Reclaiming your Copyrights

Music by Brandon Giesbrecht from Flickr (Creative Commons License)

Music by Brandon Giesbrecht from Flickr (Creative Commons License)

It was recently announced that Sir Paul McCartney filed papers in the United States to reclaim the rights to 32 songs from The Beatles’ catalog. The rights to these songs are currently owned by Sony. Yes, there is a provision (call if a loophole if you will) in the U.S. Copyright Act that allows for this.

How the Rule Works
This is a rule that applies to all creatives, not just a rule that applies to the rich and famous. You can look it up at 17 U.S.C. § 203 if you want to read it for yourself. The purpose of this rule is to five an author a “second bite of the apple” to those who may have granted a copyright transfer or license that they later regret. It protects people from being taken advantage of.

Here’s how the rule works: 35 years after the copyright assignment or license was granted or 35 years after the work was published, the author(s) can send notice to terminate this transfer or license and reclaim their rights. There’s a relatively small window in which an author must send the notice of termination with the effective date. A copy of this notice must be filed with the U.S. Copyright Office. If an author has passed away, whoever has the author’s “termination interest” in the work can send the notice – usually the author’s family.

There is one caveat to this rule – it does not apply to works made for hire.

Why More People Don’t Take Advantage of This
Why is this the first time most people are hearing about this loophole? Most of the time, it’s not worth pursuing.

At 35 years after a work was created, there is likely little or no money to be made off the work, so from a financial perspective, it’s not worth pursuing. If money is being made from the work, the author may be better off leaving their work in its current situation and the royalties keep flowing in. They don’t have to fix what’s not broken.

In Sir Paul McCartney’s case, he signed over the rights to his work decades ago, and yet he is still going strong as a musician. The BBC article on his bid to reclaim his rights specifically stated that he’s trying to obtain the publishing rights in his music. John Lennon’s share of the rights in the McCartney-Lennon catalog will remain with Sony.

If you signed away your copyright in a work and you wish to reclaim your rights, speak to a copyright attorney about your options. If you have questions about copyright or intellectual property ownership that you want to discuss with me, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

If Someone Sends you a Photo of Themselves, Do you Own It?

Parade Selfie by Paul Sableman from Flickr (Creative Commons License)

Parade Selfie by Paul Sableman from Flickr (Creative Commons License)

Frequently I hear questions like, “If someone emails or texts me a photo of themselves, does it become my property?” Many people in this situation want to know if they own the photo and what they are allowed to do with it.

The answer to “Do I own the photo?” is “Yes” and “No.” Yes, you do own a copy of the photograph by virtue of the fact that someone gave it to you. However, owning a copy of a photograph does not mean that you own the copyright in the image, which is why you can’t do whatever you want with the picture. If the person who sent you a photo intended to give you the copyright as well, the copyright assignment would have to be in writing.

Think of getting a photo via email or text message like it getting a postcard in the mail. The postcard was addressed to you so you now own it, which means it you can look at it, put it on your refrigerator, and if the message doesn’t contain something that any reasonable person would know the sender would expect to be kept private – you could show it to others. However, you cannot make photocopies of the postcard and sell it or send it to others without the copyright holder’s permission.

Keeping this in mind, it should be obvious that the fact that someone sent you a photograph does not give you permission to do whatever you want with it. You would have to get permission from the copyright holder to post it online, and if it’s an image the sender would expect you to keep private, merely showing it to others could be illegal. If the photo in question is an explicit image, showing it to others could violate your state’s revenge porn law, which may be a felony.

With few exceptions (like child pornography) having a photo is not illegal but what you do with it could be. Therefore, if someone sends you a photo of themselves, you may keep it for your personal viewing pleasure but it could be illegal to share it with others.

This is an area of law that is still evolving. Since mobile devices come equipped with cameras, it’s important for everyone who has one is mindful of their dos and don’ts regarding sending and receiving images. If you want to talk more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

Copyright Assignment vs Exclusive License

Is Copyright a Little Fuzzy? by Elias Bizannes from Flickr (Creative Commons License)

Is Copyright a Little Fuzzy? by Elias Bizannes from Flickr (Creative Commons License)

I recently got an email from someone who asked me to explain the difference between a copyright assignment and an exclusive copyright license. I told him to call me and I’d explain it and he never did. So I’m writing a post about it.

The main difference between an assignment and a license is who owns the copyright. In an assignment you give up ownership and in a license you retain it.

Copyright Assignment
When you have a copyright assignment, you give someone else your copyright (usually in exchange for money).  Once you assign your copyright, you no longer own it. You can’t get it back unless the person you assigned it to gives it back or sells it back to you. Copyright assignments have to be in writing to be valid.

If you assign your copyright in a work to someone and then you try to use that same work – perhaps in a new project or your portfolio, you could be committing copyright infringement. The person you previously assigned your copyright to would have the authority to make you stop using it.

This may sound bizarre to you and some people have trouble grasping the idea that you can create something and be in a position where it’s illegal for you to use it. Think of it in terms of other property: If you sell your neighbor your car, you’re no longer allowed to drive it without their permission. Likewise if you sell your copyright to someone, you need their permission to use it.

Exclusive Copyright License
When you have a copyright license, you retain ownership of your copyright and you give someone permission to use it. In a license, you determine which of your copyright rights you’re letting the person use.  (A copyright comes with the rights to copy, distribute, display, perform, and make derivative works.)  A copyright license can be for all the rights, or just some of them.

An exclusive copyright license means that only the person who is licensing the rights can use them. You, as the copyright owner, can’t even use them while the license is in place. A copyright license can be perpetual or time limited.  So when a person has an exclusive perpetual copyright license that covers all the copyright rights to a work, it looks similar to a copyright assignment, except that the ownership of the copyright didn’t change. If someone wanted an exclusive perpetual copyright license, that might be a situation where the owner might want to consider assigning the license.

