Monday, April 4, 2011

Newspaper Columns and Copyright

Dear Rich:  I have been writing a column for a local newspaper for the past few months, for which I am not receiving any payment. I want to preserve my copyright in the columns, all of which run under my byline with a distinctive title, but both the printed and online versions carry footnoted language stating that the newspaper owns the copyright. I asked for a written agreement to correct this, but their standard agreement is complicated and asks me to give up rights without establishing my ownership. Since I'm unpaid, I'd rather just go without a written agreement but worry about letting their copyright footer remain. I'm about to launch a blog or Facebook page relating to the column, and want to make my ownership of the column and its title clear.  If you're not an employee of the newspaper and you don't have a written agreement detailing who owns copyright -- either a work made for hire agreement or an assignment -- then you own the copyright in your column, no matter what the notice says. The newspaper must have necessary paperwork to claim ownership and apparently they don't. That doesn't prevent the newspaper from reproducing your column. You've consented to that and the newspaper has an implied license (created by your behavior) to use the material. Could the newspaper argue that you never objected to the notice and therefore, that failure to act prevents you from now claiming copyright? That wouldn't fly because the rules about transferring ownership would trump any such claims. The newspaper needs something in writing.
What about the copyright notice? We haven't seen the notice or its placement in relation to your column but here a few things to consider about notice.

  • Copyright notice is not required to protect a work. Or perhaps we should put it another way: the absence or presence of notice won't harm your ability to claim copyright ownership; 
  • Improper copyright notice may affect the owner's ability to seek maximum damages against someone who claims to be an "innocent infringer."   The newspaper possesses your permission to reproduce the column. So, the newspaper's use of the notice may reflect its claim as to those limited rights -- for example, the newspaper's claim as to its exclusive right of first publication of the column; and 
  • Finally, it's possible that placing a copyright notice may mean that the newspaper is seeking to put the world on notice that it claims a collective works copyright in everything on that newspaper page or in that issue. For example, at many websites, the copyright notice in the footer of the web page is not necessarily claiming ownership on everything on that page, but it is claiming rights in the collection and selection of material (while the individual authors may claim rights in individual contributions).
What does "owning copyright" mean? Okay, so assuming you own copyright in the column, you have the right to reproduce and create derivatives. For example, you could put out a book of your columns or reproduce them at your blog. It also may give you the right to prevent the newspaper from reproducing the material at a secondary site, in print form, or from licensing your column to others.
Crystal ball dept. Can we ask why you are writing the column without payment? We assume its because you get something out of the publication? If what you get is very important, you may want to rethink the whole copyright issue. Yes, it's important to own copyright if you have plans in the future. But if not, you should ask if you really need to own the copyright. You could, for example, grant the newspaper copyright and retain the right to do certain things with the column without having to ask for permission or having to pay the newspaper -- just an idea. Also keep in mind, that in return for some consideration, you can always grant copyright to the newspaper after the fact. Assignments do not have to be contemporaneous with the creation of the work (while some courts have held that work made for hire agreements must precede the creation of the work.)

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