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Business matters
Contracts and copyright — beyond the basics

Filing a copyright application with the U.S. Copyright Office is easy enough. But understanding what to actually do with a copyright can be much more complicated.

Copyright law grants owners a bundle of exclusive rights that allows them to control the use and distribution of the copyrighted work, including the power to:

• reproduce or copy the work;
• prepare derivative works based on the work;
• distribute copies of the work;
• publicly perform the work; and
• publicly display the work.

Copyright owners can pick and choose which exclusive right they wish to license or transfer to a third party, usually in exchange for payment. For independent journalists, a few specific industry terms are used to identify rights more commonly transferred by freelancers to third parties.

First North American Serial Rights (FNASR)

Traditionally, freelancers writing for newspapers, magazines and other periodicals sell clients a license to “first serial rights” in the work. This grants the client the right to publish the piece for the first time. After the first publication, the freelancer is free to re-sell the piece to another medium or outlet.

First North American Serial Rights, commonly known as FNASR, come with the geographic limitation of North America. This means that while the publishing company may have the right to publish the piece first in North America, the freelancer is free to publish the piece internationally outside of North America.

With the advent of the internet, newspapers and magazines are increasingly publishing pieces on online platforms that are not geographically limited to any particular continent. In fact, publishing companies have recently been claiming that FNASR is not limited to print, but also includes the right to publish on their website. As such, to make sure both parties are on the same page, freelancers should expressly specify whether they intend to grant FNASR print rights, FNASR electronic rights or both.

One-Time Rights

Freelancers can also grant a publisher the non-exclusive right to publish their piece once, but not necessarily first. This way, freelancers can license one-time rights to several publications.

Freelancers granting one-time rights to a web publication should understand that due to the nature of the internet, “one-time” can last for a very long time. This could effectively turn into a grant of perpetual rights. If you intend to limit exposure of the publication to a specific time period, you should specify the time period in the contract. Publication periods of three, six and 12 months are common in the industry.

Second Rights or Reprint Rights

After the first serial rights are sold, freelancers might offer “second rights,” or reprint rights, to a different publication. Second rights are often sold at a much lower price.

Electronic Rights

In a digital age where almost everything is considered “electronic,” freelancers should be careful when broadly licensing electronic rights to publishers. This term makes no distinction among different types of electronic publications. “Electronic rights,” stated broadly, would include the right to publish the piece on a CD-ROM or DVD, to store it in a database such as Lexis-Nexis or Westlaw, and to publish and archive it on the internet. Some publishers even include a catchall stating that they also have the right to publish the piece in any not-yet-invented electronic medium.

If you intend that the publisher only be able to publish the piece on the internet, for example, make that clear in the contract. Similarly, it might be a good idea to specify what types of electronic rights you do not intend to transfer.

Work for Hire

As a full-time reporter working at a publishing company, you might expect that your employer owns all of the work you produce. Independent journalists, on the other hand, likely do not consider the publishing company to be their “employers,” nor do they want to relinquish their entire “bundle of rights” to the publishing company so easily. To make sure this doesn’t happen, pay extra attention to the terms of the contract and whether it contains a “work-made-for-hire” clause.

Under a works-made-for-hire arrangement, work produced by an employee in the scope of his or her employment belongs to the employer. Work produced by a freelancer might also be considered to be a work-made-for-hire if the freelancer expressly agrees to this in writing.

For independent journalists who have agreed to this arrangement, this means that the outlet commissioning the work owns all rights to the copyrighted work. More specifically, the publisher is considered the author of the work. In other words, it’s as if the publishing company came up with the idea itself, created the work on its own and can do whatever it pleases with it. This includes publishing the work without attributing it to the freelancer.

Ideally, freelancers looking to retain more control over their work product should refuse to sign a work-made-for-hire clause or similar “all rights” clauses. Realistically, however, publishing companies are increasingly refusing to work with writers unless they agree to these types of conditions. Instead, freelancers should try to negotiate more payment for these additional contemplated uses in different types of mediums. Or, freelancers could set time limits on the rights granted to the publishing company, with the rights later returning to the freelancer.

U.S. copyright law does not give writers an attribution right. In other words, publishers are not required to mention the writer’s name in connection with the journalistic piece. If you expect your name to be referenced, you should specifically include the right of attribution in your client contracts.

Contributor: Sara Suleiman

The information presented in this article is for general purposes only and does not create any attorney-client relationship. You should contact your attorney to obtain advice for any particular issue or problem. Further, the views set forth in this article contain the personal views of the author and do not necessarily reflect those of Dinsmore and/or its clients.

Resources:

• Sara Suleiman is an associate and intellectual property attorney in the Chicago office of Dinsmore & Shohl LLP.
• For a more basic discussion of copyright law and registration information, see Copyright 101 in the Freelance journalism 101 section.
• A library of sample copyright clauses found in contracts is available from Columbia Law School on the website Keep Your Copyrights. It includes clauses specifically for journalists and is indexed by Type of Creator and Type of Grant.

Last updated: December 2018