Ask Author Law

Who owns the copyright in this teacher's book?

May 11, 2016

Tags: Author Law, Writing, Sallie Randolph, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Work Made For Hire, WMFH

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I am a third grade teacher who prepares many creative lessons for my students. I decided to write and self-publish a book about how to be a great teacher. I was telling some of the other teachers in the faculty room and word of my plans reached the principal. He stopped by my classroom and told me that the school district will own the copyright in my book because they are my employer. I am stunned. I have already invested a lot of money, time, and effort and I want to go ahead. But I am afraid that the school district will sue me if I go ahead. Can they?

A: My immediate though about what you should say to this misguided principal is not repeatable. He is wrong, wrong, wrong! I am outraged on your behalf. Sadly, many educators are ignorant about copyright. Unless writing books about teaching is part of your job description you are the owner of the copyright in your book from the moment you have “fixed” it in a “tangible medium of expression.”

Your principal is probably misunderstanding the work made for hire (WMFH) doctrine that creates two exceptions under United States copyright law for initial copyright ownership by the author of a work. The first WMFH exception to the rule that the author is the automatic copyright owner for works she creates is when an employee is expected to write as part of her job description.

Section 101 (1) of the U.S. Copyright Act (Title 17 or the United States Code) defines work made for hire as “a work prepared by an employee within the scope of his or her employment.” In the case where an employee writes as part of her job, the employer is considered to be the legal author and copyright owner. You were hired to teach, not to write books. Therefore, you are the owner of the copyright in your book about teaching.

You have also asked if the school district can sue you if you go ahead and publish your book. Unfortunately, it’s entirely possible for a misguided individual or organization to file a frivolous lawsuit. However, I doubt if your local school board’s legal counsel would agree to file. In your case, the risk of facing a lawsuit over this misinformation is low. Please don’t be discouraged by this principal’s ignorance of copyright law. Good luck with your book!

You might need that luck if you should decide to submit your book to a textbook publisher, however.That’s because of the the second definition of WMFH in the Copyright Act, “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. 17 U.S.C. § 101 (2).

Many academic and textbook publishers do try to obtain the copyright in authors’ works in their contracts. As a writer, you don’t want to sign a publishing contract with WMFH language unless you are truly willing to give up your copyright. There are a few legitimate reasons for publishers to own the copyrights, but, in my opinion, those reasons are few and far between and writers should avoid WMFH contracts whenever possible.




Am I an employee? My work-made-for-hire contract is not consistent.

November 30, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, WMFH, Work for Hire, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Articles, Non-fiction

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I’m a full time freelancer who writes for many magazines and newspapers. I’ve just been offered a contract to write one article a month for a web site. It has a clause that says I am to be an employee and that everything I write is to be considered a work made for hire. Another clause says that I am an independent contractor. So, if I sign, what will my employment status be?

A: I haven’t seen the entire contract, but it sounds like this web site is trying to insure that it will both own the copyright and avoid responsibility for tax withholding, social security and other such obligations of an employer. WMFH is a tricky concept with two meanings under copyright law. It sounds like the contract was patched together by someone confused about copyright but trying to avoid paying a lawyer.

Whenever a contract is internally inconsistent, it could be subject to interpretation by a court if a dispute arises. In this case, I suspect the court would decide that the “employee” language is less significant than the “independent contractor” language. You might suggest that the language be clarified. If it isn’t, however, I don’t see this as being a big problem for you as long as you understand that you are giving up copyright ownership and won’t be getting any employee benefits.

You should be sure to include all income you receive from this website on your taxes, regardless of whether it sends you an IRS Form 1099. The website could come to the attention of the IRS if it has freelancers writing for it exclusively. Companies sometimes try to designate employees as independent contractors in a mistaken effort to avoid the responsibility for payroll taxes and insurance. As long as you are a true freelancer writing for a variety of publications, the IRS is not likely to consider you as an employee.

If you have any doubts about this website and its inconsistent contract, you may want to think twice about taking this assignment. That said, the legal risk to you is slight. The website could face legal problems, but if you keep good records, continue to write for other publications, and declare all of your income, you should be OK. If working for this website becomes a substantial part of your workload or if you think you should be entitled to employee benefits you would be wise to consult a lawyer.