Prof. Jane C. Ginsburg, Columbia Law School
Feb. 19, 2009
I’d like to invite readers to take a tour of a website, www.keepyourcopyrights.org, which the Kernochan Center for Law, Media and the Arts, and the Center for Law and Technology at Columbia Law School have launched in the hope of bringing some power back to the people who create works of authorship. The website’s credo is “a creator forewarned is a creator forearmed.” As the website explains,
Today, too many creators take a passive attitude toward their copyrights. The matter seems complex, and publishers or distributors may tell you that everyone does it their way, or that giving up copyrights is standard practice. But giving up your rights under copyright is a decision, not a default option. If you stand passively by, you may over the course of a long creative career produce a large body of work, most of which is owned and controlled by other people, whose interests and yours may diverge.
The site offers basic information about copyright (with links to more information), and a catalogue of contracts whose rights-granting clauses the site explains in plain English. The site also rates the contracts on a scale of “author-friendly” (signalled with a green thumbs up), “could be worse” (signalled with a yellow thumb in equipoise), “author unfriendly” (indicated by an orange thumbs down), and “incredibly overreaching” (designated by a big red claw).
The contracts are categorized by type of grant and type of creator. The site includes the full contracts, in order to place the granting language in context. There is also a “before and after” section showing the contract language originally proposed, and the final version, after the author pushed back. It is important to recognize that many publishers and other co-contractant exploiters rely on authors’ ignorance or intimidation; but if an informed author requests changes, more often than not, the changes will be accepted.
For example, one national magazine proposed the following contract:
You agree to grant to MAGAZINE all rights in the Works including, but not limited to, all rights, title and interest throughout the world, and the right to procure copyrights in the United States of America and throughout the world, it being agreed that these are works made for hire as that term is defined by the Copyright Act effective January 1, 1976.
The author responded with alternate language, to which the magazine agreed:
You agree to grant to MAGAZINE a non-exclusive license to the Work to exercise any and all of the rights granted by the Copyright Act of the United States and the copyright laws of other countries, not limited to the right to reproduce, display, distribute, sell, and translate the Work throughout the world, in any media now known or later developed.
The magazine still obtains very broad use rights in the work, but the author keeps her copyright (no work for hire, and no grant of “all right, title and interest”), and therefore can allow others to exploit the article (or exploit it herself).
Finally, the site includes a section offering some very pragmatic suggestions about royalty statements. For example:
If you are a professional creator, the provisions in your contract that go to how much you get paid may be the ones you care about most. If you have succeeded in negotiating changes in your contract that will produce more income for you — for example, you increased the percentage of royalties, or you decreased the amount set aside for “reserves for returns” — make sure the changes in the contract are reflected in the royalty statement! If the first version of the contract you were shown was a “standard form,” chances are the royalty statement form is standard, too, and therefore tracks the first version of the contract. If the royalty statement isn’t modified to incorporate the changes made to the contract, then what you actually get paid may not correspond to the terms you negotiated.
The catalogue of contracts on Keepyourcopyrights.org is ever-growing. The site solicits and receives contracts from visitors to the site. Unless the contract has already been publicly disclosed, the names of the parties are removed. The site cannot offer legal advice, but any contracts received are analyzed, paraphrased in plain English, and rated. We hope in this way to help creators retain and better benefit from their copyrights. Moreover, by helping to make copyright work for creators, we hope to assist the “progress of knowledge” to which U.S. copyright aspires.
Comments From Our Readers
Rob Miller: I enjoyed your site.