COPYRIGHT LAW: COPYRIGHT LAW: Legal considerations in professional writing By: Leslie J. Lott, Esq. LOTT & FRIEDLAND, P.A. 355 Alhambra Circle Suite 1100 Coral Gables, Florida (305) (305) (fax)

LOTT & FRIEDLAND, P.A. Basic Copyright Concepts For Writers: What is a copyright? A copyright is a federally-granted right of ownership which protects an author's particular expression of an idea. The copyright does not protect the idea itself: rather, it protects the author’s particular form of expression when it is fixed in a tangible medium.

LOTT & FRIEDLAND, P.A. What kinds of works are protected? Literary works Including computer programs and databases Musical works Dramatic works Choreographic works Pictorial, graphic and sculptural works Motion pictures and other audiovisual works Sound recordings Architectural works

LOTT & FRIEDLAND, P.A. How long does it last? 1.Individual Works Length of the author’s life plus 70 years 2. Joint Works Length of the last surviving joint author’s life plus 70 years 3. Works Made for Hire The earlier of either 95 years from the date of publication or 120 years from the date of creation  Note: When the term of protection ends, the work falls into the public domain, meaning that anyone can use it for any purpose

LOTT & FRIEDLAND, P.A. What is the “bundle of rights?”  The author has the exclusive right to:  Reproduce the work  Make derivative works based on the original  Distribute copies of the work (e.g. by sale, license, rental)  Perform the work publicly  Display the work publicly

LOTT & FRIEDLAND, P.A. When does protection begin?  Automatically as soon as the work is fixed (i.e. captured) in a tangible medium Registration is not required in order to have copyright protection Registration is required in order to initiate a copyright infringement suit

LOTT & FRIEDLAND, P.A. What can be protected?  Any original work of authorship…  The degree of originality required is minimal  Originality is not checked by the Copyright Office  …that is fixed in a tangible medium  The author must submit a copy of the work – to show that it is fixed – with the application for registration

LOTT & FRIEDLAND, P.A. How do I register?  Fill out the appropriate form  Available at  Send the completed form, a copy of the work, and a filing fee of $30 for each application to: Library of Congress Copyright Office 101 Independence Avenue, S.E. Washington, DC

LOTT & FRIEDLAND, P.A. Do I need the © in order to have protection?  No: Notice is not required  However, you may provide notice of your copyright by affixing three elements to the work: 1) Either the symbol “©”, the word “copyright” or the abbreviation “copr.” 2) The year of first publication 3) Your name Copyright © Year by Author’s Name. All Rights Reserved.

LOTT & FRIEDLAND, P.A. Who owns the copyright?  General rule: The original author (or authors) owns the copyright in the work  Exception : Work made for hire Employer is the author and the owner  Two kinds: 1)Work was created by employee within scope of his employment 2)Specially ordered or commissioned Agreement must be in writing Work must fit into categories such as: contribution to a collective work, translation, compilation, instructional text, etc. Includes work by a freelance author commissioned by a publisher

LOTT & FRIEDLAND, P.A. Employee vs. Independent Contractor  Community for Creative Non-Violence (CCNV) v. Reid, 490 U.S. 730 (1989) Facts:  The non-profit organization orally hired an artist to create and produce a sculpture of homeless individuals titled “Third World America” for a display at a Christmas pageant in Washington.  Copyright ownership was never discussed and both parties filed competing copyright applications when the work was completed.

LOTT & FRIEDLAND, P.A. Community for Creative Non-Violence (CCNV) v. Reid Issue:  The United States Court of Appeals for the District of Columbia Circuit held that the sculpture was not a work made for hire under the §101 provisions of the Copyright Act of 1976.

LOTT & FRIEDLAND, P.A. Community for Creative Non-Violence (CCNV) v. Reid Holding:  The Supreme Court affirmed, holding that the sculpture was not a “work made for hire” under the Copyright Act. The artist was not an employee because he was hired for a limited time to complete only one specific task. He exercised control as a skilled sculptor, who worked in his own studio with his own materials.  Based on this, the Court held that he was an independent contractor. The artist was not an employee in the traditional sense of agency law, so the sculpture was not a work made for hire.

