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Why Selling Similar Work to Multiple Clients is Risky Business

copyrights for freelance writersBy 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.

Two newsletters:
Abundant Freelance Writing – a resource for freelance writers including 3x a week job postings.
Writing With Vision – for those who want to get a book written.

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{ 20 comments… add one }
  • Thanks for this. Newbies in particular need to know this. I’m going to bookmark it.
    Elizabeth West recently posted..Upcoming- April A to Z Blogging Challenge and PoopedMy Profile

  • I had this conversation with a new writer a few weeks ago, who wanted to use the same idea in a query (in hopes of scoring more than one gig). I advised to make the focus and interview sources different in each to guarantee she’s creating a new product each time.

    Because I write on the same topics a lot, I’ve had to tread carefully. I proposed an article to two magazines – different focus with each. They both accepted. I was careful to make them much different to avoid any issues. In fact, I was a little doubtful on the one, so I tweaked the focus even further and changed up my interview questions to steer it in a different direction.
    Lori recently posted..Is it Monday AlreadyMy Profile

    • That’s a good example Lori. In your case you didn’t have one article written up front, so you couldn’t really derive another from it. And I think that’s a good way to look at it. You’d have to pretend you never wrote (or read) the first article in question. Then you’re able to separate yourself from it and write a completely fresh article on a new twist of the same topic.
      Jenn Mattern recently posted..Ten Reasons to Launch an Author BlogMy Profile

  • This is excellent advice. Thank you for laying it out so clearly.
    Zoe Kirk-Robinson recently posted..A shared webcomics superhero universeMy Profile

  • Every writer should read this post. Thanks so much!!!!
    Gina-Marie Cheeseman recently posted..Clean Energy Could Supply Third Of Northeast PowerMy Profile

  • This is an interesting conversation, as I often write about the same topic for a second market and use some of the same sources. My rule is there shouldn’t be a single sentence or quote that they share. It is a completely new work, though it tackles similar subject matter.
    Carol Tice | Make a Living Writing recently posted..The Most Amazing Writing Opportunity EverMy Profile

    • I’d take it even one step further and try to add a slightly different spin. For example, you might write about how new legislation affects small businesses in one piece and then talk about how the same legislation more specifically affects the independently-employed (with no employees). Or the home business segment. Or businesses in a certain region. Or young entrepreneurs breaking in. etc.

      I think with news-oriented writing that can be easier. With instructional content you might have to make more of a change. For example I wrote a blog post for a client’s social media blog quite some time ago about how Twitter repeatedly was pissing off their base by making changes without asking for feedback first. More recently I had another issue with Twitter, specifically about lacking elements of their “block” feature. So I covered it on my own blog. I still mentioned the past examples of problems because they didn’t ask for user input, but the article was completely different — in letter form this time and focusing on a specific feature rather than the overall underlying issue with feedback.

      It might be more questionable if you wrote a how-to piece with 5 steps and simply reworded those same 5 steps in another article. But I’d say in most cases you could find a way to spin it into a somewhat different article — one as a traditional list post and another as more of a photographic tutorial or screencast for example. I wrote a blog post called “How to Write a White Paper” before. It’s a topic I know I’ll cover again. But the “how” doesn’t have to include the same exact steps and examples. Changing the reader target helps (in that case targeting a DIY small biz crowd whereas I might write it for freelancers who want to sell the service in a future article).

      Little changes in your focus at the start can lead to fairly significant changes in the end result, even if some of the same sources are cited. 🙂
      Jenn Mattern recently posted..Ten Reasons to Launch an Author BlogMy Profile

  • Jenn and Anne, a few years back I wrote a short book for major college textbook publisher on what college students can do to minimize their environmental impact. The publisher planned to only use the book with a few select texts, so I asked if I could have the rights to create and sell the same material to the general public. They said no, and that I would need to do a total rewrite if I wanted to publish my own book on the subject.
    John Soares recently posted..Top 10 Tips For a Successful Teleseminar-Podcast InterviewMy Profile

