May 7, 2010
You Know A "Derivative Work" When You See One
You Know A "Derivative Work" When You See One Cliff Ennico www.creators.com "I am a public relations consultant who works out of his home. To promote my firm, I have written several articles for my local business weekly newspaper, without charge, and posted them on my Website. Well, I must be doing a pretty good job at these, because a regional business magazine contacted me and asked me if they could reprint one of my articles in the magazine for $250. I said 'sure', of course, but then they hit me with a 10 page contract they want me to sign. It looks pretty harmless overall, but there's a clause in there that says I'm assigning to them all of my rights to this article and any 'derivative works'. Does that mean I can't write on this topic ever again? I would love the free publicity this article would provide, but I'm not willing to put limits on my writing activities for a mere $250." Whenever you look to publish an article or book with an established publisher, they will want you to sign their standard "publishing contract". Generally, you should not sign these without having your lawyer look at them first (most lawyers will do less for less than one hour of their time if you ask nicely), but in this case the fee you are being paid is so small it probably isn't worth bringing an attorney on board. Generally, when you write an article or any other "original work", you own the copyright to it from the moment it is created, even though you don't "register" your copyright with the Library of Congress in Washington. The only way you can lose that copyright is to sell or assign it to someone else. So in this case, even though your articles appeared in the local business newspaper, the copyright is yours and no one can reprint it without your permission (for which, of course, you will charge a fee). Most publishers will want you to "assign" your copyright to them in the contract. What the publisher doesn't want is to publish your article and pay you for it, only to have you then turn around and sell the same article to other publishers. When you think about it, that's a pretty legitimate concern, and the publisher is unlikely to strike the "assignment of rights" clause if you ask them to. If the publisher's contract requires you to assign your copyright to "the Work" (usually a defined term in the contract), you should look at the definition of "Work" very carefully. Usually, it refers only to the article you are submitting. You are not prohibited from writing articles on similar topics, or from taking pieces of your article and using them elsewhere, as long as you don't take the article verbatim, word for word, and sell it to someone else. When I negotiate publishing contracts, though, I always add a sentence clarifying that you may "copy or reprint the article, either in written or electronic form, and use it solely for promotional purposes." That way you can put the article up on your Website, along with the wonderful tagline "reprinted with permission of XXX magazine". In your contract, however, the definition of "Work" is slightly broader, and includes not only the article you are submitting to the magazine for publication, but also "derivative works" of that article. The term "derivative work" is defined in the federal copyright laws as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." Not exactly a model of clarity, is it? A "derivative work" is a bit like the famous U.S. Supreme Court judge's description of pornography: you can't define it precisely, but you know it when you see it. Common sense will rule the day here. If the magazine publishes your article, and you change just a few words and sell it to another publisher, the magazine is likely to look at that as a "derivative work" of your article, and will be very upset. Likewise, if you read your article word for word into an audio recorder and post it as an "audio clip" on your Website, that is probably also a "derivative work". Generally, however, another article on the same topic - using entirely different words than your published article - will not be a "derivative work" and the magazine will have no rights to it, as under the copyright laws it will be considered a separate, "original" work. Likewise, taking just one paragraph from your article and including it in another, original article on the same topic, should not get you into hot water with your publisher. Still, since this is only going to be a one-time publication in the magazine, I would ask the publisher either (1) to clarify in writing that other works on the same general topic will not be considered "derivative works" under the contract, or (2) to make the assignment of copyright "nonexclusive" six months after the article appears in print in the magazine. That way, the publisher has the right to control publication that they want, while you have the peace of mind that you need. Cliff Ennico ( cennico@legalcareer.com ) is a syndicated columnist, author and host of the PBS television series 'Money Hunt'. His latest book is 'Small Business Survival Guide' (Adams Media, $12.95). This column is no substitute for legal, tax or financial advice, which can be furnished only by a qualified professional licensed in your state. To find out more about Cliff Ennico and other Creators Syndicate writers and cartoonists, visit our Web page at www.creators.com . COPYRIGHT 2006 CLIFFORD R. ENNICO. DISTRIBUTED BY CREATORS SYNDICATE, INC. Permission granted for use on DrLaura.com.

Posted by Staff at 1:48 AM