Short Term Transfers and Reassignments Can Insure
Registration of all Works contained in a Collective Work
In Parts 1 and 2, we discussed the importance of securing proper copyright registration to preserve important statutory remedies for copyright infringement. The need to register works is all the more urgent in the face of looming “orphan works” legislation. This legislation is likely to pass, and even more certain to leave unsuspecting authors in the waste land that once was a constitutionally protected right. Those rights are now the target of technology companies such as Google, who donate millions to the Library of Congress. Large users of copyrighted material on the Internet clamor for free access to copyrighted works, the use of which in turn drives advertising revenues in which authors do not participate.
Authors are under attack from both ends. Parties publishing the works often seek a copyright transfer. Independent contributors are understandably reluctant to do so. However, a failure to memorialize any agreement defining the rights of the parties can adversely affect both parties, including a well intentioned publisher of the collective work.
In our earlier example in Part 2, the agency has a financial interest in making certain the photographs are protected by copyright registration. Those artists and free lance photographers who do not file registrations on a regular basis are at great risk. If an infringement of rights in individual photographs not covered by copyright registrations arises, the agency can do little to enforce rights, since it is not the copyright owner. Without a prior registration the economics of pursuing infringers is likely cost prohibitive for the illustrators and photographers.
What’s a well intentionned publisher and contributing author to do?
Owners of the collective works and visual artists can work together using a contractual scheme to insure that remedies for infringement are preserved, not only for the collective work, but also for the individual contributions. If worded properly, visual artists need not permanently part with their copyrights, and a win-win situation can be created.
The muddled law on this issue requires that the owner of the collective work also be the owner of the individual contributions as of the date of registration, in order for one registration to cover both the collective work and the individual works contained therein. A contractual provision granting ownership to the publisher for a limited term, e.g. three months from the date of first publication, would enable the publisher to lawfully file for the underlying works in its name. In turn, the parties can agree in advance that such rights become non exclusive following the six month period, accompanied by a post written assignment back to the individual author attached. More paper work? Yes, but it beats the alternative, and this approach has been upheld in at least one case.
The statutory remedies of all authors are protected in case of infringement, and the individual contributor maintains long term rights in the individual contribution.
There is an alternative. Freelance visual artists and writers must learn to routinely register their own works separately. They should develop a regular habit of doing so promptly upon publication, or risk becoming orphaned, both under the present law, and even more so under proposed legislation.