Forum Moderators: not2easy
Thank you.
Who Can Claim Copyright?
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:
a work prepared by an employee within the scope of his or her employment; or
a work specially ordered or commissioned for use as:
a contribution to a collective work
a part of a motion picture or other audiovisual work
a translation
a supplementary work
a compilation
an instructional text
a test
answer material for a test
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.
However...See a lawyer.
However, the writer can transfer the copyright to you as part of your agreement. That's the easiest way to deal with this and avoid dispute. Just write it into your agreement with them. There is probably boilerplate text available you can use to agree to a transfer of copyright in the work.
In the situation you described, you won't be considered the writer's employer just because you paid for the article. It wasn't written in the course of employment.
Ideally, when commission any writer you should have some documentation in place that clarifies exactly what is being agreed. This doesn't have to be a lengthy legal document as a brief email that clarifies key points will usually ensure that there's little chance for confusion or misunderstanding at a later stage. Do ensure that the writer understands and agrees to your written terms.
In general, there are no fixed rules or assumptions in the agreements made between a writer and commissioning editor - you should clarify these terms every time you take on a new writer and ensure that they aware that this agreement applies to all future works. They can then decide whether they wish to work with you now and in the future.
Some freelance writers can be reluctant to relinquish copyright, however, a quick renegotiation of rates - in the author's favour - usually sets matters straight. In other scenarios, particularly if I feel I can easily find another writer to take on the commission, I will tell them to bugger off.
If, however, the writer is an expert in their field, or has a high profile, then I'll usually let them keep their copyright. However, I will make it clear to them that, within reason, I may wish to use their article more than once and that I reserve the right to edit it and present it as I see fit. They, of course, can use the article as they see fit - get it published elsewhere, rework it, etc.
When any writer starts talking about first serial rights, and rights to publish in certain territories, I'll tell them that I'm not interested at all - I want exclusively unique content, not stuff that they are going to hawk around elsewhere.
Writers, in my experience, rarely disagree with a firm editor... ;-)
Syzygy
In thinking about this further, I'm not so much concerned about having the copyright transferred to me. But what if the author asks me to remove the article down the road. Am I obliged to remove it, since I paid for it?
Not that I expect this to happen, but I like to look at all sides of an issue.
I honestly don't care whether they own the copyright (at least I don't think I should care); I just want to have whatever protection I may need because I paid for the article.
Should I care if they have it published at another site, other than their own if they have one? It is highly unlikely this would happen.
But what if the author asks me to remove the article down the road. Am I obliged to remove it, since I paid for it?
There is undoubtedly a legal term describing what you want. I've seen it in website TOS, something like "irrevocable publication rights", only a lot longer.
Seems to me like buying their copyright outright is overkill for what you want. It would make sense if you want the right to go and resell the article to someone else, but you probably don't.
Try to itemize specifically what rights you want to have and what protections you want, in plain but unambiguous English. Then, I'd bet you can probably find somewhere a legalese translation that accomplishes exactly that. It has to be a common situation for which there is now a technical term. Try a web search on the term "irrevocable" along with other terms that you'd find on website and forum Terms of Use pages.
See #29 in the WW TOS from the bottom of this page. Unfortunately, they don't use the legalese you need!
Do you know what that type of agreement is called?
A 'work for hire' agreement. Or assignment of copyright (or similar).
