Copyright for copywriters: Who owns your copy?

October 21, 2010 by Dean Rieck
Filed under: Business Smarts 

copyright for copywritersIf you write a novel, it’s clear to everyone who owns the work. You wrote it. You own it.

But if you write a website for an employer or client, who owns the copy?

What we’re talking about here is “copyright.” It’s one area of law that you should understand to protect your interests and avoid unnecessary confrontations with employers and clients.

Obligatory disclaimer: I’m not a lawyer and I don’t pretend to be one. What follows is my admittedly meager understanding of basic copyright principles. You should not consider this legal advice. If you have a legal question about copyright, you should consult with a real lawyer who has attended a real law school (not one on the Internet) and works in an office with rows and rows of impressive leather-bound books.

What is copyright?

Today’s copyright laws are based on the Copyright Act of 1976. This act basically says that the moment you fix your work in a tangible form, whether it’s written, typed, or dictated, your rights are automatically activated.

In other words, when you write something, it becomes your property. It’s the same as a car, couch, or digital camera. It’s yours. You own it. And you can do anything you like with it. But others cannot.

Specifically, copyright grants you a set of rights, including rights for reproduction, distribution, adaptations, performance, and display. These rights apply only to you, the author of the work. If anyone else wants to do anything with your work, you must “transfer” rights to them.

So if you write an article, you are the author of that article and copyright protects your work. If a magazine wants to publish your article, you must grant them the right to reproduce and distribute the article. Being paid for the work doesn’t transfer your rights. And generally, the transfer must be in writing.

If anyone uses your work without your permission, you can sue for compensation for any loss you suffer.

Of course, there are limits on copyright. For example, you do not have copyright protection for ideas or facts. So while copyright protects your written article, it does not protect the idea or the facts in that article. Someone else can write an article on the same topic with the same facts.

Copyright also does not protect words, names, titles, slogans, and short phrases. If you write a book titled “Ribbit: The History of Frogs Part III,” someone else can write a book and give it the same title. If you want to protect things like this, you have to apply for a trademark.

Myths about copyright

You must “register” your work to get copyright protection. No you don’t. It’s automatic. Registering your copyright with the U.S. Copyright Office is optional. You do it only if you want to establish evidence of your ownership.

If there’s no © mark, there’s no copyright. Wrong. The copyright mark is also optional. It’s just a reminder to content thieves that you own the work and they don’t. The most common formula is the mark, followed by the year, followed by the rights you want to retain: © 2010 All rights reserved.

Reprinting a portion of a work is illegal. Nope. It’s called fair use. Generally this means that someone can cite a short portion of your work. So if you write a book, a blogger could cite a few paragraphs in a review.

Copyright is forever. No. In most cases, your copyright lasts for your lifetime plus 50 years. After that, it’s in the public domain.

It’s online, so it’s already in the public domain. Absolutely wrong. If someone tells you this, ask how they would feel if you took their car. After all, it’s parked in a public place, right on the street. Same thing.

You can find more copyright myths here.

Copyright and copywriting

So now we get to the heart of the matter. What about copyright protection for the copy you write for employers or clients?

From what I’ve told you so far, you might think that you have a goldmine on your hands. You’ve written tons of copy and it’s all yours! Mwahaha!

Unfortunately, there’s another concept you need to know. It’s called “work for hire.” And this pretty much obliterates any ownership you have for anything you write on the behalf of your employers or clients.

If you’re an employee, there is an understanding that you are hired to work for the business. So even if you do the writing, the legal “author” of the work is the business, not you.

If you’re a freelancer, the same understanding generally applies. The business hires you to work them. You do the writing, but your client owns the work.

Technically, you could argue that if you do not transfer your authorship rights in writing, you maintain the copyright. And I’ve seen some copywriters try to do this. But if you go this route, you’ll face some series problems.

  • You’ll have to buck the entrenched tradition of work for hire.
  • You’ll need a lawyer to enforce your copyright if an employer or client disagrees with you.
  • You could lose a job over it. Or you could lose clients over it.

I’ve seen some copywriting contracts that seek to retain copyright, but I think this is an unproductive and impractical idea. After all, if you write a brochure about a pressure valve for the XYZ Valve Company, how could you reuse the copy anyway?

There are only two practical ways to retain copyright and profit repeatedly from your copy: creating products for resale and entering into a royalty agreement.

