in North America, unless you sign away your rights, you own your article.
There are different degrees of signing away rights. Below is the unofficial
bible for writers, the ASJA's (for more on them, see the 'Clubs' section
of this website) Rights 101.
Writers Should Know About All-Rights and Work-Made-For-Hire
paper from the American Society of Journalists and Authors prepared by
the ASJA Contracts Committee April 29, 2003
and "work made for hire" - these contract terms sound simple enough. But
what does it really mean when writers sign contracts containing them?
Bottom line: in most cases, work-made-for-hire and all-rights contracts
are a rotten deal for writers. If publishers want additional rights beyond
first print rights -- exclusive or non-exclusive -- they should pay for
them. If publishers want "all rights," they should pay a substantial premium
or be willing to share with the author any additional income they get
from sublicensing. Writers offered all rights or work-for-hire contracts
in any form should ask that contract terms be modified to make them more
acceptable. They should demand a substantial compensatory premium whenever
waiving control of subsidiary rights.
terms publishers offer often confuse writers. Here's a primer on the difference
between "first North American serial rights," "all rights," "non-exclusive
[all] rights" and "work-made-for-hire" and their practical implications
NORTH AMERICAN SERIAL RIGHTS
as the mid-1980s, most periodical publishers sought only "first North
American serial rights" (FNASR) from the writer. Under a FNASR contract,
the publisher licenses a one-time right to publish the article first in
the North American market. The author retains all other rights to his
work, including the right to re-license its use as a reprint ("second
serial rights"), to publish it in foreign markets, to license a movie
or product spin-off, and so on. Recently, however, publishers have begun
asking for more rights (usually for the same amount of money).
When a writer
signs over "all rights" to his literary work, he is essentially conveying
the entire bundle of rights that makes up his copyright plus any common
law rights he may have in the work. Whether the writer has effectively
transferred his "copyright" is open to debate
and may depend on the contract's actual wording. But clearly the ESSENCE
of his copyright -- the bundle of rights copyright represents -- is gone.)
away "all rights," the writer gives up the right to re-license his work
to a reprint magazine, foreign periodical, electronic database, anthology,
or business publication, for example, or to re-use the work in a future
book. For many writers, subsidiary rights like these represent a considerable
annual source of revenue. The Internet, where content is king, has also
substantially expanded resale possibilities. Signing an "all-rights" contract
(or its equivalent) hands that income over to the publisher.
RIGHTS" AND OTHER VARIATIONS ON THE ALL-RIGHTS THEME
less blatant as a rights-grab than "all rights" contracts, "first right
to publish" or "non-exclusive" agreements can achieve virtually the same
result for publishers via the back door. These agreements often begin
with a benign-sounding FNASR clause and then tack on extremely broad (though
"non-exclusive") rights to use a writer's work in perpetuity in various
media. The writer may still technically own the property, but the publisher
may continue to re-use the work whenever it wishes -- for no additional
"non-exclusive rights" to a publisher may sound less onerous to a writer
than signing an all-rights or WMFH agreement, but the apparent safeguard
may be deceptive. These non-exclusive rights clauses may also allow publishers
to profit from the work through their own network of sister publications,
syndication contacts, and resale markets without sharing that income with
the author. The loss of potential income can be substantial. Think about
the size of the potential market among corporate purchasers, for example.
(How would you feel if Microsoft buys 10,000 reprints?) How would you
feel if the article for which you sold all rights later becomes a film?
(Think "Saturday Night Fever.") And if you plan to include your article
"Why Eating Chocolate Makes You Live Longer" in your book "Surprising
Foods That Keep You Healthy," do you want your article to become part
of a competitive nutrition book the magazine throws together?
As if all-rights
contracts weren't onerous enough, "work made for hire" (WMFH) contracts
have been jokingly called "all-rights contracts on steroids." But WMFH
(sometimes called "work for hire") is no laughing matter.
owes its existence to a lengthy definition in the Copyright Act (17 U.S.C.
