Forum Moderators: not2easy
The article may be written at the request of the site owner or, more often than not, the author simply volunteers. There are no written agreements involved; no discussion of rights, etc.
Another question:
If the website owner is asked by a third party to reprint an article that was written and submitted on a voluntary basis, does the site owner need to ask the author before granting such permission?
We're not talking about a large corporate website or well-known authors. Everything is very informal.
In general, if a person writes an article that is published on a website and does not charge for it, who holds the copyright?....There are no written agreements involved....Everything is very informal.
I think technically the author owns the copyright, but the article could be viewed as a commissioned work owned by the "publisher" (in this case, the web site's owner).
Perhaps it would be good to reduce the "informality" and put policies into writing, just so things are clear.
Eliz.
I don't know what is considered legal but seems fair to me.
Perhaps it would be good to reduce the "informality" and put policies into writing, just so things are clear.
I have a page that explains what I expect in articles in terms of type of subject, length, my right to edit, etc. Each person who writes for me is directed to read it.
Would putting something about copyright there be sufficient? Or do I have to get something signed and in writing?
I always consider articles written by others as their property and put the copyright sign with their name. I also put
I do. With a link to their website if they have one.
I also put (Do not reproduce any material from this article without permission from the author.)
I don't put this but it seems like a good idea. However, if it wasn't for my site, many of these articles would not exist, for lack of a better word. If they do, say at the authors own site, few have the wide exposure that is affored by my site. For example, one author recently sold a work of art but the purchaser found out about it because of the author's exposure through my site.
I guess what I'm trying to say is that while I certainly do want the author to get every recognition he or she well deserves, I would also want the source of the article to be listed as my site.
Am I making any sense here?
Copyright ( and or certain reproduction rights ) is/are transferred via signed paper contracts ..
This amongst other things prevents someone sending you the work of a third party and then "giving" you the copyright to that to which they do not actually possess the full copyright themselves ..
If you like, you can compare yourself to a commissioning editor, and your page explaining your requirement is your "writers guidelines". You may retain the right to edit the article as you see fit, but that doesn't alter the copyright situation. Additionally, you may not grant anyone else permission to republish an author's work without the author's written permission. Verbal permission is insufficient.
Authors are free to publish their work elsewhere without any mention of you whatsoever, and while I appreciate why you want to be seen as the source of the article, there's nothing you can do about this unless you do own copyright, apart from asking nicely :)
The only exception, where you would own copyright without written agreement, is "work for hire", which doesn't apply in this case.
I also write for other sites. Sometimes I do not charge but other times I get paid. Again, this is no big-time stuff, and there never has been anything done in writing. I always get a byline and a link to my site.
Do I still maintain the copyright for articles for which I get paid?
On a somewhat related matter. I'm thinking about paying someone to help me write content for my site. Blubs on a page are typically between 3-6 paragrahs. These would be regular content, not feature articles; no bylines. Where/how can I find out what is a reasonable amount to pay per hour?
you may not grant anyone else permission to republish an author's work without the author's written permission.
Does this included permission granted via email?
I also write for other sites. Sometimes I do not charge but other times I get paid. Again, this is no big-time stuff, and there never has been anything done in writing. I always get a byline and a link to my site.Do I still maintain the copyright for articles for which I get paid?
Absolutely. Unless you've signed away your copyright to someone else, you own it.
On a somewhat related matter. I'm thinking about paying someone to help me write content for my site. Blubs on a page are typically between 3-6 paragrahs. These would be regular content, not feature articles; no bylines. Where/how can I find out what is a reasonable amount to pay per hour?
This is where the work for hire bit comes in. If you are employing (paying) someone to write for you, then as a part of their contract of employment, it should state that work done while under contract to you becomes your copyright. They then have no rights to it whatsoever, and you can do what you like with it. Can't tell you what to pay, as it depends very much on the complexity of the work/technical knowledge required and the location of the writer. There are some guys on here paying peanuts. Have a look back a few pages, you'll find the threads. Get a lawyer to run up a standard doc where you fill in the blanks and which the writer signs, shouldn't cost too much - it's fairly straightforward, and you can use it over again.
you may not grant anyone else permission to republish an author's work without the author's written permission.Does this included permission granted via email?
