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