If I came to you and said, “I like the cut of your jib, kid, what say I give you $1000 and you let me take something, anything, out of your house? Whadayasay? It’s a good deal; you might not get such a good offer ever again. ”
Would you take me up on it? $1000 for any single personal possession of yours that I want?
If you said, “Yes,” I think it’s important that you stop whatever you’re doing and talk to an adult about stranger danger.
As silly as this hypothetical might sound, it’s not too different from the situation that artists, writers and freelancers find themselves in when asked to sign a contract. They usually know exactly what they’re getting out of the deal–money, a published book, work–but they’re not exactly clear on what they’re giving up.
I would like to help you avoid unknowingly giving up something that’s terribly important to you. The best way that I can do that without actually being your lawyer and giving you legal advice is to help you identify situations that involve you giving away your rights.
Because copyrights (as opposed to, say, trademarks) are much more common in writing and art contracts, I’m going to teach you about how copyrights can be given away.
A copyright protects all original work that you create and capture in “a tangible medium of expression” (a written copy, a data file, prison tattoo, etc…), and it is magic.
A copyright is created and protects your work as soon as your work is created. Instant legal protection! If you register your copyright with the Copyright Office you can get more protections, but registration isn’t necessary to copyright your work.
So if you are reading this post after putting the finishing touches on the first draft of your fantasy-thriller novel “101 Ways to Carve a Pumpkin,” you are reading this post right after you copyrighted “101 Ways to Carve a Pumpkin.”
Now that you have this copyright, you can either keep it or give it away. If you want to give it away there are roughly 956,872 different ways you can do that but they all basically fit into one of two categories: assignments or licenses.
This will be easier to understand if you imagine your copyright is a physical object. For purposes of this post, let’s pretend it’s a ball.
An assignment means you are selling the copyright to someone else.
You are selling them the ball and they can do whatever they want with it because it’s now their ball. They can use it to play baseball or four square or kickball or soccer. Once it’s theirs you no longer have any say in what they do with it.
You don’t have to assign all the rights to the ball when you do an assignment, though. You could just assign it to me for playing basketball, for instance. This would leave you the option of assigning it to someone else for tennis or golf.
The other way of giving away your copyright is through a license.
A license means you are lending your copyright to someone; you can control how they use it and how long they use it. For instance, if you licensed your ball to me, you could tell me that I can only play soccer with the ball and only for the next two years.
If I try to use the ball to play baseball instead, or I use it after the two years are up, I’m violating our agreement. You can come and take your ball back. You might even be able to sue me for misusing your ball.
A license can be exclusive or non-exclusive. An exclusive license means that only that person has the right to use your copyright in that particular manner. Even you won’t be able to use the copyright in that way while the exclusivity applies. A non-exclusive license means that you can license the right to me and anyone else you like.
Neither assignments or licenses are inherently bad; they’re just different. You might have a ball you don’t really care about, or a ball that’s only good for a game you suck at. If someone wants to give you $1000 for it, that could be a great deal.
At the same time, if you have a ball you love, you’ll probably want to just lend it to me instead and tell me exactly what I can and can’t do with it.
Now, let’s say you do want to lend me your ball. You can lend it to me with broad restrictions (I can only play with it outside; I can only play with it for the next 20 years) or very specific restrictions (I can only play tennis with it on alternate Tuesdays, provided it doesn’t rain, and I have to give it back in six months, unless I’ve won Wimbledon, in which case I get it for another six months).
The more specific the restriction, the more control you have over how the person uses your copyright.
Some of the most obvious ways you can limit a license or assignment are:
- a specific purpose; for instance, publishing or developing it as a book, television script or comic.
- a particular period of time, which can be anywhere from the entire life of the copyright to a few months.
- a particular language; getting the right to publish your book in English doesn’t mean they also have the right to publish it in French.
- a particular region; like language, the right to publish in North America is different from the right to publish in Japan.
But you can impose just about any other limitation you can think of.
A word of caution: you want to make sure you’re giving the person enough so that they can actually use the license to do something. It wouldn’t be particularly helpful if I got a license to use your ball but I could only use it on Mars. Restricting a license too much can be just as bad as not restricting it enough.
But what about Work For Hire?
Remember how I said that copyrights are magic? They happen instantaneously when an original work is created?
In a situation where the freelancer, writer or artist is doing the work as “a work for hire” the copyright still happens instantaneously, but instead of belonging to the person who created the thing, it belongs to the person who hired them to create the thing.
With a work for hire arrangement, you never own the copyright so you can’t give it away.
Work for hire only applies in two specific situations. One is when you’re an employee and your employer owns the rights to what you create in your role as their employee. The other is when there is a written agreement that says the work is a work made for hire and the work fits into one of nine specific categories.
To sum up: With an assignment, you’re giving away your copyright, so make sure you get something wonderful for it in return. With a license, you’re lending the copyright out, so it’s important to make sure you lend only what the other person really needs from you.
If you’re looking at a contract to assign or license your work and you don’t feel comfortable with it, it is always worth asking for changes. Sometimes an overly cautious lawyer (or a lawyer who just likes to use the same contract every time so she can leave early for lunch) writes the contract to get more than what her client really needs. But you’ll only find that out if you ask. Play ball!
Thanks to the great folks of the Surrey International Writers’ Conference who hosted me up in Vancouver, BC last weekend. I had a fantastic time and highly recommend the conference! It was very well run and engaging with great programing and a diverse group of presenters. Plus, I got to meet all sorts of cool people like Susin Nielsen, JJ Lee, Eileen Cook, Mark Zuehlke, Frances Backhouse (whose great presentation helped me crack the outline for a book I’ve been wanting to write; thank you, Frances!) and Jodi McIssac. Go read all of their books; all of them!
Categories: Making Sense of Contracts