by Cyndy Hardy
The U.S. Court of Appeals of the Second Circuit today reversed a lower court’s decision that would have paid about $18 million to freelance writers whose work was unlawfully distributed by some major publishers and electronic database services.
The writers lost this round of litigation because they had not registered their work with the U.S. Copyright Office. The lower court had no jurisdiction over unregistered work according to the decision.
Why should you care? Because the publisher who bought your $20 article might be illegally posting it on hundreds of Web sites, selling it to an article database or rewriting your words. The law says you have a right to be paid.
As an independent professional writer, you do not ‘sell’ an article. You license specific uses of it, according to the American Society of Journalists and Authors. The organization is a plaintiff in the case.
“The question isn't whether you will ever resell your piece. The question is: Should others resell your work for their profit alone? Writers shouldn’t let publishers and others profit perpetually from their property while they – the creators of that property – get nothing,” states the ASJA.
“Retention of copyright is essential, as many freelancers make a significant income through the resale of their work,” according to the National Writers Union, which is also a plaintiff.
Twenty individuals and five organizations and companies are listed as plaintiffs in the $18 million suit. Certifying the case as a class action implies the widespread harm done to individual writers.
The second you put an original article in a fixed form, you exclusively own and control the rights to publish and republish your work. Be safe. Print a copy. You also own the right to display the work, change it, and distribute copies.
You don’t have to publish the work. You don’t have to put a copyright symbol on it. You can, of course, but it’s not required by law.
You don’t even have to register it with the U.S. Copyright Office. However, if you don’t register, you cannot sue for infringement. Note: the ‘poor man’s’ method of sending a copy to yourself does not fly with the law.
There are only two exceptions to your rights under a provision called “work made for hire.” Refer to the Copyright Office Basics on the U.S. Copyright Office Web site.
If you are employed by a publisher you do not own your work if it was prepared within the scope of your employment. You do own work you create for yourself or other publishers.
As a freelancer, if you write a specially-ordered or commissioned work for use in a collection or compilation, the copyright is yours unless you expressly agree in writing to transfer your rights to the buyer.
In plain English, when you sell a license to a magazine, a newspaper, a compilation book or a Webmaster, it is only a ‘work made for hire’ if you agree by signing away your rights in writing. You own the copyrights to your work. The publisher owns copyright to the compilation and is allowed to make derivatives, for example ‘The Best of 2007.”
The Internet poses significant challenges to protecting one’s copyrights. Many compilations are sold to electronic directories and databases. Many publications sell ‘reprints’ from their online archives.
This “invades the core” of authors’ rights, according to the U.S. Supreme Court’s 2001 ruling in New York Times Co., Inc., et al. V. Tasini et al.
“[The] electronic publishers infringed the authors’ copyrights by reproducing and distributing the articles in a manner not authorized by the authors and not privileged by sec. 201(c). We further conclude that the print publishers infringed the authors’ copyrights by authorizing the electronic publishers to place the articles in the databases and by aiding the electronic publishers in that endeavor,” wrote Justice Ruth Bader Ginsburg.
With so many authorities battling over the issue, why do so many writers continue to squander their rights? Maybe the task of copyright registration is too daunting. Several online resources explain the process. The Copyright Office is the horse’s mouth.
First, the piece must be an original literary work and you must own the copyrights. Make a copy of your work, complete and application and write a check for $45. Put everything in an envelope and send it to the Copyright Office.
Some organizations say you can save money by bundling several pieces in one application. The Copyright Office Web site states this is only true for unpublished works. Published works “may only be registered as a collection if they were actually first published as a collection.”
If your submission is in order, your registration is effective on the date the office receives it. They will send you a certificate in about four months, according to the Web site.
You can register your work anytime; however, your ability to recoup damages is tied to the date of registration. If you register within three months of first publication and before an infringement you could get statutory and actual damages for infringement. Otherwise you can only sue for actual damages.
A more likely reason amateur writers give up their rights may be because they don’t understand the value of their work. Most writers today allow buyers too much control over pricing. Many writers are shocked to learn what professional writers earn.
U.S.-based Editorial Freelancers Association will not post jobs that pay less than industry average fair market prices. For writers, that means $40 to $125 for one to three pages per hour. Research is an additional $25 to $50 per hour.
The Professional Writers Association of Canada lists industry averages of $350 to $500 per page for advertising copy, scripts and news releases. That is not a typo. Online and Web site writers make $1 to $3 per word.
You can bet your buyers understand. SEO is advertising. Because most writers don’t understand this, buyers get ad copy for pennies-to-the-dollar to what they would pay ad firms, magazines and newspapers. Uninformed writers often give away full rights for $0.01 or less per word.
The sound you hear is your money blowing out the window. Stop it.
Disclaimer: The content of this article provides general information. It does not constitute legal advice and should not be relied on as such.
© 2007 Cyndy Hardy All rights reserved. Reprints available by request.