    • “Total rewrite” is a questionable term, and it’s possible they might not realize that a “rewrite” is technically derivative. Not sure how you can have a “total” rewrite. It’s either a rewrite of the original or it’s not. My suggestion would be clarify with them in writing what you may and may not do (assuming they own the copyright). You should also carefully check your contract about anything related to direct competition to see if there’s any further clarification in there. Even if you do what you think is a “total rewrite” that doesn’t mean they can’t later sue you for infringement, saying it wasn’t enough or that it’s still derivative.
      Jenn Mattern recently posted..Ten Reasons to Launch an Author BlogMy Profile

      • Jenn, although I recognize the need for caution, in this case I’m with John. When it comes to my material I know what a total rewrite is. I also know when I start to fudge, usually from fatigue.

        I know that any book I wrote for Hazelden back in the day, would be totally different if I wrote it today – partly just time passing means changes – both in the way I write and, usually, the subject matter.

        Caution, yes, but not to do it at all? I don’t think so.

        • Anne, what you’re talking about isn’t a rewrite. It’s a new project with new information — something written with new information is based on that information, not based on the original work. But… if you were to rewrite any portion of the original work you sold the copyright to, it doesn’t matter if the whole work is included. You would have to be working under fair use rights (which generally limits you to using very small portions of a work — so rewriting 50% of a book would still require the copyright holder’s permission).

          The problem is with the term “rewrite” which is why I said he needs to have them clarify. Any “rewrite” is a derivative work, even if changes are significant. It’s very possible that the publisher was saying it’s ok to do that as long as the text is technically different. But you should not take a legal risk without being clear — and them choosing to use the term “rewrite” in this case is not clear. Either they’re granting him permission to do that, understanding that they’re essentially granting him a license, or they’re trying to say they don’t mind him covering the topic again in a different way to sell elsewhere as long as he doesn’t use the material written for them. There’s a big difference, and people aren’t always clear about that. Therefore it’s better to get clarification like I said; not simply abandon the idea (not what I said).
          Jenn Mattern recently posted..Ten Reasons to Launch an Author BlogMy Profile

  • Not sure I agree with this in regards to online content. If you do a search for any type of common subject matter, say something like “coffee makers” you will find lots of similar content. There’s only so much you can say about a coffee maker, yet there are thousands of sites that sell, or are affiliate marketers for, coffee makers and use articles and blog posts for SEO purposes. Trying to prove that you rewrote an article on coffee makers for one client and sold it to another would be next to impossible.
    Candace recently posted..Writers are Made of Sugar and SpiceMy Profile

    • I disagree. I prove people have stolen my content all the time and pursue it, and yes, sometimes they make minor edits. And it isn’t always difficult to show that you rewrote one article as opposed to finding new sources to write something similar. Whether or not you think you’ll be caught has nothing to do with the legality of it. And really, your ethics are up to you. But if someone can’t operate in business legally I’d question whether or not they should be there in the first place. Karma is frequently a bitch, and things have a tendency to catch up with you. If someone’s willing to break the law and risk being caught, that’s their choice. But they’d better be willing to live with the consequences. Assuming people can’t prove you broke the law isn’t justification for breaking it.
      Jenn Mattern recently posted..Ten Reasons to Launch an Author BlogMy Profile

      • I’m with you, Jenn. And I can think of things to say about coffee makers that if not new is at least different. Sure, it won’t be deathless prose, but it will be original. Suspect most writers can do the same.

        • Exactly. Facts alone aren’t copyrightable. So no one expects that they be completely unique. But your voice, your style, or your take on a subject is different. That can always be uniquely yours. And it’s very unlikely that a writer couldn’t come up with a few different ways to talk about the same general subject. The second and third don’t have to be directly based on the first.
          Jenn Mattern recently posted..Ten Reasons to Launch an Author BlogMy Profile

  • Thanks so much for agreeing to be a host during my blog tour Anne. 🙂
    Jenn Mattern recently posted..Ten Reasons to Launch an Author BlogMy Profile

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