Sec. 101 and 201(b)). Under this definition, as one might expect, writings
produced by an employee in the scope of his or her employment belong to
the employer. In addition to employee-created works, certain works produced
by independent contractors may also be WMFH if the parties expressly agree
in a written instrument that the works are "work made for hire." But not
all types of work by independent contractors will qualify. The work must
be "specially ordered or commissioned" as:
a contribution to a collective work,
- a part of
a motion picture or other audiovisual work,
- a translation,
- a supplementary
work [to another author's work, such as a foreword, chart, or table],
- a compilation,
- an instructional
- a test,
- answer material
for a test, or
- an atlas.
(A tenth category,
"a sound recording," was briefly added and then quickly removed from the
statute after intensive lobbying by recording artists.)
a big payoff here for publishers: When a "work made for hire" agreement
is entered into for a work in one of these nine "magic" categories, the
company or individual COMMISSIONING the work (and not the independent
contractor) is deemed to be the "creator" of the work -- and is entitled
to copyright protection from the moment the work is created. (But remember:
just because a work falls into a qualifying category doesn't mean a writer
must agree to write it as WMFH).
ways, "all rights" contracts and WMFH agreements are roughly equivalent:
both cede a broad array of important rights, and both can deprive writers
of valuable sources of income. But there are some differences between
wrote that article or textbook. But if you've signed a valid WMFH agreement,
you're not its legal "author." From the instant of its creation, the employer
or publisher who commissioned the work is considered its creator. You
won't be able to resell the work in other markets -- and won't be entitled
to benefit if the publisher resells it. You can't syndicate the material
or even put it on your own web site without the publisher's permission.
A WMFH deal
thus relegates the writer to the status of an employee, minus the usual
"perks" of employment such as health insurance, Social Security contributions,
retirement plans, and paid vacations. (And to ensure they reap all the
benefits without any of the costs, some publishers underscore the freelance
writer's status as an independent contractor, with language such as: "The
writer is an independent contractor and nothing contained herein shall
create or be construed as creating any other relationship between the
must be in writing and signed by both parties. But despite the apparent
clarity of the statutory list of nine categories, determining whether
a particular work can actually be the subject of a work-made-for-hire
agreement is sometimes difficult, and the answer may not be clear-cut.
Photographs or paintings, for example -- neither of which is expressly
mentioned -- are often commissioned as WMFH under the (arguable) assumption
that they qualify as part of such "collective works" as newspapers, magazines,
company catalogues, advertising materials, and annual reports. Software
is also not expressly mentioned but some regard it as a collective work
for which WMFH treatment is available. In general, determining whether
a commissioned work is eligible for WMFH treatment will require considering
both the nature of the work and the context of its intended use.
a work clearly fits one of the nine statutory categories, WMFH treatment
is not possible unless the work was "specially ordered or commissioned."
In other words, a WMFH agreement cannot cover pre-existing work. (Court
decisions have been divided about whether the WMFH agreement must actually
be reduced to writing before the work is completed. One Circuit Court
accepted as sufficient a post-creation written agreement confirming an
earlier oral or implied WMFH agreement. But other federal courts have
required that the written agreement precede creation of the work.)
SIGNED A "WMFH" CONTRACT FOR A WORK THAT "CAN'T" BE WMFH, IS YOUR CONTRACT
books and other works that do not appear on the laundry list of categories?
If you've signed a WMFH contract to create such apparently non-qualifying
work, is it valid? This is a difficult question to answer.
before dismissing a contract as "void" or "unenforceable." Remember that
several of the statutory categories are broadly defined. Ultimately, a
contract's validity is something that a court must determine, and courts
often stretch to enforce the parties' underlying intent even where a contract
contains some technical defect. Circumstances and contract language vary
widely, so we urge writers facing this problem to speak with a good copyright
attorney for legal advice.
too, that many publishing contracts now contain what lawyers call "belt-and-suspenders"
language. To cover the possibility that WMFH status may not be upheld
by a court, many book and magazine publishers now routinely include a
back-up "all-rights" clause as well, such as: "If a court determines that
this agreement does not provide for the creation of a work made for hire,
then you agree to give [the Publisher] exclusive publication rights in
and to your work, as well as the exclusive rights...including electronic
rights, including any derivative works created therefrom, in any manner
or medium throughout the world in perpetuity without additional compensation."
