- •Preface
- •How to Use This Material
- •Lesson 1 : What Is a Copyright?
- •For More Information
- •Lesson 2: What Are the Rights of a Copyright Owner?
- •Question 1
- •Question 2
- •Question 3
- •Question 1
- •Question 2
- •Lesson 3: Who Owns a Copyright?
- •Question 3
- •Question 4
- •Lesson 4: How Long Does a Copyright Last?
- •Question 2
- •Registration
- •Question 3
- •Question 4
- •Question 5
- •For More Information
- •Lesson 7: Fair Use and Public Domain Understanding Fair Use
- •Applying Fair Use Doctrine
- •Examples of Fair Use
- •Examples That Are Not Fair Use
- •Understand Public Domain
- •Avoid Copyright Infringement
- •Get Permission to Use Copyright-Protected Material
- •For More Information
- •Lesson 8: What Is a Trademark? Trademarks
- •Service Marks
- •Collective Marks
- •Certification Marks
- •Lesson 9: How to Select a Protectable Trademark
- •Requirements of Distinctiveness
- •How to choose a mark
- •Confusing Similarity to Another Mark
- •Distinguishing Goods and Services
- •Lesson 10: How to Protect Your Trademark
- •Use the Mark
- •Use the Trademark Symbol
- •Avoid Generic Use
- •Monitor the Trademark
- •Take Legal Action
- •Register the Mark
- •Renew the Trademark
- •For More Information
- •Lesson 11: How to Register Your Trademark
- •Make an Initial Determination of Classification
- •Do a Thorough Search
- •Analyze the Report
- •Select the Proper Application Form
- •Submit Specimens
- •Check Status of Application
- •Information Required for the Trademark Application
- •A Few Final Notes Regarding Registration
- •For More Information
- •Resources Copyrights and Licenses
- •Public Domain Resources
- •U.S. Government Websites
- •Appendix: Sample Forms, Contracts, and Letters
- •Sample Assignment of Copyright Agreement
- •Sample Work-Made-for-Hire Agreement
- •Form tx
- •Sample Cover Letter to the Registrar of Copyrights
- •Sample Permission Request Letter
- •Sample Cease-and-Desist Letter for Copyright/Trademark Infringement
- •About the Author
Question 3
Another issue that comes up for speakers and authors is the ghost writer scenario. Let’s say you hire a ghostwriter to write your book. Who owns the copyright in the finished manuscript: you, the ghostwriter, or both of you?
Answer
Unless you had the ghostwriter sign a work-made-for-hire agreement that states that you own all rights in the work, an argument can be made that the ghostwriter (an independent contractor) owns the copyright in the finished manuscript. Tip: Always have a signed agreement that defines the roles, responsibilities, and ownership of all parties involved at the beginning of all business relationships.
Question 4
Suppose you and a colleague join forces to create a workbook. It was her idea, but you did all the work. Who owns the copyright in the workbook: you the worker, your colleague the idea person, or both of you?
Answer
Regarding collaborative associations, it’s a good idea to clarify at the very beginning of the relationship who owns what. Even though, in this particular case, an argument can be made that the person who did the work owns the finished product, the idea person will argue that without the great idea, there would have been no product. Although the person who did the actual work might win in court, it could turn into a costly legal battle. Is the prohibitive cost of litigation worth this win?
Attending to these business details at the beginning of the relationship can prevent conflict and needless hours of wasted time and energy.
A tactical way around the ownership issue is to have independent contractors sign an agreement stating that it is a work-made-for-hire relationship and that you, not them, own all rights to and interest in the work being created in advance of any work they do for you. (For a summary of copyright ownership, see Table 5.)
Table 5. Copyright ownership.
Scenario |
Copyright owner |
Special circumstances |
A person creates a work of art or authorship. |
The creator |
• Two or more people: Copyright is owned equally, unless an existing agreement states different terms. • Minors: Because state law governs contracts, it is best to seek legal advice before entering an agreement with a minor. |
A person creates a work of art or author-ship while in the employment of another. |
The employer |
|
A person is commissioned to create a work of art or author-ship in exchange for monetary value. |
The creator, unless a work-made-for-hire agreement has transferred ownership rights to the commissioner |
|
A person creates a work of art or author-ship based on another person’s ideas. |
Arguably, the creator |
Given the potential for a costly legal battle over ownership of copyright, it is best to clarify at the beginning of the relationship who owns what. |
Your Copyright Workshop Part 1. Review Copyright Ownership Over Items Looking back at Lesson 1, review the items you claimed copyright ownership in and determine whether you or someone else owns the work. For example, did you create your website, or do you have an agreement transferring the rights to you? As to the photos you use in your marketing materials, did you personally take them or did you hire someone? If you hired someone, does that person own the copyright in the photos or do you?
Part 2. Move Forward In moving forward, require all independent contractors (for example, web designers, photographers, graphic designers, and editors) to sign a separate work-made-for-hire agreement. Or consider incorporating the work-made-for-hire provision into your consulting agreement. If independent contractors refuse to sign it, you can decide if it’s worth giving up your valuable rights. |
Part 3. Review Your Contracts If you haven’t done so yet, go through your files, review every contract you ever signed, and make sure you didn’t inadvertently give away your rights. Here is a list of some of the agreements you may have signed: consulting agreements, wills, employment agreements, letters of agreement, offer letters, publishing agreements, production agreements, retainer agreements, and any other agreement where you might have consciously or unconsciously given away your rights. As you review these agreements, be particularly aware of provisions titled any of the following: Grant of Rights, Intellectual Property, Work Made for Hire, Reservation of Rights, Reversion of Rights, Transfer of Rights, Assignment of Rights, Ownership, and Relationship of Parties. |
Part 4. Contact a Lawyer, If Necessary If you discover you have unconsciously given away your rights, contact a lawyer immediately to determine if you can remedy the situation.
Part 5. Review the Sample Agreement Review the sample copy of a work-made-for-hire agreement in the Appendix of this Staying Legal Guide (as well as on the accompanying CD). |