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RE: [GWL]: Contract question/work-for-hire contracts

Under American copyright law, the author automatically owns the 
copyright and all rights associated with a piece of writing except for 
specific rights spelled out and granted in the contract.  Anything not 
mentioned belongs to the author.  The exception is a work-for-hire 
situation or contract.  

In a work-for-hire situation, the author is usually a full-time 
benefits-receiving employee working on a publication by multiple people. 
  

In a work-for-hire contract for a freelancer the employer/publisher owns 
the copyright and all rights.  The author does not own the writing and 
has no rights.  He does not even have the "right" to credit for the 
work.  Someone else's byline may be placed upon the story, it may be 
bylined "by the editors of," or run without byline.  The author has no 
rights except those specifically granted in a contract.  Everything 
unmentioned belongs to the publisher.  

Contractual terms should be established ahead of time in the contract.  
You should not allow a publisher to seize additional rights after you 
have done the work.  You should not allow anyone to blackmail you into 
relinquishing additional rights in order to get paid.  Statements about 
rights DO NOT BELONG on an invoice or check.  Statements about rights on 
an invoice or check can indicate a publisher who is trying to 
unilaterally seize additional rights after the fact.  The situation is 
not uncommon.

If your original contract said Work-for-hire, then the copyright is 
theirs and you have no rights except what is granted to you in this 
contract, by the publisher, the owner of the story and all rights to it. 
 (Does the contract grant you a by-line, for example?  If not, they 
don't even have to mention your authorship.  Or they can give the 
by-line to someone else and list you as someone who helped provide 
information for the piece.  That don't have to give you any credit at 
all unless it's in the contract.)  If the contract uses the expression 
"work-for-hire" and grants specific rights (such as first North American 
serial rights), it is still an all rights situation.   EVERYTHING NOT 
MENTIONED IS THEIRS IN A WORK-FOR-HIRE.  So even if the contract 
mentions only 1st North American Serial Rights specifically, if it also 
says "Work-for-hire" somewhere in it, they own ALL RIGHTS, not just the 
1st North American Serial rights.

If your original contract never used the legal trigger-phrase 
"work-for-hire," and the invoice DOES say work-for-hire, your publisher 
has tried to seize all rights and ownership of the copyright 
after-the-fact of your work, in contradiction to what was in your 
contract.  That is, they are trying to supercede the terms of your 
contract after the fact.  

Please tell us which of these two situation obtains, and I might then 
offer some thoughts about how to deal with it.

Like everyone else, I'm in a state of exhaustion and grief.  I have not 
even tried to do any work since Tuesday.  Life goes on, though, and 
people will need to deal with it.  For writers, that means dealing with 
publishers and contracts.  In that spirit I offer this response.  

Carol Deppe
Author of BREED YOUR OWN VEGETABLE VARIETIES:  THE GARDENER'S AND 
FARMER'S GUIDE TO PLANT BREEDING AND SEED SAVING (See table of contents, 
excerpts, & reviews at http://www.chelseagreen.com.)  

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