Published in Scribe&Quill May, 2004
This is Part One of a Three Part Series
I am not an Attorney!
There is an entire segment of the legal profession devoted to it.
The subject is one of the most questioned, misunderstood, and misinterpreted, particularly by the writing community.It
has one of the highest paid and most influential lobby groups in D.C.
Misinformation regardingit's
protections. and the rules of it's use, can translate into hundreds of thousands of dollars in losses to a writer.
By now, you must know the it
is Copyright, specifically, the U.S. Copyright Act and Laws.While it's symbol, © is small, the protection it affords is anything but.
To understand and make proper use of the Rights and Protection one is afforded under the Copyright Act, it is helpful to become familiar with it's origins and intentions.
In 1787 the creation of the U.S. Constitution included in Article I, Section 8, Clause 8, that:
the Congress shall have the power to promote the progress of science and useful arts,
by securing for limited times, to authors and inventors,
the exclusive rights to their prospective writings and discoveries.
Note that the inclusion of this Constitutional language resulted from concerns generated from previous experiences with British authority. In England, possessing a printing press provided the owner with the control of the work they printed. The Licensing Act of 1662 legalized the monopolies that the increasing numbers of owners of printing presses already had.
In 1710, British Parliament enacted theStatute of Anne.This established principles of authors' ownership of Copyright and a fixed term of protection of those works: 14 years, renewable for 14 more if the author was still alive upon the expiration. The Statute of Anne was minimal protection at best, because inevitably the author was forced to surrender copyright.
To be paid for the work, the author had to assign the work to a publisher or bookseller, and thus lost control of the work by virtue of the assignment.
Once the control was lost, the work was then deemed to be part of thepublic domain.
In 1790 the first Congress implemented the provisions of the Constitution, and created:
An Act for the Encouragement of Learning,
by Securing the Copies of
Maps, Charts and Books
to the Authors and Proprietors of Such Copies
in the Public Domain.
It was fashioned after Britain's Statute of Anne, in that it maintained the 14-year term, with renewal possible, given the same circumstances. It differed with the additional language: "science and the useful arts." It also differed in that n the United States, publishers and printers did not gain ownership of a work by merely agreeing to publish it.
In recent years, with the development of the Internet and Digital Rights Issues, Copyright Law has been in the headlines more than ever. From the 2001 NYTimes v. Tasini, to the most recent CTEA (Sonny Bono's Copyright Term Extension Act) Congress has altered term limits, added "Works Made For Hire", and DMCA (intellectual property rights) as well as Database Protection, and the TEACH (Technical Education and Copyright Harmonization) Act to their scope of legislation.
Each change, or proposed change brings with it a new round of objections and challenges. Questioning Congress' scope of power, and the individual facets of each statute, is up for debate, and many go to the Supreme Court for final decisions.
The evolution of Copyright Law provides a greater respect for and understanding of, the rights many take for granted. Writers in days gone by were not necessarily protected to the extent that those presently are.
It is certain that one gains protection simply by creating a work.
But that protection is governed by the kind of work- how it came to be created, and the source, should there be any involved,
of any quotes or passages they did not create.
In 1976, the Copyright Act defined it's protection as:
a work is protected by Copyright from the time it is created in a fixed format.
Under Section 101 of the Copyright law,
Works Made For Hire is defined as:
work prepared by an employee within the scope of his or her employment
;
In other words, if one is hired as a Writer for a Company, whatever work they produce as that employee automatically relinquishes their claim to Copyright. It is understood that the Copyright is owned by their Employer.
OR
a work specially ordered or commissioned for use as a contribution to a collective work,
Collective works are specifically:
supplementary workis defined as:
an introduction, foreword, explanation, comments, afterward, pictorial illustration(s), map(s), chart(s), editorial notes, bibliography, test answers, appendixes, and indexes.
Instructional text
is defined as:
literary, pictorial, or graphic work prepared for publication to be included for use in 'systemic instructional activities.
Work prepared by an Employee
, by law, specifically defines the relationship of employee and employer.
It must be specific.
AND
The Employer must have control over the Employee (i.e.) creates the Employee's schedules, give assignments, determines payment of the Employee, and can hire assistants for the Employee.
The Employer conducts itself as one, by withholding taxes, providing the Employee benefits, etc.
The language became clearer with the decision. The Supreme Court held one must :
first ascertain whether the work was prepared by:
An employee;
An Independent Contractor;
Further, if the writer is an Independent Contractor, two specific determinations are required:
control over a creation did not by itself establish an Employer-Employee relationship.
(Now you know why you've been hearing over and over again NOT to sign any Work Made For Hire Agreement, without either legal consultation, or a crystal clear understanding of exactly what you are signing and why!)
For purposes of Copyright registration, in a Work Made For Hire situation, the "author" and the "owner" of the work and the Copyright, respectively, is, in both cases, the employer or other person for whom the work was prepared.
Additionally, the option to terminate Copyright is NOT available in a Work Made For Hire situation.
Even with all of these stipulations, gray areas remain. Photographs, for example, which are not named in the specific nine areas, are often "assumed" to be included, or so the Employer claims.
A frequent ploy is to maintain they are a part of the "specifically named or commissioned" work.
By the same token, if an Independent Contractor were to provide a photo that was created prior to the agreement, it would not fit the defined "commissioned" statue, as it had not been created specifically for the work, it was done in advance.
IF your work is original, and does NOT fall into any Work Made For Hire or All Rights category, YOU are the owner of the Copyright, and are therefore afforded immediate protection under the Copyright Act.
Next in this series: Fair Use: Can It Interfere with Your Copyrights?
And How To Fully Protect Your Work
and... Copyleft.