>Suz writes...
>>this is NOT true under US law. Under US law, the creator owns the copyright
>>unless he or she has agreed to work under a "work for hire" contract or
>>unless he or she is an employee of the commissioning company.
Andreas writes:
>But that's exactly what he's saying. In the USA, if you do "work for hire"
>(that is nearly all contracting) or if you are an employee of a company,
>then the company owns the copyright. <snip>
>
>If you write a novel or do a painting (artistic, instead of painting a wall
>or an ad) or similar, then you may have a publication contract. In that
>case, you hold the copyright and then negotiate a contract to assign the
>copyright to a publisher. But in many cases, one writes content for
>publication where the copyright is held by the company. For example, I write
>many computer manuals, and there is no discussion of my "owning" the
>copyright. It's work-for-hire.
No Andreas, you're very wrong. In the US, the commissioner ONLY owns the
copyright if the creator signs a "work for hire" contract assigning the
rights to the commissioner and if the work falls into one of nine narrowly
defined categories. The employer only owns copyright automatically if the
work is created by an employee.
Since you write instruction manuals, Andreas, your work may qualify as work
for hire, but only if you had signed a work for hire contract. The
copyright does not automatically default to the commissioner without that
contract.
Also, it is a commonly held misconception that certain types of more
'artistic' works are more copyrightable than others, i.e., a painting to
hang on a wall vs. an illustration for an ad. It is simply not true. In
fact, under copyright law, there is no distinction between between fine art
or commercial art. There IS a distinction between the two under the Visual
Artists Rights Act of 1990, which covers only one-of-a-kind visual arts and
excludes commercial art. However the Visual Artists Rights act concerns
itself with not with copyright, but with certain "moral rights" concerning:
1) protecting the integrity of works to prevent modification, distortion,
mutilation, right, 2) right of attribution and paternity, 3) right of
disclosure to determine how and when a work is presented to the public, and
4) the right of recall to withdraw, destroy, or disavow a work if it is
changed or no longer represents the artists views.
Time and time again, I've recommended purchase of the GAG Handbook to
readers or this list. It has become something of a tiresome litany. The
Handbook included sample contracts for all types of visual artists
including textile design, graphic design, illustration and multimedia
design. The contracts include sections specifying transfer of specified
rights of usage for commissioned commercial artwork. Once again, I heartily
recommend going to Barnes & Noble and handing over your $30 for this
invaluable book.
Here's what the Graphic Artists Guild Handbook of Pricing and Ethical
Guidelines (9th edition) has to say about work for hire. GAG has
previously given me permission to quote from the manual to another mailing
list, so I'll risk that this permission would extend to this occasion:
WORK FOR HIRE:
"Work for hire" is a provision of the U.S. Copyright Act intended as a
narrow exception to the general rule that the artist or author who actually
creates the work owns the copyright to it. The provision transfers
authorship and ownership to the employer or other hiring party who
commissions the work, leaving the artist with no rights whatsoever. While
such a result may be justifiable in a traditional employment setting, the
freelance artist, considered to be an independent contractor for all
purposes except copyright, has no access to any employee benefits that may
compensate for the loss of that copyright and the future earnings it may
represent.
Under that law, a work made for hire can come into existence in two ways:
an employee creating a copyrightable work within the scope of employment;
or an independent contractor creating a specially ordered or commissioned
work in one of several categories, verified by a written contract signed
by both parties and expressly stating that it is a work for hire.
An employed artist is usually defined as one who works at the employer's
office during regular business hours on a scheduled basis, is directed by
the employer, and works with tools supplied by the employer. ......Even as
an employee, however, an artist may negotiate a separate written contract
with the employer, apart from the employment agreement, than transfers
copyright ownership to the artist in some or all the work created in the
course of employment.
Work created by a freelance artist can be work for hire only if the
following conditions are met: the artist and the client sign an agreement
stating that the work is a work for hire; and it falls under one of the
following nine categories as enumerated in the law:
* a contribution to a collective work (such as a magazine, newspaper,
encyclopedia, or anthology
* a contribution used as part of a motion picture or audiovisual work
* a supplementary work, which includes pictorial illustrations, maps,
charts, etc., done to supplement a work by another author
* a compilation (new arrangement of prexisiting works)
* a translation
* a test
* answer material for a test
* an instructional text (defined as a literary, pictorial, or graphic work
prepared for publication and with the purpose of use in systematic
instructional activities
These criteria apply only to work done on special order or commission by an
independent contractor. If there is no written agreement, or if the
agreement doesn no specifically state that the work is made for hire, or if
it is not signed, or if the work does not fall into one of the categories
above, then there is no work for hire and the artist automatically retains
authorship recognition and copyright ownership.
