jointly and that all the col aborators must
work is published, the deceased col aborator’s sign all agreements for publication or other estate or disabled col aborator must be paid a exploitation of the work.
pro rata share of the income received from the
work. This share is based on the amount of
All editorial, business, and other decisions
the deceased or disabled col aborator’s written
affecting the Work shall be made jointly by
contribution to the completed work after
all of us and no agreement shall be valid
deducting expenses incurred by the remaining
without all our signatures.
col aborators in completing the work.
CHAPTER 7 | INITIAL COPYRIGHT OWNERSHIP | 195
Collaboration Agreement—Page 3
12. No Partnership
We are col aborators in this single Work. This agreement does not create a
partnership relationship.
13. Exclusive Agreement
This is our entire agreement. Any other agreements previously entered into by us
are superseded by it.
14. Noncompetition
For a period of two years after completion of the Work, none of us shall participate
in the preparation of any other work that directly competes with and would
significantly diminish the sales of the Work.
15. Derivative Works
We agree that none of us will incorporate material based on or derived from
the Work in any subsequent work without the written consent of the other
collaborators.
16. Warranties and Indemnities
We represent and warrant to each other all of the fol owing:
• Each of us is free to enter into this agreement.
• Our contributions to the Work are original or all necessary permissions
and releases have been obtained and paid for.
• None of our contributions to the Work libel, violate the right of privacy or
publicity, or infringe upon any copyright or other proprietary right of any
other person or entity.
We each agree to indemnify the others for any loss, liability, or expense resulting
from the actual breach of these warranties.
17. Successors
This agreement shall benefit and bind our heirs, successors, assigns, and personal
representatives.
196 | THE COPYRIGHT HANDBOOK
Noncompetition
publisher for the costs involved in defending
Collaboration agreements often include
a lawsuit. This means that if one of your
non competition provisions barring the
fel ow col aborators violates a third person’s
collaborators from authoring competing
rights, you could end up liable for the
works. However, you need to think
damages. The fol owing provision protects
carefully about including such a provision
you from this by requiring each col aborator
at all, and, if so, how broad it should be.
to indemnify the other if he or she commits
Such a provision could make it difficult
such a violation.
or impossible for you or your other
collaborators to earn a living. If you want
We represent and warrant to each other all
such a provision, it’s usually best to limit its
of the fol owing:
duration. You may also want to place other
• Each of us is free to enter into this
limitations on the restriction—for example,
agreement.
permitting collaborators to write magazine
• Our contributions to the Work are
articles on the same topic as the work.
original or al necessary permissions
and releases have been obtained and
paid for.
For a period of
years after completion
• None of our contributions to the
of the Work, none of us shall participate in the
Work libel, violate the right of privacy
preparation of any other work that directly
or publicity, or infringe upon any
competes with and would significantly dimin-
copyright or other proprietary right
ish the sales of the Work.
of any other person or entity.
[ OPTIONAL]
We each agree to indemnify the other(s) for
This noncompetition agreement does not
any loss, liability, or expense resulting from
apply in the fol owing circumstances:
the actual breach of these warranties.
[ describe]
.
Assignment and delegation
Warranties and indemnities
The following provision prevents the col-
Virtual y all book publishing contracts
laborators from assigning their contract
contain a warranty and indemnity clause
rights or delegating their duties without the
in which the authors promise the publisher
other collaborators’ written permission. This
that their work does not infringe on anybody means, for example, that a collaborator can-else’s copyright or other rights. If it turns
not get someone else to do his or her work
out to infringe, the authors are required
without the other collaborators’ consent.
to indemnify—that is, reimburse—the
CHAPTER 7 | INITIAL COPYRIGHT OWNERSHIP | 197
Collaboration Agreement—Page 4
18. Assignment and Delegation
None of us may assign his or her rights or delegate his or her duties under this
agreement without the other collaborators’ written consent. However, any
col aborator may assign the right to receive royalties or other income from the
Work by giving written notice to the other col aborators.