Emails would, AFAIK, constitute written permission :)
About what to pay: try to get an idea how long it takes to write a certain amount of words in your niche. As you write too, you will know what you spend on average to get for example 1000 words.. Then consider what is an fair salary in your country and theme, and you will know, what might be a fair pay per word.
Emails would, AFAIK, constitute written permission :)
too easy to fake the email variety ..
All posts retain the original author's copyright, but by submitting such post, the author grants a non-revocable, exclusive publishing right in perpetuity to example.com, and it's owners.
You see ..you have no way to verify that "the true author" and "the poster" are one and the same person ..nothing would be to stop me copying something elsewhere and posting it as my work ..on your fora ..wouldn't give you the rights to do anything with the actual "true authors" work ..even if you thought in good faith that he and the poster were one and the same ..
fraud happens ..
But, I fail to see how having something published, infringing or not, makes my click-wrap agreement "legally invalid". I only need to take a reasonable due diligence to verify the copyright ownership.
They are also two different legal issues.
Once I become aware, or am notified that the material was copyrighted, and they do not agree to the my terms, I simply remove it.
I only need to take a reasonable due diligence to verify the copyright ownership.
You are not trying to do anything that you see as wrong ..and I dont think you are actually trying to do anything dishonest ..but you are making a very common and erroneous assumption about what means are legally acceptable as transfer and proof of ownership of copyright ..
Because one sees the sort of "shrink wrap" you mention everywhere ..does not mean that one day you or another site owner will find that the presence of such on their sites will be accepted as a defense in a court of law ..
Once I become aware, or am notified that the material was copyrighted, and they do not agree to the my terms, I simply remove it
And that will not stop any pursuits against you nor hold water in the eyes of the courts ..you cannot prove that you acted in "good faith" without the signed document ..
Emails would, AFAIK, constitute written permission! :)Nope .. signed paper contract only
Sorry Leosghost, but you are incorrect. Electronic signatures became legally binding in the US around 2000, and the EU followed suit in 2001. In fact most countries now recognise the legality of electronically signed documents.
Were this not the case, no business, and particularly no law firm, would enter into correspondence by email :) but they nearly all do!
For interest: Part of this legislation also includes the electronic "tick box" seen on many websites where one checks the box to indicate acceptance of terms and conditions. Again, this is legally binding - you check the box, then you accept you've read, agree with and will comply with the terms set out therein.
So going back to the OP's question, yes an agreement by email would constitute written permission, and is legally binding.
In the rest of the world it depends on the document ..
Copyright transfer and attributions ( as BTW all publishing contracts .. ) were not included in those agreements AFAIK in either the US nor the UK ..
I agree it would indeed make things easier , albiet with a greater degree of risk in some circumstances ..but for now as in when you buy a house , car etc ..electronic signatures are not yet accepted for all contracts ..
in spite of what we heard ..
Electronic sigs may be accepted ..but they have to be backed up by paper ..finance and movement of shares etc are obviously special cases as banks do accept electronic docs and have always accepted fax and telex since the early days of those technologies ..
So I can ask my bank send an electronic or faxed documentary credit ..but my bank requires that I send them a signed paper request to do so ..
BTW if emails were legally binding ..where would that place spoofing headers ..I could claim to be you and give him permission to use your website copy in it's entirerity on his fora ..?
Or email him to say that I 'll sell him your house ( pretending to be you and spoofing your email header ) for $100.oo or a link from a PR 8 page ..if he started moving his furniture into your place on that basis the courts would'nt take his received email very seriously ;)
The more I follow this dialog the more I understand the importance of having a "written" agreement. I never thought about this aspect: that a submission might be plagiarized. So part of an agreement should be that it is not?
Team, a great many people will do just as you've done to date, which is to rely on good faith and a "gentleman's agreement".
However, it is important to have a written agreement, as no matter how gentlemanly one's agreement, there's always the potential for a falling out. A bit like pre-nups (in the US at least!). If you have one, and the *&^% hits the marital fan, you know where you stand ;)
As far as submissions to your own site are concerned, I think it would be a good idea to set up an agreement page, wherein the author checks the box agreeing not only to comply with your T&Cs, but also agrees that by submitting an article, he/she is confirming they own the rights to do so. This agreement is legally binding and gives you some security should anything go wrong.
