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Electronic Rights

by Kohel M. Haver, Literary and Arts Attorney, Kohel Haver & Associates

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Question: I am curious about these companies making e-books out of very old stories. I hear that the authors sold "all rights" but how can that include electronic rights if no such rights existed at the time of the sale? A couple of authors here have noticed their stories that were published in magazines years ago are being sold as e-stories on Amazon: is that right? In addition, I am curious about artwork I did in the 1980s being used on the company's website with no credit or additional payment.

As an author, and under the current law, unless you are an employee or have transferred or assigned the rights by contract (writing) to another party, you retain the copyright in anything you write; the same applies to the illustrator and their illustrations. The copyright includes the various and related forms in which a work can appear, including as printed in a book, paperback, poster and pamphlet but also related formats such as a performance, song lyric, cartoon animation, plush toys, cereal box prizes, web site, movie set design and electronic formats, etc. The various forms are derivatives of the initial work. In 2001, the U.S. Supreme Court ruled on the issue of freelance writers' rights to separate compensation for electronic publication of their work.

The court, in New York Times Co., Inc., et al. v. Tasini, decided in favor of the authors. The court found that when published work is made available on the Internet without further permission from the authors "both the print publishers and the electronic publishers ... have infringed the copyrights of the freelance authors." The court concluded that the electronic publication infringed the Authors' copyrights by reproducing and distributing the articles in a manner not authorized by the Authors in their contracts with the publishers and not privileged by the Copyright law under 201(c) which permits publication in a different form. The publishers infringed the Authors' copyrights by authorizing the electronic publication of the articles in online databases.

The key argument in the infringement was that at no time did the print publishers or the electronic database publishers obtain or even seek the consent of the authors, nor did either compensate the authors for the reproductions.

The court considered whether the initial publishers of the freelance articles could be allowed to republish the work in a searchable electronic format. Publishers maintained that the electronic publishing was for the vast public good and enlisted libraries to argue that the work would be lost if the publishers were not permitted to take the work and include it in online archive.

Publishers further argued that tracking all those rights, such as the electronic distribution rights, would be prohibitively complex and expensive. The industry has recognized this problem, yet it has only gotten worse as the Internet has multiplied publishers' options for content rights licensing, thus creating more opportunities to produce derivative works--a right usually reserved under the law to the author of the work. There are a few content rights licensing organizations such as RightsLine, as well as rights-licensing service providers like CCC and RightsCenter, but these agencies do not have a complete listing of every published work ever printed.

The court noted that if "there is demand for a freelance article standing alone or in a new collection, the Copyright Act allows the freelancer to benefit from that demand; after authorizing the initial publication, the freelancer may also sell or license the article to others. It would not 'preserve the author's copyright in a contribution' as contemplated by Congress, if a newspaper or magazine publisher were permitted to reproduce or distribute copies of the author's contribution in isolation or within new collective works." The court referred to the belief that "freelance authors have experienced significant economic loss" due to a "digital revolution that has given publishers [new] opportunities to exploit authors' works."

The same is true for the illustrations unless, again, you have transferred the rights with a written agreement to the author or publisher. Illustrators do have to watch out for the "work for hire" situation, because if the illustrator was hired to illustrate an existing work, the job could fall into the work for hire exception, which says that the rights in a specially commissioned supplemental transfer automatically. Illustrators are well advised to be careful to make sure they give up their rights in their illustrations only when they intend to do so.

What to do? If you notice your work published or reprinted, and you have retained your rights in the work (even if you have not registered your copyright) and if you have not given permission for publication, you have every right to ask that the unauthorized distribution stop, demand payment for the publication. Typically I suggest authors have an extra charge for the after publication license fee, perhaps 50% surcharge for having reprinted the work without asking. In addition, you may be entitled to the remedy of a legal action for copyright infringement. This is one more reason why it can be a good plan to have registered your copyright before publication, but even if you have not registered you still have the right to demand payment, just not as much. In my experience, if your fee is reasonable, most companies will send you a check for this oversight.

Editor's addendum: This article gives you some insight into how electronic rights are affected by contracts in place prior to the growth of electronic publishing. Rulings such as Tasini, and the growth of e-publishing generally, have caused publishers to include the grant of electronic rights in their standard contracts. Agents can get some limits placed on this, but not negotiate it away, except in the case of important clients.

Disclaimer and editor's note: This article is written only for use as general legal information. Your personal situation will be different, so if you require real legal advice please consult local knowledge legal counsel.

I am posting this and other articles by Mr. Haver in the hope that they will be of interest to writers generally. They were originally published in the newsletter of SCBWI Oregon.

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