One of the automatic perks you receive when your creative work is fixed in a tangible form of expression is a bundle of exclusive rights, courtesy of the U.S. copyright laws. A copyright provides the owner the exclusive rights to reproduce the work, distribute copies of the work, prepare derivative works based on the work, and publicly perform and display the work. The copyright owner, and only the copyright owner, has the right to use those exclusive rights unless a copyright transfer or permission has been granted to someone else.
Any or all of the copyright owner’s exclusive rights, or parts thereof, can be transferred. A transfer must be in writing and signed by the copyright owner or owner of the rights being conveyed (whereas permissions can be given orally or in writing, although as I noted last week, in writing is a better practice; see my permissions article for more information).
There are two mechanisms to grant a transfer of a copyright owner’s exclusive rights – an assignment or a license.
- An assignment is a complete transfer of all the rights in a copyright.
- A license is a partial transfer of rights in a copyright and can be exclusive or non-exclusive. These rights can be divided and subdivided in various ways like by language, media (e.g., print, digital, film, or audio), time, and territory. An exclusive license means only the named licensee can exploit the granted rights. A non-exclusive license means the named licensee can exploit the granted rights, as well as anyone else who has permission from the copyright owner. Because more than one person can use the same rights at the same time, a non-exclusive license does not transfer rights like an assignment or exclusive license. Usually, non-exclusive copyright licenses are known as copyright permissions (see last week’s post for more information).
If you are traditionally published or published by a small press, then your publishing agreement most likely transferred certain exclusive rights in your copyright to your publisher. It is why the publisher pays you money—for the exclusive right to reproduce and distribute your book. Note, however, that no reputable publisher will ask you to assign all the exclusive rights in your copyright (aka, a copyright grab). Nor should the copyright be registered in anyone’s name but your own.
If you are self-published, then you retained your exclusive rights granted by your copyright, and can grant licenses to those of your choosing, like a film or audio company, or maybe foreign publishers.
But what about the cover art you used for your self-published book? Or that artwork you included? Or those charts and figures in your book? Or your author photo? Or the back cover design? Do you own the copyright in that creative work? If you used a work-for-hire agreement when having the cover or some other creative work created for your book, then you are ahead of the game and already own the copyright. If not, then you should lock down the copyrights in those creative works, either by an assignment or exclusive license.
There are plenty of copyright assignment templates on-line. Here are the links to a few (CopyLaw, FindForms). Or you can use the one I have included below. If you are assigning your rights under a copyright, or you want an artist or freelancer to assign their rights to you, use a form that transfers all the exclusive rights. Make sure the creative work and rights being transferred are clearly defined in the assignment. Have the agreement notarized.
Licenses can be more complicated. Consult a qualified attorney instead of using a form, unless you clearly understand the terms and conditions of the contract, including which exclusive rights are being transferred and which are being retained. Often exclusive rights under a copyright are divided and subdivided in various ways, so the grant of rights can be confusing. Maybe the division is based on the type of media used to reproduce a book (print, film, audio). Maybe the division carves out territories (like you want English-speaking countries, and your foreign publishers get the remainder of the world). Maybe there are time restrictions too. Whatever the divisions of rights, do yourself a favor and have a lawyer guide you through the grant of rights should you need to sign an exclusive license agreement.
You can register the assignment or exclusive license with the copyright office. This provides various benefits, like establishing a public record of your rights, constructive notice to others of the rights transferred, as well as priority in the transferred rights should a dishonest copyright owner attempt to sell the same rights to someone else at a later date. There is a fee for recordation. You can find out more about recordation here.
Whatever type of agreement you need for your particular circumstances, have at least three copies signed—one for you, one for the other party, and one for filing with the Copyright Office.
Moral rights include a set of rights that extend from you. I know, that sounds weird, but this is why these types of rights are not transferable because it relates to a person’s credibility and reputation. Moral rights include the right to proper credit whenever your creative work is published, the right to disclaim authorship of unauthorized copies, and the right to object to distortion, mutilation, or other modification of your work that injuries your reputation. Usually you see moral rights in the context of visual artists who refuse to be associated with a work that has been heavily edited (and not to their liking). The U.S. does not recognize moral rights. Europe and other countries do. But the U.S. does recognize other rights similar to moral rights, which are based in trademark laws. Because moral rights in the U.S. are not recognized, and not transferable in other jurisdictions, do not include them in a copyright transfer.
There are numerous issues that can arise with the transfer of copyright ownership. Attempting to discuss them all is beyond the scope of this article. If you have specific questions about a copyright transfer, let us know. We are happy to help.
Below is a sample form for an all-rights transfer of a U.S. copyright.
Legal Disclaimer: This form and the information in this article are for educational purposes only. It does not constitute legal advice or establish an attorney-client relationship. I am a writer, who is also a lawyer, helping other fellow writers learn about publishing law related issues. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation and when using this form.
[name of Assignor] (“Assignor”), located at [address of Assignor], for good and valuable consideration, the receipt of which is hereby acknowledged, irrevocably assigns and transfers to [name of Assignee] (“Assignee”), located at [address of Assignee], all right, title, and interest in and to any and all copyrights to the following work:
[describe the creative work clearly—title, description, any publication references, the copyright registration number if you have it, and if convenient, attach the copyright registration and a copy of the work if not too voluminous as exhibits to the agreement, referring to them as “attached as Exhibit A” and “attached as Exhibit B”].
Assignor warrants and represents no other assignment, license, contract, or understanding has been entered into that conflicts with the copyright assignment herein.
This copyright assignment is governed by the laws of the State of [insert your State].
By: ___________________[signature of Assignor] Date: __________________
[Name of Assignor]
By: ___________________[signature of Assignee] Date: __________________
[Name of Assignee]