When the Writer Isn't the Author

"I wrote it, so I get the copyright. Don't I?"

Usually, but not always.

The author receives the copyright, but the author and the writer aren't always the same person.

I see that puzzled look on your face, so let me explain.

Federal law gives the copyright to the author. In most cases, the person who wrote the manuscript is the author. But the definition changes if the material is what copyright law calls a "work made for hire.”*

So what is a work-for-hire? The law creates two categories. The first is simply "a work prepared by an employee within the scope of his or her employment." If you are a staff journalist writing articles for the newspaper that employs you, those articles are works-for-hire. You may be the writer, but your employer is the author for copyright purposes.

How you label your relationship doesn't matter. If you are billed as a "freelance correspondent" or an "independent contractor" but are required to work a certain number of hours every week and are paid for vacations and sick days, you are probably an employee rather than an independent contractor. It isn't always easy to draw the line, but the more you look like a traditional employee, the more likely it is that the writing you do as part of that relationship is work-for-hire.

You don't have to be an employee to create a work-for-hire, however. That's because there is a second category for certain commissioned works.

To determine if a work fits into this second category, ask yourself the following three questions. If you answer "yes" to all of them, it is a work-for-hire and the person who commissioned it is the author. If even one answer is "no," as the writer you are also the author.

1. Was the work specially ordered or commissioned? In other words, did someone ask you to write it? If you did the work on assignment, it may be a work-for-hire. If you wrote it on your own initiative and followed a normal submission process, it is not.

2.  Was it created "for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas"? Magazines and newspapers are collective works. A novel is not a collective work, but a single book containing four novellas is.

3. Have the parties signed a written agreement saying it is a work-for-hire?

If the material is a work-for-hire (either because you are an employee or because you answered all three questions in the affirmative), does that mean you can't use it? The answer depends on your agreement with the legal author. Your employer may let you republish the material for certain purposes or under certain conditions, but ALWAYS get it in writing. The same is true for a commissioned work. See what you can negotiate, and put it in writing.

Should you enter into a work-for-hire arrangement? Weigh what you get out of it against what you give up and make your own call.

But don't assume you own it just because you wrote it.

Kathryn Page Camp

* See 17 U.S.C. 101 and 17 U.S.C. 201(b).