Commissioned works
You may need to clarify copyright if you commission a work such as an illustration or photograph, or the work uses a ghost writer or co-authors.
In general, the creator owns the copyright unless you have a contract that assigns you, the commissioner, the copyright or a licence to use the work.
In some countries, such as New Zealand, it’s the other way around so the default position for photographs, illustrations, and most other works is that the person commissioning the work owns the copyright unless the creator is granted it by contract. There’s one notable exception in New Zealand: written works. In this case, the writer owns the copyright. Confused?
Our advice is that, whatever the local law says, you should routinely make it clear by agreement when you commission a work that you will own it. Contracts where you are commissioning a work that you’ll own are often referred to as ‘work for hire‘ contracts.
Territories
When you acquired rights to an illustration or an excerpt, did you acquire them for all territories, i.e. for all countries? International sales will probably be a bigger part of an ebook’s sales potential than the original printed book.
Digital agreements need to match the territories in which you plan to sell the work and ebook distributors will require you to be very specific about this.
Scope of rights
As we’ve seen, copyright is a bundle of rights, not just a single right. This also applies to rights you’re acquiring for images, etc. The widest scope is ‘all rights in all territories/worldwide’, either exclusive or non-exclusive, and possibly for a specific term. However, for some works you’ll probably have to narrow this scope.
In the case of electronic rights, this might require that you specify the types of electronic use: web, app, enhanced ebooks, EPUB format, etc.
If you’re selling rights, make the grant as narrow as possible to maximize your income potential. If you’re acquiring rights, make it as broad as you can to maximize your flexibility and minimize your cost.
Layout
Some digital formats, such as PDF and a number of proprietary formats, aim to be a more-or-less exact replica of a printed book. In this case, the publisher of the printed edition may hold rights over aspects of the layout, which will have to be cleared for a digital replica edition. This might even apply to public domain content which follows the organization and selection choices made by a publisher.
Jurisdiction
This is a fancy word for which country’s laws govern your contract. If you’re only dealing with parties in a single country, it’s pretty clear. But these days, we’re often operating in an international market place and in matters of copyright there are country-specific differences, as we’ve seen with commissioned works.
For example, who will own the copyright in this situation? An author operating from New Zealand – whose law grants copyright to the commissioner – commissions an illustration from an artist who resides in the US – whose law recognizes the creator as the default copyright owner. There’s a legal battle looming here, so it’s better to avoid it. You should add a contract clause that clarifies the specific point, or should state which country’s laws will apply to the agreement.
While there are national variations in copyright, the basic principles are similar. Most countries are party to the Berne Convention, which provides copyright protection across borders. This includes making copyright protection automatic on creation of the work, and it limits the extent of national variations somewhat.
Documentation
When you obtain rights to works, make sure you document your clearances well. This includes any associated email discussions, diary notes from phone calls (noting the date, time, and person spoken to), and proof of any payments made.
The most important thing is to have clear agreement on a clearly worded contract: if there’s any dispute, good documentation will be important in resolving it in your favor. Books and ebooks are going to be around for a long time so preserve this documentation appropriately.
Resources
Find out more about this topic on our Digital Publishing 101 useful resources site.