19. Applicable Law
This agreement will be governed by the laws of the state of California.
20. Dispute Resolution
If a dispute arises under this agreement, we agree to first try to resolve it with the
help of a mutual y agreed-upon mediator in the fol owing location: Santa Longo,
CA. Any costs and fees other than attorneys’ fees associated with the mediation
will be shared equal y by each of us.
If it proves impossible to arrive at a mutual y satisfactory solution through
mediation, we agree to submit the dispute to binding arbitration at the fol owing
location: Santa Longo, CA, under the rules of the American Arbitration Association.
Judgment upon the award rendered by the arbitration may be entered in any court
with jurisdiction to do so.
21. Attorneys’ Fees
If any legal action is necessary to enforce this agreement, the prevailing party shall
be entitled to reasonable attorneys’ fees, costs, and expenses in addition to any
other relief to which he or she may be entitled.
Signatures:
Nastassia Kinsey
Date
Jack Handy
Date
Bartleby Crum
Date
198 | THE COPYRIGHT HANDBOOK
following clause where the mediation or
None of us may assign his or her rights
arbitration would occur. You’ll usually want
or delegate his or her duties under this
it in the city or county where you live. If
agreement without the other collaborators’
>
the collaborators live a long distance apart,
written consent. However, any collaborator
they’ll have to agree on a location.
may assign the right to receive royalties
or other income from the Work by giving
written notice to the other collaborator(s).
If a dispute arises under this agreement, we
agree to first try to resolve it with the help
of a mutual y agreed-upon mediator in the
Dispute resolution
following location [ list city or county where
mediation will occur]. Any costs and fees
One of the most important functions of
other than attorneys’ fees associated with the
a collaboration agreement is to provide
mediation will be shared equal y by each of us.
a means for resolving disputes. As you
If it proves impossible to arrive at a mutual y
probably know, court litigation can be very
satisfactory solution through mediation,
expensive. To avoid this cost, alternative
we agree to submit the dispute to binding
forms of dispute resolution have been
arbitration at the fol owing location [ list
developed that don’t involve going to court.
city or county where arbitration will occur]
These include mediation and arbitration.
under the rules of the American Arbitration
The following provision requires the
Association. Judgment upon the award
collaborators to take advantage of these
rendered by the arbitration may be entered
alternate forms of dispute resolution. You’re
in any court with jurisdiction to do so.
first required to submit the dispute to
mediation. You agree on a neutral third
person to serve as mediator and try to help
Joint Authors’ Rights and Duties in the
you settle your dispute. The mediator has
Absence of a Col aboration Agreement
no power to impose a decision, only to try
to help you arrive at one.
The drafters of the Copyright Act realized
If mediation doesn’t work, you must
that not all joint authors would be prudent
submit the dispute to binding arbitration.
enough to enter into written (or even oral)
Arbitration is usually like an informal
col aboration agreements setting forth their
court trial without a jury, but involves
ownership interests, rights, and duties. To
arbitrators instead of judges and is usually
avoid chaos, they made sure that the act
much faster and cheaper than courts. You
contained provisions governing the most
may be represented by a lawyer, but it’s
important aspects of the legal relationship
not required. You should indicate in the
between joint authors who fail to agree
CHAPTER 7 | INITIAL COPYRIGHT OWNERSHIP | 199
among themselves how their relationship
EXAMPLE: Manny, Moe, and Jack are joint
should operate. You might think of these
authors of a novel. Manny gives Publisher A
provisions as similar to a computer program’s
the nonexclusive right to publish the book in
default settings that control the program
North America. Moe gives the same right to
when the user fails to indicate settings.
Publisher B, and Jack to Publisher C. The result,
perfectly legal, is that three publishers have
Ownership interests
the right to publish the book at the same time.
