The Rights Stuff

Copyright, contract law for freelancers, Part 3

Editor’s note: This is the final installment of a three-part series based on the author’s contribution to an upcoming OWAA publication. PowellBy Bill Powell  OWAA Legal Counsel Having beaten you down in the first two articles in this series, I’m going to try to lift you up a little.  I’ll start with stories about some movies. Because J.R.R. Tolkien did not sell to a publisher all rights to his stories about a weird place called Middle Earth, fictional people with furry feet called Hobbits and a magical ring, his descendants are now reaping millions from some movies filmed in New Zealand.  A guy named Stan Lee, who was the inspired genius behind the creation of Spiderman, the X-Men and several other superheroes during his 40-year affiliation with Marvel Comics, did not give up all rights, instead making an agreement that he would get 10 percent of any profits from movie rights. He had to sue to get it, but in 2005 his contract was ordered to be enforced; reports are he got around $10 million initially, followed by more. Mr. Lee and Marvel settled their dispute after he won at trial, just a few years ago. My son who writes comics and graphic novels tells me another graphic novelist recently published a thinly disguised account of the dispute, in which the character representing Mr. Lee is portrayed as both victim and hero and the company representing Marvel is portrayed as evil.  An article I wrote earlier for Outdoors Unlimited, called “Being Esau” (March 2003), using biblical terms, succinctly stated why, despite adverse rulings and publishers’ demands, authors ought not give up all rights to what they create. Another article (November 2002) addressed the question of how much change you have to make to a piece to turn it into a different piece you can sell separately. One answer is that if you sold all rights, you can’t sell anything that looks like the first one in any significant way, because doing so will infringe the copyright of the publisher to whom you sold the first piece. You have to treat the earlier piece as if someone else was the author.  Given the state of copyright law, there are a few things you can do or try to do. I’ll offer some concrete suggestions. When you get a contract in the mail, look for wording calling you an “independent contractor.” Legally that means someone who is not an employee – someone for whom the other party does not have to provide a place to work, equipment, tax withholding, etc., someone whose actions and statements the employer takes no responsibility and has no liability for. Virtually all freelancer contracts, from before the “Tasini” ruling and still now, have such provisions. Those provisions are logically and legally the opposite of what is involved in the “work for hire” doctrine, under which the employer gets to be treated as the owner of creative works produced by its employees. Point out this inconsistency, and tell the editor you’re willing to do it one way or the other, but you are not willing to let them have their cake and eat it, too. All rights should cost a lot more, since they’re not doing your tax withholding, giving you an office and a desk and buying you a computer and paying you even when you’re on vacation or sick and providing you with health insurance and a retirement plan. You should demand enough to cover all that if they demand the same rights they get to employee-produced work.  Mark up these contracts the way you want them to read and send them back. You will risk losing sales, but you also will avoid becoming victimized, and may be saving your kids’ inheritance. You’ll also be keeping the opportunity to publish your own works in a collection later if you should ever want to do that. Even that is taken away by many of the contracts offered these days.  I’d suggest a low-key exchange, keeping it at the editor level if possible. Don’t sound like you’re fighting a crusade, even though you are. That would make it more likely to get upper management and lawyers involved, which is more likely to cause them to harden their position.  This advice is not given in a vacuum or theoretically. I’ve dealt with many freelancers for whom this approach has worked.  I’ll conclude this series of articles with one other very specific bit of advice, for those with day jobs. Be absolutely scrupulous about keeping your freelance activities and all the equipment and supplies you use for those activities completely separate from your employer’s. Don’t give in to temptations to mush together work for them with work for yourself. Keep a time clock in your head and on paper, if any dual-purpose activities occur, and keep track of when you’re an employee and when you’re a freelancer. If you ever do make use of your employer’s vehicles or cameras or other equipment for your freelancing, be absolutely sure it’s OK, and get that in writing. The Copyright Act explicitly states the copyright for any creative work an employee does while on the job belongs to the employer unless there is a written agreement to the contrary. In the long run, you’d be better off paying for use of their stuff, or reimbursing for mileage or supplies, and documenting you’ve done so. The idea is to be able to prove that you were not on the job when the freelance work was done. It’s best not to mix these things at all. [print_link]

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