’ve done with a contract that is all-rights, often that will be called work-for-hire, that means that they will receive payment for that work but then that work is no longer theirs. Therefore, they have no ownership over their work.”

Whether Superman co-creator Joe Shuster was work-for-hire or not is one of the key arguments in the current Superman copyright case between Shuster’s surviving family and DC Comics. The original case for not being completely work-for-hire was argued because Shuster and co-creator Jerry Siegel created the Superman pages of Action Comics #1 and a few pages for his next appearances before DC Comics ever saw it.

The U.S. Copyright Office says a “copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.”

“If the contract says that the publisher is only taking first rights,” elaborates Gordon, “that means that they are only paying for the privilege of the first to publish it but that the author then retains the rights and can publish it elsewhere if a publication or web site is willing to publish something that has already been published.”

Gordon says that media companies have gotten savvy. They are adding clauses to their contracts for new media that hasn’t been thought up yet. They also buy exclusivity on not just your work, but also your writing on that topic. If they have clearly defined competition, the contract might include that you cannot write on the same subject for those specific companies for a certain period of time.

Some media outlets choose to only use freelance authors under work-for-hire as part of a shrewd business plan.

“There are some newsstand magazines that have been known to only buy work-for-hire,” tells Gordon. “The reason some of these publications do that is because they repurpose the stuff into books. They’ll take a bunch of magazine articles and then make a book of abs and if you wrote one of the abs exercise articles, this way they don’t have to pay you. They can repurpose it in a million different ways.”

With all the different types of contracts and the increasing competition to get work in a downsizing media workforce, retaining your copyright might not be that important.

“In this day and age, it depends on what it is. If it is something timely, very news-related, it doesn’t matter. You might as well sell all rights. You are not going to be able to publish it next year. No one is going to care. However, if you are writing humorous essays and you are publishing them in places, you want to do a book collection. Then, you might not.”

“Now, sometimes your book collection will just say, ‘thank you Esquire, GQ, whatever forgiving me the permission to reprint it in this book.’ So, sometimes they will, so it depends. You can always ask. You can always negotiate a contract. The worst that they can say is no. Then, you can decide for yourself what you want to do.”

photo credit: opensourceway via photopin cc

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