In a copyright license, you can have rights over what the person licensing the rights can do with it. For example, you might have the right to ensure that the licensing party is adhering to the standards you set regarding how the copyright will be used. If it’s a situation where you’ve licensed your copyright in exchange for share of the profits, you would be owed an accounting to ensure that you’re not being ripped off. Licenses tend to be complicated and should be in writing.

Deciding whether you should have a copyright assignment or a copyright license for your work can be a complicated decision that should be evaluated carefully, possibly with the assistance of a copyright attorney in your community who can explain your options and write effective contracts for you.

If you want to chat with me about copyright, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
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Highlights on Copyright & Publishing from the Indie Author Conference

Rockin' my Magic Red Chucks at the Changing Hands Indie Author Conference - Photo by Jeff Moriarty (used with permission)

Rockin’ my Magic Red Chucks at the Changing Hands Indie Author Conference – Photo by Jeff Moriarty (used with permission)

I had the pleasure of speaking at the Changing Hands Indie Author Conference over the weekend. It was a day packed with sessions for indie authors and aspiring indie authors on how to publish and market a book. I did two sessions called “Legally Speaking” on how copyright applies to book writers. Here are the top 10 highlights from my presentation and the audience’s questions.

1. You have copyright rights in your work the moment your ideas are captured in any tangible medium (paper, computer file, etc.). You still have your rights even if you forget to put a copyright notice in your book.

2. Having a copyright gives you the exclusive right to copy, display, distribute, perform, and make derivative works based on your work. These rights last for the duration of your life, plus 70 years if your work was created after January 1, 1978.

Close-up of my Magic Red Chucks - photo by Pam Slim (used with permission)

Close-up of my Magic Red Chucks – photo by Pam Slim (used with permission)

3. You don’t have to register your copyright with the U.S. Copyright Office to get your rights. You do have to register if you want to sue for infringement.

4. You should submit you application to register the copyright in your book before you make it available for sale.

5. If you live in a community property state (like Arizona), copyrights acquired during the marriage are community property unless you have a prenuptial agreement or spousal agreement that states otherwise.

6. Make sure you understand the difference between a copyright assignment and a copyright license. In the former, you give away your copyright rights; in the latter you retain copyright ownership but grant someone permission to use some of your rights.

7. If you are incorporating other works, characters from existing works, or trademarked products, consult an attorney to make sure you understand what legal risks you’re taking with your project.

8. You will need works made for hire contracts or copyright assignments for artists who contribute to your book (i.e., illustrations, graphics, forward or afterward by another writer, cover art) to give you the copyright in what they create. Consider adding a provision to the contract that states the contributor indemnifies you if you’re accused of copyright infringement because of their contribution.

9. When you create a budget for your book, plan to pay for a lawyer for a few hours to draft or review your contracts. Use a copyright lawyer, not your lawyer buddy who specializes in personal injury law.

10. If you have a publisher, read your contracts carefully to make sure you understand what rights you’re giving up (if any) and how and when you’ll be paid. Don’t sign anything you don’t understand because you’ll probably be stuck with the contract as long as it’s not illegal. Never be afraid to ask for clarification.

If you want to chat more about this topic, please can connected with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Publishing Contracts: Copyright Assignment vs Copyright License

The best analogy for copyright is a jar of markers where each marker represents one of your rights - 10 things: Sharpies by Crystl from Flickr

The best analogy for copyright is a jar of markers where each marker represents one of your rights – 10 things: Sharpies by Crystl from Flickr

I had the pleasure of speaking about the legalities of publishing at Changing Hands Indie Author Conference on February 9, 2013. My session covered the basics of copyright, the importance of registering your copyrights and publishing contracts. I wanted to do a recap of the two types of publishing contracts from a copyright perspective: copyright assignments and copyright licenses.

A copyright is the rights you get in your work. Your rights are created the instant you have an original work of authorship fixed in a tangible medium. As the copyright holder, you have the exclusive right to copy, distribute, display, perform, and make derivative works based on your original work. If you want to let someone publish your work, you need a copyright assignment or a copyright license. This should be a signed contract between the parties and it should be explicit about the rights you’re giving up (if any) and what you will get in return.

Copyright Assignment
When you give someone a copyright assignment, you give them your copyright. When you have a copyright assignment, you do not own your copyright anymore; the other party does. If you publish your work after you assign it to someone, you will be committing copyright infringement, even though you were the original author of the work. Some publishers require you to assign your copyright to them or else they won’t publish your work.

If you give someone a copyright assignment and you later regret the decision, you have to buy your copyright back from them. I know at least one artist who sold the copyright in his work and later purchased it back because it was more lucrative for him to control it.

Copyright License
If you grant someone a copyright license, you retain ownership of your copyright and you give the other party permission to use some or all of your copyright rights. You may grant a publisher the rights to publish your work in print and/or as an ebook but retain the right to create an audio version of your work. J.K. Rowling retained her internet rights to the Harry Potter series when she negotiated her contract with her publishers, which is why she could create Pottermore.

If you license your work, the license should explicit state whether the license is exclusive or non-exclusive, time-limited or perpetual, and clearly state how you will be compensated for granting the other party the license.

Publishing contracts are complicated and it’s best to have a lawyer review the contract before you sign it to ensure you understand what rights you’re giving up and what rights you get to keep. As always, if there’s a portion of a contract that you don’t understand, don’t sign it.

I also created a video this week about the difference between copyright assignments and copyright licenses here.


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