What Is Copyright?
Copyright law protects the works of artists, and prevents others from publishing, profiting from or proffering an original creative work as if it were theirs. The law applies to the works of journalists, authors, scriptwriters, poets, as well as artists, photographers, cinematographers, composers and songwriters, among others. The law also covers manuals, advertisements, catalogues, brochures, and compilations of information.
According to wikipedia: “As soon as a work is ‘fixed’, that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work, and to any derivative works unless and until the author explicitly disclaims them, or until the copyright expires.”
Since 1 January, 1978, the term of copyright for works created by a writer is the life of the writer plus 50 years (70 years in the US). Copyright for “works for hire” expires after 75 years from the date of first publication.
However, it is the actual work that is protected, not the ideas or concepts presented in the work. Ideas and concepts cannot be copyrighted. Similarly, copyright law does not protect facts, inventions, words or names. Inventions are protected by Patent Law. Trademark Law protects words, names and symbols, and trade secrets are protected by Trade Secret Law.
Copyright protection extends beyond the borders of the artist’s country, thanks to The Berne Convention, a treaty signed by 163 countries (by the most recent count in 2007). This means that foreign authors hold the same rights as domestic authors in any country in agreement with the Convention; copyright infringement would be illegal in any of these countries.
How Do You Get Copyright?
Since March 1, 1989, copyright is automatically assigned to the author of a completed work. An author can place the following notice on his or her work: Copyright © 2008, Author’s Name. This notice prevents the defendant from claiming “innocent infringement” in the event of a lawsuit. However, even without this notice, copyright law protects ownership of the work.
The original author always owns the copyright to that work, unless the author signs his/her rights away to a third party.
What Does Copyright Entail?
The rights owned by the author are as follows:
· The Right to Reproduce the Work: the right to copy, imitate, reproduce, duplicate or transcribe the work in fixed form.
· The Right to Derivative Works: the right to modify the work to create a new work. A new work that is based upon an existing work is a “derivative work”.
· The Right to Distribution: the right to distribute the work to the public by sale, rental, lease or lending.
· Public Display Right: the right to show a copy of the work directly to the public (e.g., hanging up a copy of a painting in a public place) or by means of a website, film, slide, or television image at a public place or to transmit it to the public.
· Public Performance Right: This is the right to recite, play, dance, act or show the work at a public place or to transmit it to the public. (Taken from Exclusive Rights from Wikipedia.com)
Each of these usage rights can be negotiated or sold on an individual basis. However, by signing away copyright (All Rights) to a third party, all these rights land in the lap of the third party.
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What Is The Difference Between Copyright And Usage Rights?
Copyright ought to be a straightforward matter: you create it, you own it. Most writers in the UK and US only discuss copyright when issues of infringement or plagiarism are on the table. And rightly so.
Seasoned journalists distinguish between Publication Rights and Copyright, and would be unlikely to relinquish copyright by signing away “All Rights”. They rather negotiate publication rights for one-time publication, one medium, such as Once Off Publication, One State Only, First North American Rights, World Wide Web rights, or the latest addition to contracts – All Rights for All Media that Exist Now or Will Exist in the Future.
In South Africa, up till now, local publishers have largely sidestepped usage negotiations by insisting that journalists sign away full copyright upfront, or simply state on their masthead that they automatically own copyright of the articles they purchase. As the electronic media explodes with new online publications, offering hundreds of potential outlets for re-sales, publishers are increasingly trying to grab copyright, and it is often new writers who are exploited.
Pamela White in her article, “Hold Onto Your Rights”, explains: “Today, publishers and editors are doing their best to maximize their investment in writers. For writers this means that the contract you are likely to be offered will not be in your favor. Publishers are requiring that writers give up more rights for the same money. New writers, in particular, are the big losers since they have less experience in negotiating contracts and less influence when they do try to get the contract changed. Being the loser means that your stream of income from multiple sources for one article will dry up with one take-all-rights contract.”