You would also need to ensure each author supplies you with his/her full details (which need to be covered by the privacy laws of your country - another story!), not just an email address, so they can be contacted (or served with papers!) should the need arise.
Although nothing is foolproof, you would at least have carried out due diligence, and would, as Leosghost pointed out, have a signed document wherein the "author" confirms he/she owns copyright, to present to the judge.
Sorry if all this is making something which has always appeared simple suddenly very complicated :) Unfortunately though, it is the only way to make sure you are covered in the event something goes wrong.
ps. in response to another point you raised re paying others to write for you - I wouldn't pay per word or per hour. I'd agree a fixed fee with the writer - as an example $20 for 500 words. Per word is still quite common for higher-end print publications, but most small pubs and onlines pay fixed fees for an agreed amount of words.
The type of contractual agreement discussed in relation to the OP's question is commonly carried out online, and is successfully used by many websites to which articles are submitted.
There are, as you have indicated, exceptions to the acceptability of an electronic signature, finance being one area, and property being another. Due to money-laundering laws, different procedures apply.
If you want to sell my house to the OP, you will need to present formal photo ID, in person, to a solicitor, confirming you are me. You and/or he are more than welcome to my neighbours :( And you'd better get me a darn site more than £100, a girl's gotta eat you know ;)
You can also follow up with reading the "Electronic Signatures In Global And National Commerce Act" or e-Sign Act enacted in 2000 in the U.S.
In the EU the "EU Electronic Signature Directive" is in force.
I believe you are incorrect in France not having an e-Sig Law. Please review "Electronic Signature Bill", and the article 1316 of the French Civil code to the EU Directive issued March of 2001. The ammendement defines the acceptable e-sig as:
uniquely linked to the signatory;
created using means that the signatory can maintain under their sole control; and
linked to the data to which it relates, in such a manner that any subsequent change of the data is detectable.
e-mail, signed or not, are binding contracts in the eyes of the FTC & SEC, and most lower courts in the US, and UK. There has been civil cases where an equity trade action was ordered in e-mail, and was accepted at face value that the e-mail was valid (after minor research that it was delivered, and was not spoofed).
Simple "I Agree" button or a digitized hand-signature is not sufficient.
Although I am not an legal expert, from what I gather - typing in your name (or an other text) into a field, then clicking an "I Agree" button - then generating a record of the transaction most likely will not be contested.
You want to be even stronger?
Take the TOS/TOU, provide a field for the user to type in their name in a field, hash (say MD5) the TOS/TOU with the text typed, date/time, IP address of source and server, e-mail a copy of the "signed" document to the user and request an affirmative click of a unique link which will expire after a period of time.
(Hey software developers! The above is a freebee for you to write, for web sites! :))
Again, I am not a legal expert. I am just fascinated with encryption, compression and authentication.
Leosghost, it's a well known urban myth that only the UK bends over backwards, tying itself in knots with red tape to comply with each and every EU law. The rest of the EU pays lip-service to the laws, then completely ignore them ;)
The type of contractual agreement discussed in relation to the OP's question is commonly carried out online, and is successfully used by many websites to which articles are submitted.
Like you said here
As far as submissions to your own site are concerned, I think it would be a good idea to set up an agreement page, wherein the author checks the box agreeing not only to comply with your T&Cs, but also agrees that by submitting an article, he/she is confirming they own the rights to do so. This agreement is legally binding and gives you some security should anything go wrong.is probably the best one can do ..You would also need to ensure each author supplies you with his/her full details (which need to be covered by the privacy laws of your country - another story!), not just an email address, so they can be contacted (or served with papers!) should the need arise.
There is also the whole can of worms involving when one clicks in a box on a website ..where is the agreement being performed ..under who's juristiction ..your machines "home country"? ( I vote for this interpretation ) ..or the websites hosting machine which may be in another country ..
Eulas again are negated by some countries laws and not by others ..
Online publishing or provision of goods and services can be far more complex than it /they seem at first glance ..