Under contracts with such "belt-and-suspenders" language, the writer may
well be deemed to have transferred "all rights," even if WMFH treatment
does not apply.
BETWEEN "ALL RIGHTS" AND WMFH: COPYRIGHT TERM AND REVERSIONS
as "all rights" and WMFH may sound in their dismal practical effects on
the writer, there are other distinctions between them, involving copyright
term and the right to a reversion. Let's begin with the differences in
works created after January 1, 1978, copyright protection extends for
the author's lifetime plus 70 years. For works made for hire, however
(where a business entity is often deemed the "author"), tying the term
to a human lifespan is not practical. So instead the Copyright Act calculates
the copyright term for a WMFH creation by a different formula: 95 years
from the date the WMFH work is first published, or 120 years from the
work's creation, whichever is shorter. 17 USC Sec. 302(c).
also differences in what are known as "reversionary rights." Copyright
law allows an author who transfers his copyright to unilaterally terminate
that transfer between the 35th and 40th year following the agreement.
(Section 203 of the Copyright Act spells out the steps that must be taken
to exercise this termination right). Arguably, this provides potential
recourse for a writer who sold "all rights" in a work that later becomes
a long-term bestseller. (We say "arguably" because the writer would still
have to prove that his "all rights" contract constituted a "copyright
transfer" for purposes of the reversion statute -- a point the publisher
on the other hand, "are forever"; the writer has no such reversionary
right that might allow him to terminate the transfer and recover copyright
-- in fact, under the work made for hire statute, he never had a copyright
in the work to begin with. If your work turns out to be exceptionally
profitable or marketable many years down the line, a right to recover
the copyright MAY indeed prove valuable. Another important reason to avoid
ESCALATING RIGHTS BATTLE
most knowledgeable freelance journalists have typically refused to sign
work-made-for-hire (WMFH) or all-rights contracts, except for a few situations
where potential re-use of material was limited (technical publications,
trade magazines, and some corporate writing applications, for example).
The consensus was that publishers who demanded such inequitable terms
would lose the services of high-level professional writers and would be
forced to rely on less capable contributors.
By the mid-1990s,
newspaper and magazine publishers started getting more sophisticated about
rights -- and grabbier. Many adopted a two-contracts gambit, initially
sending an onerous all-rights contract but keeping a more writer-friendly
FNASR version waiting in the wings for writers knowledgeable enough to
advent of the Internet, rights struggles took on both new meaning and
new intensity. Publishers were quick to discover that Internet content
had value -- and slow to offer to pay writers an extra fee for using their
material in this new medium (despite happily charging advertisers separately
for print and Web advertising). Some publishers tried to claim that FNASR
print contracts gave them the right to reproduce the same content on the
web and in electronic databases.
2001, the U.S. Supreme Court -- in a landmark victory for writers -- held
otherwise. The Court in Tasini v. New York Times et al. found that publishers
exceeded their print rights and infringed freelancers' copyrights by posting
articles in electronic databases.
though it was as a victory for freelancers, the Tasini case was just the
first skirmish in a rapidly escalating rights war. To preempt future Tasini-like
claims, publishers simply demanded even more rights from writers right
up front -- and not just electronic rights. An increasing number of publishers
now refuse to work with writers unless they sign away all rights or agree
to WMFH contracts (even when the work may not fit the statutory definition
of WMFH). Some contracts even demand rights to use the material in "any
media that may be invented in the future, anywhere in the universe."
once-standard FNASR contract is looking more and more like an endangered
species. Given the current publishing climate, demands for WMFH, "all
rights," and similar contract terms can be expected to proliferate. Music
composers, photographers, graphic artists, writers, and other creators
and independent contractors have mounted vigorous opposition to excessive
rights demands. Writers must take a similar stand and must educate themselves
about what such contract terms really mean.
