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.




Who controls the rights to my books when the publisher is long gone?

February 17, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Collaboration Agreement, IP Law, Intellectual Property, Work Made For Hire

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 wrote two young adult fiction books years ago (in the early eighties) for a flat fee on a work made for hire basis. These two books are long out of print and the publisher is out of business. I have two problems. First, how can I get the rights to these two books back? And second, the contract I signed called for me to write a total of six books under the same terms. The contract also said they were to be my “next” six books. If publisher is out of business can I forget about the other four books? The first publisher was bought out by another publisher and that second publisher has faded from the scene.

A: Let’s talk about your second question first. Since the publisher is no longer in business and never asked you to produce the last four contract books while it was still publishing, it is not possible for you to “perform” on the contract. So this particular contract clause is not enforceable and I wouldn’t worry about it. Even if the first publisher were still in business, if years have gone by without the publisher requesting you to write the next books a court would be reluctant to enforce a contract that unreasonably restrains your right to ply your trade.

As to getting the rights back to your first two books, I would need to examine the contract for “belt and suspenders” language in the work made for hire clause. A contract that simply says the work is considered as a work made for hire is probably not valid. That’s because books (except textbooks) are not among the specific categories qualified as work made for hire under the copyright law as it was substantially revamped effective in 1978. If, on the other hand, the contract says something like “in the event that the Work is ever held not to be a work made for hire, the Author hereby agrees to assign the copyright to the Publisher,” then the original publisher may indeed be the copyright owner. Assuming a lack of belt and suspenders language, the work made for hire language is not valid because your book isn’t a covered category under the law. The next question is if the contract didn’t convey the entire copyright to the publisher, what rights did the publisher acquire? Lawyers don’t agree on this and there are no definitive cases to guide us, so the best we can do is make an educated guess. My guess is that a court called upon to interpret such a contract would construe it in a light least favorable to the publisher and would say that the publisher acquired the right to publish the book, period. Once the book is out of print and the publisher defunct, the rights would naturally revert to the author.

Very often the legal implications of a decision are something of a gamble based on an analysis of the risk. In this case, your risk is pretty low. The publisher who might try to enforce any rights under that contract is long gone, and, even if someone unearthed that old contract and tried to hold you to it, I doubt that the courts could enforce it. So I’d say that you are reasonably safe. The only potential problem I can see is if you try to license those two old books to a new publisher, you might be asked to warrant that the rights are clear. If you decide to try to get those books published, you would be wise to run your new contract past an attorney. In fact, you’d be wise to run any book contract past an attorney or agent.