By implication, journalists who sign away their rights can’t re-sell their own work nor publish their works in books or compilations at a later date. The publishers, on the other hand, can re-publish and re-sell the work in as many different media as they wish, without paying the author for these sales.
Pamela White gives this example: “[Your] amazing article on cleaning octopus for cooking has been bought by Seafood Gourmet magazine. The publisher only signs contracts for All Rights. You figure that there aren’t that many markets to resell this article to and you have bills to pay, so you agree. You get the one check, and lose the right to use your article for any other purpose. You cannot sell it to an anthology, or post it on your website. Ten years from today, you still cannot sell or use that article in any way. The publisher, on the other hand, will now be able to publish the article in his magazine, then post it on the Internet. Next year, your article plus recipes will appear in the annual Best of Seafood Gourmet Recipes, and the publisher can actually sell it to an anthology or another magazine. And yes, the publisher would keep the paycheck. Now think of the extra money you would have earned if you had been able to sell it to that anthology, or a second magazine as a reprint.”
It is standard practice, according to Jenna Glatzer, author of How To Make A Living As A Freelancer, for seasoned journalists to negotiate usage rights for all features that they sell in the US so that they can syndicate their articles.
Can We Syndicate Articles In South Africa?
Yes. Even though our market is much smaller than the UK and US market, and writers must be careful not to re-sell to competing publications, syndication is the right of every journalist who has not physically signed away copyright.
What About Commissioned Work?
If a writer writes a piece within the scope of the writer’s employment, any article written belongs to the employer under a “work for hire” agreement. For instance, if an editor gives the in-house journalist a brief for an article, then copyright of the finished article belongs to the publishing house, unless the journalist’s “work for hire” contract stipulates otherwise (which is highly unlikely).
The laws apply to all the creative fields, and are particularly pertinent to ghostwriters and screenwriters, where more than one party is involved in the creation of the work.
For the freelance journalist who receives a commission, and the editor supplies the idea and a brief, but the journalist creates the piece, the publisher and journalist need to negotiate on who owns Full Rights, and a contract stipulating the agreement needs to be signed.
If a freelancer provides the idea for an article, and is then commissioned to write the piece, the journalist holds copyright, unless the freelancer signed away All Rights in a contract with the publisher. If the freelancer retains copyright, the magazine that accepted the pitch is in effect purchasing once-off usage rights (again, unless the contract stipulates otherwise).
Remember, though, copyright does not extend to ideas, so pitching an idea to a publisher or film-maker does not prevent the idea from being legitimately used and furthered by someone else.
How Can You Make The Most Of Your Copyright RIGHTS?
· Do not blithely sign away All Rights. You are in the position to negotiate, even if you are a newcomer writer. The more local writers insist on negotiating usage rights with a publisher each time they sign a contract, the sooner South African journalists can join the ranks of professional international journalists.
· Local freelance journalists need to specify contractually whether they sign once-off South African Rights, full South African Rights, World Wide Web rights, etc. with each publisher. If you sell First Rights, then the publisher must pay you in addition for all subsequent use of your work.
· Take care to discuss how long you must wait before you can re-sell your piece. E.g. three months? One year? This applies particularly if you have signed Once-Off Rights, which means you can re-sell your piece yourself (or get it syndicated) many times over.
· If you are in a bind over an All Rights clause in a contract, or a “Work for Hire” contract, negotiate a higher payment than the standard R1.80+ per word. This is particularly for the big media houses like Media24 (who own an estimated 65% of publications in SA), and other major houses, like Johnnic Publishing and Touchline Media who push for All Rights contracts.
· Discuss a separate fee for each of the rights you are selling, for each of the media the publisher is likely to use to publish your piece.
· If you need help with a copyright issue, or an unfair contract, contact the committee of SAFREA (Southern African Freelancers Association: www.safrea.co.za) who lobby for reasonable contracts and pay from the media houses.