Magazine article Communication World

Who Owns That Free-Lance Assignment? You May Be Surprised!

Magazine article Communication World

Who Owns That Free-Lance Assignment? You May Be Surprised!

Article excerpt

Hiring a free-lance writer, photographer or artist is normally a simple act -- make the assignment, pay the free-lancer, incorporate the work into your magazine, newsletter or brochure, and enjoy the final product. Not quite . . .

Complications arise when that creative caption, engaging lead or dynamic photograph lends itself to yet another project. In these budget-challenged times, getting double mileage out of material already in house is a tempting solution to many a creative problem.

Not so fast, however. While the free-lancer in question may be flattered that his or her work is attractive to other creative pros, be prepared to negotiate a new fee for the new use of the work. Unless your original agreement specified that you were purchasing the free-lancer's copyright, reproducing it elsewhere is probably a copyright infringement, explains Revelle Gwyn, an Alabama-based business attorney who specializes in copyright and technology issues. That "free" piece of creative embellishment could become an expensive bite out of corporate deep pockets.

According to copyright law, the original "author" (including the author of photographs, illustrations, etc.) is the owner of a work's copyright unless the author is an employee of the company commissioning the work or is working under what is called a "work-for-hire" arrangement. "Work-for-hire" means that an independent artist actually transfers ownership of his or her copyright to a company or another individual. An independent contractor, for example, though hired to do a specific task on behalf of the company, is not an employee and would still have to sign a work-for-hire agreement if copyright ownership was to transfer to the company.

Prior to January 1, 1978, all work by free-lancers in the United States was considered "work-for-hire" unless a separate contract was negotiated. Thus, moving that creative copy or fabulous photo from one publication to another would have been no problem prior to 1978 (and still isn't for works created before then). However, the U.S. Copyright Act of 1976 (which took effect in 1978) greatly strengthened the rights of free-lancers, who now retain all ownership of the copyright to their work -- from the moment of its creation -- unless a separate agreement states otherwise.

Despite the Copyright Act's longevity, editors today often mistakenly believe that because they paid a photographer or writer to complete an assignment, the resulting work belongs to their company.

Ken Kobre, a San Francisco-based free-lance photojournalist, shot a series of stories for the employee magazine of one of his corporate clients. When published, the photographs elicited requests companywide to reproduce the photos for a variety of other purposes -- from newsletters to corporate brochures. There was, he recalls, a period of discomfort when his client wanted to reproduce the photos and realized reusing them would result in another fee. Phone calls to counterparts at other companies and consultations with copyright manuals convinced the client that paying for the reuse was required by law.

Both photographer and client learned a valuable lesson, observes copyright lawyer Gwyn. Although authors need not specify in advance that they are retaining their copyrights, they should not assume that everyone understands the law. And editors should understand that in absence of a written agreement stating otherwise, what they are purchasing from a writer, photographer or artist are "one time rights" to reproduce the commissioned work.

"After all," says Gwyn, "no one would expect to pay for a loaf of bread and then get a second one free. Why expect to get two uses of a photograph (or creative copy) for the price of one?"

Purchasing a copyright is an expensive proposition -- and should be, say free-lancers and their advocates. When free-lancers transfer their copyrights, they give up other opportunities to earn income from their creativity. …

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