LOTT & FRIEDLAND, P.A. Community for Creative Non-Violence (CCNV) v. Reid  Application: §101 states that a work is a work for hire when the work was:  (1) prepared by an employee within the scope of employment; or  (2) specifically ordered or commissioned for use as a contribution to a collective work, as a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

LOTT & FRIEDLAND, P.A. Factors to be considered in determining whether a hired party is an employee or independent contractor:  Hiring party’s right to control the manner and means by which the product is accomplished  Skill required  Source of the instrumentalities and tools  Location of the work  Duration of the relationship between the parties  Whether the hiring party has the right to assign additional projects to the hired party  Extent of the hired party’s discretion over when and how long to work  Method of payment  Hired party’s role in hiring and paying assistants  Whether the work is part of the regular business of the hiring party  Whether the hiring party is in business  The provision of employee benefit  Tax treatment of the hired party

LOTT & FRIEDLAND, P.A. What can I do if someone is stealing my work?  You may bring a copyright infringement action if you can show that:  You have a valid federally registered copyright, and  The defendant has copied your work Copying is usually proven through circumstantial evidence that:  The defendant had access to the work, and  There are substantial similarities between the two works

LOTT & FRIEDLAND, P.A. Contributions to Collective Works, 17 U.S.C. §201(c) “Contributions to collective works. – Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing an distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.”

LOTT & FRIEDLAND, P.A. Author’s Rights: Greenberg v. National Geographic Society, 244 F. 3d 1267 (11th Cir. 2001)  Facts: Defendant Society hired Plaintiff freelance photographer on an independent-contractor basis to complete specific assignments. The terms of the contract specifically stated that all rights the Society acquired in the photographs would return to Plaintiff 60 days after the pictures were published in the magazine. National Geographic created a digital CD-ROM library which included the photographs and which ran one of the photographs every time the library was accessed. The Plaintiff brought an action for copyright infringement for re-use.

LOTT & FRIEDLAND, P.A. Greenberg v. National Geographic Society  Issue: District court found no infringement because the allegedly infringing work was a revision of a prior collective work that fell within the Defendant’s privilege under 17 U.S.C.S §201(c) to reproduce and distribute the photographs. National Geographic claimed that it owned the copyright in the original issue of the magazine in which the photographs appeared. Plaintiff appealed.

LOTT & FRIEDLAND, P.A. Greenberg v. National Geographic Society  Appeals Court Holding: Defendant conceded that it used the photographer’s work in a way that it was inconsistent with his exclusive rights as an author under §106 of the Copyright Act. Thus, the Eleventh Circuit held that the CD-ROM was not a mere revision of the magazines, but a new collaborative product.

LOTT & FRIEDLAND, P.A. Greenberg v. National Geographic Society  Application: A collective work is copyrightable as an separate work, distinct from its pre-existing copyrightable contributions. “Under the language of 17 U.S.C.S §201(c), a publishing company can reprint a contribution from one issue in a later issue of its magazine, and could reprint an article from one edition of an encyclopedia in a later revision of it, but the publisher can not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work.”

LOTT & FRIEDLAND, P.A. Factors to be considered in determining whether a use of a copyrighted work is a “fair use” are:  The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;  The nature of the copyrighted work;  The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and  The effect of the use upon the potential market for or value of the copyrighted work

LOTT & FRIEDLAND, P.A. Landmark victory for writers: Tasini v. New York Times, Co., 206 F. 3d 161 (2nd Cir. 1999)  Facts: Six freelance authors, who owned the copyright to individual articles previously published, brought an action of infringement against the publishers and owners of the electronic databases, which made the articles available online. The authors alleged that the revisions of their works through inclusion of the electronic databases constituted copyright infringement.

LOTT & FRIEDLAND, P.A. Tasini v. New York Times, Co. Issue: The district court held that the publishers were protected by the privilege afforded the publishers of “collective works” under §201(c) of the Copyright Act. Authors appealed.

