Of Copyrights, Derivative Rights, Ghostwriting and Contracts Oh My

by Anne Wayman

copyrights for freelance writersI had a delightful email exchange with a Debbie Dunn, professional story teller and freelance writer who initially wanted clarity on who owns the copyright when you’re ghostwriting. She explained she’d been offered a gig in her specialty, which is bullying and anti-bullying, but was also being asked to sign a 12 page contract releasing “all” rights to the work she’d be creating.

I of course, focused first on the length of the contract. Good grief! Twelve pages? That is, in my not very humble opinion on the topic, a sign of fear or that someone has let an attorney run all over them. At the writer’s request there was a second, shorter (only 6 pages this time) contract offered.

It’s usual, I explained, that the “author” a writer is ghosting for holds the copyright to the work, but it’s best to actually spell that out in the contract, and that there were probably exceptions. My ghostwriting contracts for books run maybe three pages, and my non-disclosure runs about two.

It turns out the writer’s father is a patent, copyright and trademark attorney. He’d already strongly advised against signing it. In his opinion the contract Debbie was asked to sign would mean she couldn’t ever write in her specialty again.

I’ve never been very clear about derivative rights, and found his response helpful.

Here, with permission, is his response to Debbie about copyright and derivative rights.

COPYRIGHTS AND DERIVATIVE RIGHTS

When a person puts pen to paper, so to speak, that person has a copyright in that writing under the laws of the United States; it is not an enforceable copyright in the courts until it has been registered in the Copyright Office. And this assumes that the Copyright Office first determines that the particular writing is subject to being copyrighted.

For example, an author can take expression that already exists, add new expression to it and end up with something new, that is, a new and different work of authorship. This work, however, is called a derivative work, which can be separately protected by copyright. A screenplay, for example, is clearly different from the novel, yet clearly based upon it, or derived from it. In other words, another form of a derivative work. I had a client who had been asked to prepare a screenplay from a book that the person had written. She wrote the screenplay, and then came to me to obtain a copyright. When I found out that the author had assigned all her rights to the publisher of her book, I had to tell my client that I could not obtain a copyright for her because the author no longer had those rights as derivative rights belonged to the publisher.

In the present situation under the proposed contract, the subject matter involved has to do with  bullying. How does one separate what you have been writing upon for years from the subject of bullying that will be involved in the proposed contract in which they wish you to assign the copyright of anything involving the same subject matter?

The new contract still does not resolve the problem that a person being assigned a copyright has derivative rights from that copyright assignment that would interfere with what you would wish to do. The contract also goes overboard requiring you to assign trademarks, trade secrets, patents, etc., all completely unnecessary. Having been a patent attorney for over 50 years, I cannot see how a patent would ever be involved on the subject of bullying; however, on the premise that wonders never cease, if such a thing should be possible, I advise you against closing off that avenue also.

Blacks Law Dictionary defines derivative work:

“under the copyright law, a work based on a pre-existing work, such as a translation, musical arrangement, fictionalization, motion picture version, abridgment or any other form in which a work may be recast, transformed or adapted, is a derivative work. Only the holder of copyright in the underlying work (or one acting with his permission) may prepare a derivative work. The preparation of such work by any other party constitutes infringement.”

If you were to sign this contract, you would be stymied for the rest of your writing career, never knowing whether you were free to do one thing or another on the subject of bullying.

Malcolm Dunn, Attorney at Law

Debbie Dunn is the School Conflict Resolution Examiner at the national level for Examiner.com. Here is her link:  http://www.examiner.com/school-conflict-resolution-in-national/debbie-dunn She has also been a professional storyteller since 1989. She travels the USA telling stories and teaching storytelling. Here is her storytelling website: http://moredunntales.com

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{ 8 comments… read them below or add one }

Ron's SEO Copywriting Services September 6, 2011 at 6:57 am

Just for additional information, if you have not already heard of it, a new bill is being proposed…America Invents Act. I wonder, if this Act applies here as well.
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Anne September 7, 2011 at 10:10 am

http://judiciary.house.gov/issues/issues_patentreformact2011.html is the link to the Judiciary Report on the proposed America Invents – I haven’t read it. Patents are quite different from copyrights and if this passes there may well be some impact… I just don’t know what it is. I do know our patent sytsem needs reform… hasn’t changed for almost 60 years… think internet, software, genetics.

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Mr. LemurBoy August 23, 2011 at 8:32 pm

This is excellent advice, thanks for writing it. I think I may have to show this to some friends of mine.

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Debbie Dunn August 23, 2011 at 3:09 pm

Anne,
Thanks for putting together a great article. Have a great day,
Debbie Dunn

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Anne August 24, 2011 at 11:43 am

Hey, thanks to you and your dad…

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Elizabeth West September 20, 2011 at 10:22 pm

Debbie, thank you for sharing that and thank your dad too. That is valuable information. We should all remember not to sign anything without reading it thoroughly and checking with someone on the parts we don’t understand.
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John Soares August 23, 2011 at 11:54 am

Very important post Anne, one all freelance writers need to read.

It’s not just ghostwriters who could be affected by this, but anyone who writes on any subject. I once received a contract for a project to write test questions for a college history textbook. The contract prohibited me from writing anything similar for any competing publishers. I had the offending clause stricken.
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Anne August 23, 2011 at 12:55 pm

Yes, I think it’s important too… and yes, I’ve crossed things out of contracts and made it stick.

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