Btw ..you mean I am welcome to your neighbours ..or their house? ;)
And that only the original "french language" text is considered by french judges and ( at the last resort ) the constitutional commission to be the valid one ..And it is not for nothing that french has some of the most convoluted and easily multiple interpretation law in the world ..
( and more of it than most of the rest of the world :((
Add to which huge numbers of laws in which the code napoleonic contradicts later EU law and despite the french government having ratified the EU law totally the courts still go with the code napoleonic version ;)
life on Mars ..
BTW we have a famous case here where a site owner was considered responsible for the images uploaded to his fora ( of the then wife of a french singer ) and was fined around $50,000.oo US equivalent ..even with the sort of TOS thing you are suggesting in which he had place ..he appealed ..and lost ..( happened I think in 2002 ) ..
2nd BTW ..remember also here we are talking about copyright law ..not trade law ..
There is also the whole can of worms involving when one clicks in a box on a website ..where is the agreement being performed ..under who's juristiction ..your machines "home country"? ( I vote for this interpretation ) ..or the websites hosting machine which may be in another country ..
The general consensus, again AFAIK, is the law of the land in which the site with whom one is making the agreement is based would apply, regardless of whether the site itself is hosted in a third party country. There again, the French would probably take a different viewpoint ;)
---
You don't want my house anymore? In that case, you can have next door for 10p, and you can do what you like with the neighbours :)
These are not in the same category as anything else that you buy and sell. The courts are much stricter in these cases, and I would like to see the law that says that electronic signatures actually apply to copyright and real property.
In the US at least click through TOS agreements can be used to grant you certain rights to uploaded material, if the person making the click does in fact possess the copyright to those materials. For example, if they upload a photograph to your site, the courts view this as implicit permission for you to serve up that picture to your users from the location where they uploaded it. They are also likely to grant you the right to use it in other areas of your site if you state that in your TOS.
What you almost certainly are not going to get away with is trying to claim any sort of *exclusive* right without having something in writing, and you absolutely cannot claim copyright without that writing.
What you almost certainly are not going to get away with is trying to claim any sort of *exclusive* right without having something in writing, and you absolutely cannot claim copyright without that writing.
Maybe the first time we ever agreed on something in one of these threads ..one or both of us must be mellowing ;)
In the united states, there are certain documents that require a clear writing to transfer ownership, the two most obvious ones are title to a real property and copyright.
Possibly, but that is not because it is a legal requirement, but the lack of technical ability.
The 2001 Act allows any legal document to use electronic signature, including transfer of ownership of real property and Copyright. I am sure the Copyright office is not ready to take electronic Copyright transfer.
BUT in May of 2005, the US Copyright office proposed a PIN method "as a proxy for the original signature requirement for a hand-delivered or mailed claim." 69 FR 61326-27. This was later modified under pressure from business to "an alternative to the PIN proposal, use of an affirmation or certification at the end of the online form that would serve as a ratification of the claim. Id., at 7-9 (discussing the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001, et seq.). The Claimant Groups pointed out that their alternative proposal would be similar to the verifications used for trademark registrations at the U.S. Patent and Trademark Office,"
Therefore I would believe that a electronic contract, such as a TOS, signed electronically would be sufficient, and binding, in a basic contract.
Also in Ohio and in Delaware I can transfer ownership of both real-estate, and vehicle using e-signatures.
Freddie Mac and the HUD has accepted mortgage process since 2001 using e-signatures. The Internal Revenue Service accept e-sigs.
What you almost certainly are not going to get away with is trying to claim any sort of *exclusive* right without having something in writing, and you absolutely cannot claim copyright without that writing.
Please review my post. My agreement does not transfer Copyright, nor ever claims to have it. If it suggests it to you, then my apologies.
The Electronic Signatures in Global and National Commerce Act (ESIGN), applies to "any transaction in or affecting interstate or foreign commerce."
The term "transaction" is defined as "an action or set of actions relating to the conduct of business, consumer, or commercial affairs between two or more persons."
There is nothing there about what the contract may or may not contain.
Exclusive publishing rights contracts are written all the time, aspecially for copyrightable/copyrighted materials. Adsense for example has specific exclusive rights to specific pages on our web sites (webmasters cannot publish competing content driven ads). No ink/paper signature is required to execute the contract.
