By Jennifer Mattern
A while back, Anne asked, How Important are Copyrights Anyway? In that article, Anne mentioned that if you might want to use an article again exactly as-is, then you should make sure you hold onto the copyright. I commented, pointing out that you might even want to be more careful than that — that you should hang onto the copyright even if you want to re-publish or re-sell edited versions of that article. It led to an interesting private discussion about copyright (in the US) and the issue of derivative works.
I promised to turn that conversation and the sources we discussed privately into a guest post. Hopefully it will help clarify the derivative work issue in your own freelance writing. Let’s start with the discussion that occurred.
Is it Okay to Create a “Serious Rewrite” of Past Client Work?
Here was my original comment:
Anne mentions deciding if you could use the article again exactly as-is. I’d be even more careful than that. Here in the US for example, if you sell the copyright to a piece to client A, you cannot rewrite the material in a different format and sell it to client B. That’s creating a derivative work. And only the copyright holder has the right to authorize a derivative work’s creation. If you sign over copyright on the original piece, you lose that right to the work — not just reselling it in its original form.”
Then Anne posed this clarification and question on the blog and via email:
I’m not talking about the same content in a different format, I’m talking about a serious rewrite of the info… do you know off hand where there’s a definition of “derivative work”? This is new to me.
While we also discussed the concept of linking to ghostwritten work being a claim of authorship, I want to focus specifically on the derivative work issue. Sometimes your contract will simply state that there is a full copyright transfer upon completion of a project. Sometimes you’ll sign what’s known as a “work for hire” agreement in the contract, which essentially says the same thing. Either way, if you sign over the full copyright to a client, you lose your right to create derivative works.
That includes a “serious rewrite” or any “rewrite” of the original. That’s because only the copyright holder is authorized to create or commission a derivative work based on something they hold those rights to. Therefore if you try to sell something too similar to another client (or even a little bit similar but based on the original work), you run the risk of being sued.
What Exactly Is a “Derivative Work?”
To give you a more official definition of what a derivative work is here’s what constitutes a derivative work in the US:
A derivative work is a work ‘based upon’ one or more preexisting works. A derivative work is created when one or more preexisting works is “recast, transformed, or adapted” into a new work, such as when a novel is used as the basis of a movie or when a drawing is transformed into a sculpture. Translations, musical arrangements and abridgments are types of derivative works. – Source
Changing the story or narrative doesn’t mean you have a completely new work. Take the book-to-film example they gave. Film adaptations can be very different from the original books, but because they’re “based upon” that original, they’re derivative works. The copyright holder frequently licenses this right to create a derivative through options.
Who Can Authorize Derivative Works?
The document I linked to above also covers the issue of the right to authorize derivatives. It very clearly gives the copyright holder (in our example that is your client) the “exclusive right” to “prepare derivative works based upon the copyrighted work.” More specifically:
“The copyright law grants copyright owners the right to control the abridgment, adaptation, translation, revision or other “transformation” of their works. A user who modifies — by annotating, editing, translating or otherwise significantly changing — the contents of a downloaded file creates a derivative work. Derivative works may also be created by transforming a work, such as an audiovisual work, into an interactive work.”
Notice that this exclusive right even covers “significantly changing” the original work. So you can’t take Article A which was written for one client (and the full copyright transferred) and reorganize, reformat, or rewrite that article to even a significant degree to sell to another client — not without the first client’s permission.
That said, it doesn’t mean you can’t cover similar topics for other clients (unless you have a specific clause in your contract like a non-compete agreement that doesn’t let you work for competitors — but by the very definition of freelancing you shouldn’t be put in that position in the first place). If you want to cover the same topic, you simply have to start from scratch. Come up with a different angle or approach, and use different source material. Don’t pull anything from the work you’ve already sold.
So what’s the safest bet? Either keep your copyrights and only license the material (first rights, print rights, Web rights, etc.) or get written permission before creating any work that could be considered a derivative of the original piece you sold. If you can use the term “rewrite” to describe your new article to any degree, you’re creating a derivative.
Now, as much as I’ve studied media law issues and stay on top of the IP side where it affects my own work, I am not a lawyer. This article is for informational purposes only, and it does not constitute legal advice. If you’re concerned about your rights regarding your own past work, I strongly suggest you speak to a licensed legal professional who understands intellectual property law. You can find more information about copyrights in the US from both the US Copyright Office and US Patent and Trademark Office.
About Jennifer Mattern
Jennifer Mattern is a freelance business writer and professional blogger who writes about freelance writing, indie publishing, social media, and small business. Her own blogs include AllFreelanceWriting.com, SocialRealist.com and AllIndiePublishing.com. She also publishes e-books for freelance writers and is scheduled to publish her first nonfiction book, The Query-Free Freelancer, early next year.
Image from http://www.sxc.hu