I had the pleasure of speaking about the legalities of publishing at Changing Hands Indie Author Conference on February 9, 2013. My session covered the basics of copyright, the importance of registering your copyrights and publishing contracts. I wanted to do a recap of the two types of publishing contracts from a copyright perspective: copyright assignments and copyright licenses.
A copyright is the rights you get in your work. Your rights are created the instant you have an original work of authorship fixed in a tangible medium. As the copyright holder, you have the exclusive right to copy, distribute, display, perform, and make derivative works based on your original work. If you want to let someone publish your work, you need a copyright assignment or a copyright license. This should be a signed contract between the parties and it should be explicit about the rights you’re giving up (if any) and what you will get in return.
When you give someone a copyright assignment, you give them your copyright. When you have a copyright assignment, you do not own your copyright anymore; the other party does. If you publish your work after you assign it to someone, you will be committing copyright infringement, even though you were the original author of the work. Some publishers require you to assign your copyright to them or else they won’t publish your work.
If you give someone a copyright assignment and you later regret the decision, you have to buy your copyright back from them. I know at least one artist who sold the copyright in his work and later purchased it back because it was more lucrative for him to control it.
If you grant someone a copyright license, you retain ownership of your copyright and you give the other party permission to use some or all of your copyright rights. You may grant a publisher the rights to publish your work in print and/or as an ebook but retain the right to create an audio version of your work. J.K. Rowling retained her internet rights to the Harry Potter series when she negotiated her contract with her publishers, which is why she could create Pottermore.
If you license your work, the license should explicit state whether the license is exclusive or non-exclusive, time-limited or perpetual, and clearly state how you will be compensated for granting the other party the license.
Publishing contracts are complicated and it’s best to have a lawyer review the contract before you sign it to ensure you understand what rights you’re giving up and what rights you get to keep. As always, if there’s a portion of a contract that you don’t understand, don’t sign it.
I also created a video this week about the difference between copyright assignments and copyright licenses here.
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18 responses to “Publishing Contracts: Copyright Assignment vs Copyright License”
I would say if this were about 1950 that would be a fair description of the difference between a copyright assignment and a copyright license. But it’s 2013, it’s > 35 years since the passage of the ’76 Act and it’s concepts of divisibility and treatment of exclusive licensees as copyright owners. So your description is a fail.
I’m sorry my post didn’t work for you. The copyright law hasn’t changed much since the 1970’s and this is how the copyright law applies to many people and their work. Perhaps you may be an exception to this.
[…] of public domain. These outlets are a growing problem for parents. These kids never obtained a license or assignments. There is no way it could be in accordance with or could be even considered as fair use. Content of […]
[…] Make sure you understand the difference between a copyright assignment and a copyright license. In the former, you give away your copyright rights; in the latter you retain copyright ownership […]
I have one question with respect to licencing or assignment, with respect to recent controversy which has been happening in India about the book “The Hindus: An Alternative History,due to objections raised by the Hindu Fundamentalist lobbies about the contents of book, Penguin decided not to publish the books in India, and not only that it decided to pulp rest of the books from Indian market.
In this case, can Wendi Deniger, the author of the book, withdrawn all the rights which has been granted on the penguin?, as it is clear that the assignee/licensee is not properly exercising the rights which are conferred on him. I would like to know your perspective on this issue, and not only that I would request you to explain the ways by which penguin can be forced to publish the book, or what are the ways by which rights which has been conferred on penguin can be taken away so that book can be made available to public at large.
Hmm…that’s an interesting situation and it probably comes down to how the contract was written. There may be a provision about what happens if there is a market the publisher doesn’t want to enter or if/when any rights can revert to the author. Or it may be a situation where the author had to assign her copyright to the publisher to get published and the publisher can do whatever they want with it and the author can’t stop them.
Thank you so much for your response.
I have one more question with respect to the said factual problem, Can the Penguin be forced to distribute its assigned rights to other publishers by method of compulsory licencing? Is there any time period in copyright for filing compulsory licencing like patent law?
Not that I know of. The copyright and patent laws are very different.
My question is rather unique: assuming that the contract does not use the words “license” or “assignment,” and merely says something to the effect of “title of the work shall remain in the artist’s possession until he is paid in part or in whole,” is this explicit enough to constitute an assignment clause or a licensing agreement? Also, assuming it does constitute a valid assignment clause or licensing agreement, will it still be valid if the contract is breached?
You need to have a copyright lawyer evaluate the contract to get valid answers to your questions.
This was a really succinct Article that gave me a great insight into the areas of copyright. I have worked as a writer for the past 8 years creating text for business websites and business marketing blogs. I have never used terms and conditions before and never really gone into any great depth with clients as to what they can and can’t do. I want to create terms and conditions that would state that an article for instance can be used for a website blog are abut it could not then be used in an ebook they put together. Is this something I could point out in terms and conditions. also i would rather make it an assignment when they want me to ghostwrite (and therefore mean a higher payment). doe sit seem reasonable to apply these to terms and conditions.
thank you for you thoughts
I think in this type of situation, I’d have information in the terms and conditions about how people can contact you with requests to use posts and to inquire about hiring you as a ghostwriter. It would be easier to keep track of who is using your work and you could have a separate contract for licenses and assignments between you and whomever hires you.
Than you for your prompt reply Ruth.
One thing though if I am ghostwriting an article (the work appears under their name) for someone am I necessarily creating a copyright assignment agreement. In other words am I passing over my copyright by default?
It’s actually the opposite – http://carterlawaz.com/2014/10/who-really-owns-your-content/.
Unless you have a written contract that states otherwise, when you’re an independent contractor, you retain copyright in what you create. The company that hired you only has an implied license.
Thank you again Ruth.
I am now going to create a fundamental contract.
Please what is the difference and/or disadvantage between copyright transfer agreement and exclusive licensing agreement. I heard the exclusive agreement gives the publisher the right but not the obligation to defend the work against improper use by third parties”.
Which is better? Kindly advise.
CASE 1: Author Rights
For open access publishing, this journal uses a copyright transfer agreement. Authors will transfer copyright to the publisher, but will have the right to reuse the article on the terms of their selected end user license, as well as certain scholarly usage rights.
CASE 2: Author Rights
For open access publishing, this journal uses an exclusive licensing agreement. Authors will retain copyright but license exclusive rights in their article to the publisher. Authors have the right to share their article in the same ways permitted to third parties under the relevant user license, as well as certain scholarly usage rights.
These situations often come down to the totality of the circumstances. The main difference between is a license and an assignment is who owns the copyright, but there may be other terms in the agreement about infringement and reversion of rights to be considered.
[…] how the rule works: 35 years after the copyright assignment or license was granted or 35 years after the work was published, the author(s) can send notice to terminate […]