The following link is to the Library of Congress, to the Act.
[thomas.loc.gov...]
CAVEAT EMPTOR: When I say signed - I mean that it complies with the ESIGN requirements, not just an "I Agree" button.
Again, I am not a lawyer.
My agreement does not transfer Copyright, nor ever claims to have it.
Note ..my bold on your text ..
Then what are you "granting yourself" or at least attempting to grant yourself ..with the words "publishing rights"?..if it's isn't the right to copy or reproduce the item ..you would have to redefine the meaning of the words "publishing rights" to make them mean anything other that the right to reproduce by some means or other be they print or electronic ..your wording leaves them with their copyright ..but you do attempt to appropriate some of it for yourself
exclusive publishing right in perpetuity to example.com, and it's owners.
I can guarantee you that if someone wether in the US or elsewhere asked you to remove their copyright item which they or someone else had posted to your site ..( because maybe they wanted to sell the exclusive publishing rights to someone other than yourself ) ..that the courts would if need be force you to do so ..
Your original post mentions
which could potentially fetch good money,..so you would appear to be under the illusion that you could sell or rent someones work to a third party ..merely because they had allowed it to be on your site ( the reference to "fetch good money" doesnt infer that you wish to use their work to merely to attract adsense to your site ..which would be an astute and perfectly acceptable business plan ..frequently used by fora ) ..
Who is going to offer you "good money" for what is not yours to sell or rent ..
I have got to say that I began by reading your post as misinformed ..the more you post the more one is forced to think that you may be trying very hard to justify a potential / possible "misappropriation of the intellectual property" ( UK law at least puts it differently ..I have brought and won cases in UK courts regarding intellectual property ) of posters to your site with multiple citations of irrelevant legal texts ..
I can see you heading for some major losses via some major lawsuits if you put try to put into practice what you think you can ..I hope no one attempts to follow your thinking ..and would advise you not to continue with your method .. I don't beleive that I have misunderstood it ..
Or maybe you would like to clarify how you see yourself benefitting from the postings
which could potentially fetch good money,..apart from being on your site ..what else do you think you can do with them to get this "good money" ..?
I stated that I license the postings through an electronic form, from the Copyright holder. When the validity of e-signed contracts, such as the TOS, was disputed, I backed it up with references.
Furthermore I never stated I would not remove illegaly misappropriated material. By its nature, the individual posting the stolen material entered into the contract illegaly, therefore it could never be enforced. I thought that was obvious, so I didn't spell it out.
"merely to attract adsense" is a potentially good way to fetch some money, as many members will attest to this.
Agreeing to a contract (TOS), then e-signing it is not "granting yourself" or "misappropriation" but entering a legally binding agreement. On the other hand, in my opinion, your comments sound borderline libelous. ;)
Copyrighted works are protected regardless of the medium in which they are created or reproduced. But Copyright is different from licensing rights.
A strong TOS goes two ways. In general, it grants rights to the user to access various parts of the system, and in turn grants rights to the publisher of the site to publish the postings.
The site owner does not relinquish the ownership to the site, simply grants rights to access the system. The user does not relinquish the Copyright to the postings, simply grants rights to the site owner to publish. It just happens to be that I ask for exclusive publishing rights.
Back to answering team:
In general, if a person writes an article that is published on a website and does not charge for it, who holds the copyright? The website owner or the author, or both
I don't believe it is feasible to check every posting to make sure they are not stolen by the poster. This is why a mechanism to remove such posting is prudent to have, as is available on WebmasterWorld (http://www.webmasterworld.com/docs/dmca.htm).
(Final example:
J.K. Rowling is an author. She wrote something. She entered into a contractual agreement with Bloomsbury Publishing Plc granting them exclusive publishing and republishing rights.
Who holds the Copyright to the book?
Unless the contract transfered the book publishing rights, in my opinion, J.K. Rowling continues to hold the rights, yet Bloomsbury hold exclusive book publishing rights. If she e-signed the agreement/contract would it make it invalid and non-enforcable?)
Again, I am not a legal expert; the above is my layman opinion.