By signing a work for hire contract, a freelance artist becomes an employee
only for the purposes of the copyright law, but for no other purpose. In
addition to losing authorship status and copyright, the artist receives no
salary, unemployment, workers compensation, or disability insurance; nor
does he or she receive health insurance, sick pay, vacation, pension, or
profit-sharing opportunities that a company may provide to its formal,
salaried employees. When a freelance artist signs a work for hire contract,
the artist has no further relationship to the work, cannot display it, copy
it, or use it for other purposes such as displaying the work in the
artist's portfolio. The client, now considered the legal author, may change
the art or use it again without limitation.
Some unscrupulous clients still attempt to gain windfall benefits from work
for hire where there was no signed agreement by claiming that extensive
supervision, control and direction made the artist an employee and,
therefore, the work was for hire. The Supreme Court resolved the issue in
CCNV v. Reid, affirming that in virtually all cases, commissioned works
executed by independent contractors cannot be work for hire unless the work
falls under the nine specified categories listed previously and a written
agreement stating the work is for hire is signed by both parties.
The Graphic Artist Guild emphatically opposes the use of work-for-hire
contracts. Work for hire is an unfair practice that strips the artist of
the moral right of paternity, the right to be recognized as an author. It
gives art buyers economic benefits and recognition that belong to the
creative artist. These contracts devalue the integrity of artists and their
work by empowering buyers to alter the work without consulting the artist
and by preventing artists from obtaining any payment for the future use of
their work.
WORK-FOR-HIRE ABUSES
Clients who insist on a work-for-hire arrangement may resort to other means
that, while unethical, are not prohibited under current copyright law. Some
businesses coerce freelancers by denying the assignment to artists who do
not accept work for hire. Some clients attempt to designate a work for hire
after the fact by requiring that the artisit endorse a payment check or
sign a purchase order in which work-for-hire terms appear (usually in fine
print). Unless this confirms a previous oral agreement, artists who
encounter this should request a new check.
<snip>
The Graphic Artists Guild strongly recommends that artists and clients
confirm all assignments in writing before beginning work, detailing the
terms of the agreement and the specific rights licensed. This professional
practice will avoid any confusion or misunderstanding --or legal
action--concerning the rights sold.
Artists confronted with work-for-hire language on the back of fee checks
may consider crossing out the work-for-hire language and writing "deposited
without preconditions" to mitigate the attempted rights grab.
<snip>
FAIR PRACTICES
The Fair Practices Act, signed into law [in Oregon, in California and in
NY] clarifies who owns the original work of art when reproduction rights
are sold. This legislation was drafted by the Guild's attorneys based on
concerns raised by Guild members.
The Act provides that an original work of art can become the property of a
client only if it is sold in writing ....This Act solves problems that can
arise when clients believe they have obtained ownership of the original art
when in fact they have only purchased rights of reproduction, or when they
believe they have obtained an original through an ambiguous oral agreement.
.....In California and Oregon the law also provides that any ambiguity as
to the ownership of reproduction rights shall be resolved in favor of the
creator/artist.....
Another important piece of legislation that prevents unauthorize
reproduction of artwork was enacted by a Georgia statute in 1990. The
Protection of Artists Act requires commercial printers to obtain written
affidavits from their clients attesting that the artist has authorized the
reproduction of the work when the printing of the art (painting, drawing,
photograph, or work of graphic art) costs $1000 or more. Echoing the
federal copyright law, the Georgia law separates the ownership of artwork
from the right to reproduce it, and puts clients on notice that bills of
sale or purchase orders must state explicitly the extent of the rights
purchased. Any client or printer who uses or reuses artwork would be
subject to misdemeanor penalties. The Atlanta Chapter of the Guild was
instrumental in getting the law passed.
[Note: the GAG Handbook also gets into the differences between copyright
law in the US and foreign countries. If interested, buy the book.]
Suzanne Stephens, Dave Stephens Design; Ashland, Oregon
541-552-1190, 541-1192 http://www.KickassDesign.com/
CyberCircus Grand Prize Winners http://www.thecybercircus.com/
Web Page Design for Designers: http://www.wpdfd.com/wpdres.htm
Clip Art: http://www.freeimages.com/artists/
Tender Loving Care Interactive DVD movie: http://tenderlovingcare.cc/
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