Writers Beware of the Legal Pitfalls — Copyright Basics Part 2

Writers Beware of the Legal Pitfalls is a multi-part series intended as a general educational resource. The last article was the first of three articles on copyright basics. This article will delve into the Work for Hire exception, transfers of ownership, Fair Use, federal documents, and facts and ideas.

Please use this article as an educational resource only, it is not meant to provide legal advice.

What is the Work for Hire Exception?

When someone creates an original work for someone else, (i.e. an employer or commissioned work), the employer or company, the individual who commissions the work owns the copyright and all the rights and benefits that attach. A work for hire must be agreed to by the creator in writing.

Transfers of Ownership

You may transfer ownership of your copyright or any portion of it but it must be in writing to be valid unless it’s a non-exclusive license. Transfers of ownership may be recorded with the U.S. Copyright Office.

Ownership of Copyright vs. Material Object in Which It’s Fixed

It’s different. This means that when, for example, an original painting is sold, it’s the sale of a thing, not the copyright, unless the owner of the copyright and the buyer agree specifically in writing that the copyright is sold together with the tangible object.

Fair Use

This is the limitation on the owner’s exclusive rights. It allows a person to use limited portions of a work, including quotes, for purposes of criticism, commentary, scholarly reports and news reporting. Among the factors to determine “fair use” are the character and purpose of the use (i.e., non-profit, non-commercial, and educational uses are more likely to be seen as “fair” as opposed to commercial gain), the nature of the work copyrighted (i.e., the more creative, the less likely it will be viewed “fair”), the amount and substantiality of the “portion” used in relation to the work as a whole, and the effect the use will have upon the potential value of or market for the work.

Federal Government Docs

Works produced by the U.S. government, any government agency, or person acting in a government capacity are in the public domain. Additionally, the texts of statutes and legal cases from federal or state government are also in the public domain. Note though, that the private contractors working for the government can transfer copyrights to the U.S. government.

Facts & Ideas

You can report the ideas and facts embodied in a web page or in another person’s article. Copyright only protects the expression — the combination of words and structure that expresses the factual information — not the facts themselves.

Next month we’ll address topics particularly interesting to bloggers including the Creative Commons License among other issues. It’ll be the last of the copyright basics before we hit other important topics. By the way, the U.S. Copyright Office has made it particularly easy to copyright your work online. Simply go to www.copyright.gov and follow their step by step instructions.

(C) 2018 Karen Van Den Heuvel