Unless they agree otherwise, joint authors
each have an undivided interest in the entire
TIP
work. This is basical y the same as joint
To avoid the kind of results illustrat-
ownership of a house or other real estate.
ed in the above example, anyone who purchases
When a husband and wife jointly own their
an exclusive right in a joint work should require
home, they normal y each own a 50% interest signatures by all the authors. (See Chapter 8, in the entire house—that is, they each have
“Transferring Copyright Ownership,” for a detailed
an undivided one-half interest. Similarly, joint discussion of copyright transfers.)
authors share ownership of all five exclusive
rights that make up the joint work’s copyright.
Right to transfer ownership
Right to exploit copyright
Finally, unless they agree otherwise, each
Unless they agree otherwise, each joint
author of a joint work may transfer his or
author has the right to exercise any or all
her entire ownership interest to another
of the five copyright rights inherent in the
person without the other joint authors’
joint work—that is, any of the authors
consent. Such person then co-owns the work
may reproduce and distribute the work or
with the remaining authors. But a joint
prepare derivative works based upon it (or
author can only transfer his or her particular
display or perform it). Each author may do
interest, not that of any other author.
so without the other joint authors’ consent.
EXAMPLE: Sue, Deborah, and Martin are joint
Right to license joint work
authors of a college textbook. Sue decides to
transfer her ownership interest to her son,
Unless they agree otherwise, each joint author
Sam. Since Sue, Deborah, and Martin have
may grant third parties permission to exploit
not agreed among themselves to restrict their
the work—on a nonexclusive basis—without
transfer rights in any way, Sue may transfer
the other owners’ consent. This means that
her interest to Sam without Deborah’s or
different authors may grant nonexclusive
Martin’s consent (but Sue could not transfer
licenses of the same right to different persons!
Deborah’s or Martin’s ownership interests to
200 | THE COPYRIGHT HANDBOOK
Sam without their consent). When the transfer
It may not seem fair that a joint author
is completed, Sam will have all the rights Sue
who goes to the time and trouble of
had as a joint author.
exploiting the copyright in the joint work
by publishing it or creating derivative
Duty to account for profits
works based upon it is required to share
his or her profits equally with the other
Along with these rights, each joint author
joint authors who did nothing. This is still
has the duty to account to the other joint
another reason why it’s wise to enter into a
owners for any profits received from his or
collaboration agreement.
her use or license of the joint work. All the
joint authors are entitled to share in these
What happens when a joint author dies?
profits. Unless they agree otherwise, the
profits must be divided among the authors
Absent a joint tenancy agreement, a
according to their proportionate interests in deceased joint author’s heirs would acquire the j
oint work. (Note, however, that such
his or her share in the joint work. The other
profits do not include what one author gets joint authors do not acquire a deceased
for selling his or her share of the copyright.) owner’s share (unless, of course, the
deceased owner willed it to them, or the
EXAMPLE: Bill and Lee are joint authors of a
author died without a will and another joint
novel. Bill writes a screenplay based on the
author happened to be a family or blood
novel and sel s it for $10,000. Lee is entitled to relation entitled to inherit an interest under one-half of the $10,000.
the general inheritance laws).
l
C H A P T E R
Transferring Copyright Ownership
8
How Copyright Ownership Rights Are Transferred to Others ................................... 204
Exclusive Licenses ............................................................................................................................ 204
Assignments....................................................................................................................................... 205
Nonexclusive Licenses Do Not Transfer Copyright Ownership ............................. 205
Sales of Copies Do Not Transfer Copyright Ownership ............................................. 206
Copyright Transfers Do Not Affect Copyright Duration ........................................... 207
Rights Retained by Author After Transfer ............................................................................... 208
Right to Sublicense Under Exclusive Licenses ................................................................. 208
Statutory Termination of Transfers After 35 Years ........................................................210
Filing Documents With the Copyright Office ..................................................................212
Moral Rights........................................................................................................................................213
Copyright Transfers Between Freelance Writers and Magazines
and Other Periodicals ........................................................................................................................214
Transfers From the Writer’s Point of View .........................................................................214
Transfers From a Magazine’s Point of View .......................................................................216
Copyright Transfers Between Writers and Book Publishers..........................................217
Publishing Argot ...............................................................................................................................217
The Copyright Handbook Page 35