LOTT & FRIEDLAND, P.A. Tasini v. New York Times, Co. Holding:  The 2nd Circuit reversed, holding that §201(c) did not permit the publishers to license individually copyrighted works for inclusion in the electronic databases.  Publishers of collective works are not permitted to revise the authors’ individually copyrighted articles without receiving a license or express transfer of rights from the copyright holders.

LOTT & FRIEDLAND, P.A. Tasini v. New York Times, Co. Application:  §201(c) states that each separate contribution to a collective work is separate and distinct from the work as a whole.  An electronic collective work is not the same as a printed collective work.

LOTT & FRIEDLAND, P.A. Tasini v. New York Times, Co. Application  Freelancers should grant first-print publication rights and negotiate payment for additional uses of their printed works in electronic formats.

LOTT & FRIEDLAND, P.A. Types of Freelance Writer Contracts  First North American Serial Rights Publisher licenses a one-time right to publish the article in North America and author retains all other rights.  “All Rights” and Works-Made-for-Hire contracts Author conveys entire bundle of rights he may have in the work to the publisher.  “Non-exclusive right” agreements The writer continues to own the work, but the publisher may continue to re-use the work whenever it wishes for no additional fee.

LOTT & FRIEDLAND, P.A. Freelance Writer’s License Writer transfers rights to certain freelance pieces to the publication Publication retains the Writer to create or transfer rights to freelance work already created Freelance writer is an independent contractor and not an employee of the publication

LOTT & FRIEDLAND, P.A. Freelance Writer’s License Grant of rights in consideration of payment: duplicate, display, distribute or transmit the work Publication claims a copyright in each edition of the magazine, but not in the freelance works.

LOTT & FRIEDLAND, P.A. Terms from a Freelance Writer’s License  GRANT OF RIGHTS In consideration of the payment of the contract price described herein by PUBLICATION to the Writer, the Writer hereby agrees to transfer to PUBLICATION a nonexclusive, assignable, perpetual worldwide permanent license to duplicate, display, distribute or transmit the work in all media, known or hereafter known.

LOTT & FRIEDLAND, P.A. Terms from a Freelance Writer’s License This agreement in no way affects the copyright ownership of the freelance work(s). It is expressly acknowledged that PUBLICATION claims a copyright in each edition of PUBLICATION but does not claim copyright in the freelance work(s). Any registration of the freelance work(s) shall be the sole responsibility of the Writer and will in no event be undertaken by PUBLICATION.

LOTT & FRIEDLAND, P.A. How should I negotiate with my publisher?  The publisher’s contract will almost always seek to obtain all rights to the work (article, book, etc.)  However, this is fully negotiable  Assuming that you give up all rights, it is very important to make sure that you are being compensated for the exploitation of all rights

LOTT & FRIEDLAND, P.A. Suggestions for Negotiating (from the American Society of Journalists and Authors):  Offer First North American Rights contract terms instead  License the work as opposed to assigning the copyright  Negotiate additional payment for additional uses Ask the publication what rights it truly needs.

LOTT & FRIEDLAND, P.A. Suggestions for Negotiating (from the American Society of Journalists and Authors):  Put a time limit on rights Suggest a limited all-rights contract, with rights reverting to the author at the end of an agreed-upon period.  Demand higher payment Remind the publisher that freelance arrangements save them the commitment and expense of ongoing employee salaries, benefits, office space and equipment.

LOTT & FRIEDLAND, P.A. For More Information United States Copyright Office, Library of Congress Lott & Friedland, Miami, Florida American Society of Journalists and Authors National Writers Union

LOTT & FRIEDLAND, P.A. COPYRIGHT LAW: COPYRIGHT LAW: Legal considerations in professional writing By: Leslie J. Lott, Esq. LOTT & FRIEDLAND, P.A. 355 Alhambra Circle Suite 1100 Coral Gables, Florida (305) (305) (fax)

LOTT & FRIEDLAND, P.A.