----- Original Message -----
Sent: Wednesday, October 19, 2005 4:30
PM
Subject: Re: file share vs tape as gift -
Artist/writers Contracts
>>>For
visual artists, you should check out the contracts. Recently
there was a
post on the National Press Photographers list about the
job listings on
journalismjobs.com. Entry level salaries are around
$25K and when you go
to work for one of those companies you give up
your copyright to
everything you ever do on company time. And some
companies try to get what
you do off company time as well even with
your own
equipment.>>>
These contracts are
often called "Work For Hire" contracts. It is a complicated issue because
there are (or can be) contract terms tied to terms and conditions in other
contracts. I have read contracts written by amateurs filled with terms that
are absolutely unenforceable. I once signed a whopper of a contract. It was
for a semiconductor manufacturer and was forty plus pages long. It was part
WFH and part non-disclosure. I have been given twenty page contracts for
fillers and half page contracts for large features.
I sign what often
amounts to a WFH contract every month but I have no complaints because what I
write is specialized and not destined for public consumption. Some very large
publishing conglomerates force the hapless freelance writer to sign "all
Rights" contracts and it is a very bad thing. Time Warner is one such company
and they own more than forty popular magazines. TW also demands that the
freelancers they buy from sign a WFH contract or suffer permanent banishment.
If I am writing for
a magazine, I would never sign a WFH contract; in doing so, I lose the ability
to resell the piece over and over again. WFH contracts are a growing problem
and most legitimate writer’s organizations decry them. The writer/photographer
should always carefully consider what rights they want to give away. Always
read your contracts, folks.
In many cases, and
if we are talking about employees employed by a company, the employee is not
giving up their copyright because they do not always own any rights to what
they create. There are many factors to consider. Your employment contract or
the company handbook might specifically address these issues.
If you borrow a
camera or a laptop, better make sure that you are able to use them freely.
Have there been cases won by a corporation laying claim to work produced off
company time? What if Harry Potter was written on a corporate asset? Is it so
hard to believe that the company would not try to get a piece of a
billion-dollar "business?" A silly and rather outlandish example, but we live
in silly and outrageous times.
The problem also
extends to those that develop a new business using company assets. The company
could claim some rights because the business was developed using corporate
resources.
What bothers me is
the idea that a company (might) own what you produce off company time. I am
not sure that is supported by case law. Can you point to some example cases?
Did they hold up on appeal?
I simply do not
believe it. How can any company lay claim to your efforts if you produce the
work on your own time, at home, and using your own computer equipment?
Certainly, they can claim anything they want, but I seriously doubt the case
will stand appeal if you lose or end up in court in the first place. If it
does, we are all in serious trouble.
About all I can
think of is the company could claim that you used research compiled for a
similar project to complete your project. If you spend weeks researching
something on the corporations dime, the company might insist upon "ownership"
of the research. Then again, I can think of several reasons why they might not
be able to assert any such ownership or rights.
I understand their
"ownership" of your work if it was produced on company time using corporate
resources. I still have a document issued to me, at my request, by my old
employer. It cleared up the questions of who owns what if I produce it on a
company owned asset, but on my time.
At the time, I was
working on a "Blank for Idiots/Dummy’s Guide" sort of book for a product yet
to be released. Ultimately, it became a wildly successful product. Some of the
people here likely have owned several examples. My concern was who owns the
work. There were trade secrets issues as well, so the lawyers got involved and
they gave me a document.
Magazines
(generally) purchase what is known as "First North American Serial Rights" and
nothing more. These rights simply say the publication has the right to publish
the work first. Unless the writer is a dummy, he or she will never give up all
rights.
The copyright law
specifically calls attention to WFH contract provisions and there are special
rules for their use. For example, if you write an article or take a picture
for a publication, the publication can not later claim the work was made "for
hire" unless you signed such a contract. Generally speaking, a publication
owns FNASR and nothing else.
The copyright office
says, "if the parties expressly agree in a written instrument signed by them
that the work shall be considered a work made for hire...." With the web,
publishers seem to want more and more. Then again, publishers will always try
to get everything they can just as they always have in the past.
Bob
…
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