One marketing consultant I know, for example, wrote a sales letter to sell heating and air conditioning systems. He’s not hired to write the letter. He contacts HVAC installers and sells the right to use the letter. Every time a client uses it, he gets paid.

Some businesses who hire copywriters offer royalty arrangements in addition to or in lieu of cash payment for services. So you might write a direct mail package for a financial newsletter, get a check for your services, plus get 2-4 cents per piece mailed. The more successful the package, the more it’s mailed, and the more money you make on royalties.

For more information on copyright, I strongly urge you to get at least one good book on the subject. Here are some books on copyright at Amazon.

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Smart Comments

6 Comments on Copyright for copywriters: Who owns your copy?

  1. D Bnonn Tennant, Information Highwayman on Oct 21st, 2010 6:54 pm
  2. Hey Dean. You’ve got a few errors in there, actually.

    For example, to publish a novel through a traditional publishing house you normally have to give up your ownership of the work. (One reason I haven’t tried publishing a novel through a traditional publishing house!) So, the copyright of just about every novel in your typical bookstore is actually owned by the publisher; not the author.

    More relevantly to us: work for hire does NOT apply to freelancers. I’m not a lawyer, but I do know this for a fact because I’ve discussed it with quite a few other freelancers who’ve had to find out for sure. Work for hire is a very, very specific arrangement which does not apply to freelancing. (If I recall correctly, this is more than just theory; there have been court cases where a client has sued a freelancer for ownership of work, and lost.)

    If a client hires you on a freelance basis to write copy for them, the ownership of that copy automatically falls to you, the writer.

    If a client hires you as a contractor, where you must work certain hours, usually on their own premises (essentially as an “employee without benefits”), then work for hire applies, and the ownership of your work falls to them.

    This is why my contracts always contain a clause explicitly granting the client ownership of my work. I don’t want to own it after I’m done. What if I write a webpage, and someone plagiarizes it later on? Without explicitly granting the client the copyright, I’m responsible for prosecuting!

    Plus, of course, it’s awfully inconvenient to the client if they don’t have full rights of reproduction, alteration etc. Technically they’d have to ask my permission every time they wanted to update their site, use the copy in a PDF or summat…it’s just a hassle.

    Incidentally, I do retain some rights in my contract. I explicitly say that although the client gets the full copyright, I retain the ability to use the work in any way I choose, provided there’s no clear way that it could damage the client. So my contract actually sets up a kind of joint copyright, rather than a full transfer of rights.

    Hope this helps!

  3. Dean Rieck on Oct 21st, 2010 7:31 pm
  4. D Bnonn,
    There is no error. I said that you retain rights unless you transfer them to someone else. In the case of a novel, if your contract calls for giving up your rights, then you have done what I said … transferred your rights in writing.

    I also said that you could make an argument for a freelancer having copyright, but while that may be legally true, it’s impractical and will cost you clients because they need to own the work. It’s generally understood that the client will have copyright. If you choose to pursue it legally, yes, you may win, but what’s the point?

  5. D Bnonn Tennant, Information Highwayman on Oct 21st, 2010 7:36 pm
  6. Hey Dean, fair enough. But I’m not so sure that it’s “generally understood” that the client will have the copyright. I expect it’s generally expected by clients, but I’ve heard of a few cases where freelancers haven’t made that same connection. I guess that’s their mistake, but I think it’s always best to spell it out in writing. Otherwise the client’s “general understanding” is actually legally wrong.

  7. Dean Rieck on Oct 21st, 2010 7:43 pm
  8. D Bnonn,
    I agree, a contract will clarify issues like this. However, I don’t see how it would be a problem unless the freelancer makes an issue of it.

    I’ve worked with over 250 clients and it’s only come up a couple times, when a client asks if he’ll own the copy. And I’ve just said, “yes.” That was that.

    And major clients, like AmEx or Sprint, will always assume copyright whether it’s in your contract or not. There is some legal backing for this, but the cases are deep into the law and over my head. That’s why I wanted to point out that a freelancer should never assume ownership because a copyright is only as strong as the army of lawyers you have.

  9. D Bnonn Tennant, Information Highwayman on Oct 21st, 2010 7:50 pm
  10. Yeah, that’s definitely a good point. For large clients, you don’t want to get into legal hot water, even if you’re in the right!

  11. Constantin on Nov 12th, 2010 5:49 am
  12. I never thought about this. Useful info!