YOU SIGN? POSSIBLE RESPONSES
other writers' organizations, ASJA has long taken a firm stance against
most WMFH or all-rights agreements, especially for independent journalism.
ASJA reiterates its fundamental opposition to all-rights and WMFH contracts
where such contracts seek to separate writers from the fruits of their
creations without appropriate compensation. Publishers' attempts to obtain
all rights retroactively (especially without additional payment) are particularly
a very few situations do we acknowledge that such arrangements may be
acceptable: a book "written to order" as a promotional vehicle for a company
and/or its products, for example (works in which the publisher has a distinct
proprietary interest ñ and we express no opinion here about whether such
materials would meet the statutory test for WMFH.) or certain kinds of
corporate writing (such as technical and users' manuals, corporate press
releases, or marketing materials, when the writer can foresee little or
no potential re-use for the material). But norms vary even for corporate
work. Some creative firms and agencies routinely retain rights to material
created for clients, for example -- and derive significant ongoing revenue
by licensing re-use of the material by the client.
money, what else do you stand to lose? All-rights and WMFH contracts also
put decisions about where an article will (and won't) appear beyond a
writer's control. One ASJA member who accepted WMFH contracts at a now-defunct
consumer magazine, for example, unhappily discovered her articles on multiple
web sites. Another member found his article gracing a porno site. Still
another writer, eager for a prestigious clip from a large women's magazine,
accepted an all-rights agreement and later was refused permission to post
her own article as a writing sample on her personal web site. A bad thing
for the writers involved? Sure. But signing away their rights left these
writers with little recourse.
are presented with a publishing contract that includes an all-rights or
work-made-for-hire clause, here are several possible responses:
FIRST NORTH AMERICAN SERIAL RIGHTS (FNASR) CONTRACT TERMS INSTEAD.
Point out that most major writers' organizations strongly oppose all-rights
contracts as unfair to writers and condemn attempts to coerce writers
into accepting such terms as a condition of assignment, payment, or publication.
Request a simple FNASR contract instead. (And watch out for attempts to
tack on additional "non-exclusive" rights.)
ADDITIONAL PAYMENT FOR ADDITIONAL USES. If a publisher insists that
it needs more than one-time use in print (FNASR), ask that it specify
what rights the publication TRULY needs. If the publisher plans to post
the article on its web site, for example, acknowledge that the Tasini
decision made publishers more anxious to nail down electronic rights,
and offer to separately negotiate electronic rights for an additional
fee. (For example, one writer who makes a substantial yearly income selling
web rights to his out-of-print books makes a distinction between readable
rights and downloadable rights. He licenses these rights separately, charging
a yearly fee, granting rights for 3 years at a time, and getting his payment
the publisher anticipates possible reprint, syndication, and/or other
reuses in the future, offer to negotiate rights for such re-uses when
and if re-use needs arise, or specify in advance the additional fees payable
for each specific re-use of the material.
A TIME LIMIT ON RIGHTS. Instead of a WMFH or blanket all-rights contract,
suggest a LIMITED all-rights contract, with rights reverting to the author
at the end of an agreed-upon period. (Syndication agreements, for example,
customarily specify a one-year term.)
HIGHER PAYMENT. None of the previous suggestions has worked, but you're
not quite ready to walk away from the bargaining table? If a publisher's
desire for WMFH or all-rights terms is truly non-negotiable, demand substantially
better compensation. Remind the publisher that freelance arrangements
save them the commitment and expense of ongoing employee salaries, benefits,
office space and equipment -- costs that freelancers must cover for themselves.
"Reasonable" remuneration under an all-rights contract or its equivalent
should not only compensate the writer for his current effort and loss
of future income from the (often significant) lost potential for future
income from the work, but should also reflect the risks and overhead the
writer bears as part of his freelance status.
all writers who feel they are signing away rights under duress to keep
a paper trail, documenting their attempts to negotiate more favorable
terms and the publisher's responses.
American Society of Journalists & Authors
The American Society of Journalists and Authors encourages reproduction
and distribution of this document for the benefit of freelance writers,
but please credit ASJA for the information and do not change the content.