Who owns the copy if a copywriter provides copy as a paid service?

Question

I build websites. I've used a copywriter to provide the website copy, the client paid the writer directly.

I placed copyright signs on the site for the writer as requested. However, they have now fallen out with the business owner and have asked me to remove all their copy as they claim to own it.

I've researched this, but all I can see is that if the writer has been paid for their services, they can no longer claim ownership of the copy and it belongs to the business owner who paid for their services.

Is the above true, is either party in a stronger legal position?

Answer 1

In work-for-hire arrangements, the paying customer usually owns the copyright. It sounds like there was nothing in writing or any discussion about whether it was work-for-hire or simple use of the writer's text.

Without the terms stated explicitly, there is a lot of ambiguity. Some things to ask:

Did the author have a byline in this text? Did the copyright statement say Copyright by John Smith or Copyright by ABC Company? Was there any mention of exclusive use of the text? Was there discussion of time limits? What country is this in? (Non-US countries have "moral rights" for the author but an equivalent doesn't exist in USA). https://en.wikipedia.org/wiki/Moral_rights

I think the answer depends on whether this was a work for hire arrangement or whether the author retained copyright control but authorized a specific use to the client.

I am not a lawyer, etc.

Check out these links about work-for-hire arrangements in USA https://www.copyright.gov/circs/circ09.pdf and https://en.wikipedia.org/wiki/Work_for_hire

From the federal copyright doc:

A work created by an independent contractor can be a work made for hire only if (a) it falls within one of the nine categories of works listed in part 2 above and (b) there is a written agreement between parties specifying that the work is a work made for hire.

I interpret that to mean that without a written agreement using the specific phrase "work for hire", you have to assume that the author retains copyright and is granting use to the client.

Answer 2

If you're in doubt about your legal obligations, find a copyright lawyer and get some professional advice.

Answer 3

Your business is with the client.

Tell the writer to contact the client. Inform your client about the demands the writer made and ask him what he wants you to do, tell him that the risk is his.

Do all this in email, not verbal.

Answer 4

It all depends on the contract.

(Bear in mind that I'm not a lawyer. This is my amateur understanding of U.S. copyright law.)

If the client was foolish enough to purchase the text from the writer and not insist on a release, then the writer still owns the copyright to the text.

If the writer was working as a salaried employee, then any material produced would be the property of the company. But if the writer is a contract worker, then the writer does indeed own the copyright until and unless it is explicitly released. The writer can release it for a duration, for a specific purpose, or not at all.

In graphic design, when you design something for a client, you write something in the contract explicitly releasing the copyright to the client so that the client can use the finished work. If that finished work is a logo, the rights are unlimited. If the finished work is an illustration, the release might say "You can publish it in your book, but you can't put it on a T-shirt and sell it." The client explicitly does not have the right to any comps or alternate designs which the client didn't use and didn't pay for.

My (again, not-a-lawyer) interpretation of copyright law is similar here. If the writer produced something, even if it was paid for, the writer owns the copyright until the writer releases said copyright. If the client didn't secure the intellectual property rights to the copy, that's not the writer's fault or problem.

Answer 5

Let's imagine this goes to court. I'm not a lawyer, and I only have one extracurricular university course of IP law under my belt, but I do have logic. Here's what I think will happen:

First, to summarize the argument:

• The artist believes the contract was worded to license the use of the copy on the website.
• The website owner believes the contract was worded to sell the rights to the copy.

The most direct course to resolution will be to reconstruct the verbal agreement and analyze its wording. If the terms of the verbal agreement are particularly clear, then nothing else matters. However, this is unlikely - even if both parties somehow agree on what the exact wording was, that wording is sure to be far from comprehensive or explicit. So we need to consider other evidence.

I placed copyright signs on the site for the writer as requested.

If you're saying that the website's owner has permitted all of the writer's copy to be marked "copyright [writer's name] 2017" on the own website, then the writer will be able to point to this as evidence that the website's owner has acknowledged and failed to refute the writer's copyright while profiting from that copy.

The website owner will need a reasonable explanation for why they would mark the text as copyrighted to the author while profiting from the copy but then dispute that copyright when their business relationship changed. Since the website is easily accessible, and the owner has absolute power over its content, "ignorance" seems to be their only excuse.

On the other hand, the website's owner might have some ammunition if it can be proven that a single fee was paid for the copy, with no stipulation on how long it could be used. A license ought to have a time or expiration element, e.g. "you can use my copy for $30 per month" or "for $100 you can use my copy for a year". An indefinite license seems unusual, it either gives the copyright holder too much power (being able to terminate the license at will, e.g. after one day) or effectively amounts to sale of the copy (preventing the copyright holder from ever terminating the license), so it's not very good for business.

If the wording of the contract is too ambiguous, then the nature of the transaction is a strong indicator of the nature of the agreement. A single payment followed by a long period without payment is much more like the purchase of content rather than payment of licensing fees. A creative lawyer might be able to run with this.

Answer 6

I am not a lawyer. But in school I did have a class entitled "engineering and the law" taught jointly by a lawyer and an engineering prof. They said that if there is a contract, the owner is as specified in the contract (normally the client). If the contract doesn't address the issue, the copyright resides with the author. If the client paid the author, there is an implied permission to use the work in the context it was written for. The upshot would be that the author (in the absence of other contract provisions) can reuse the work in other contexts, cannot deprive the client of use in the intended context, and the client cannot use it in another context. As I understood it then.

As others have said, you had best speak with a lawyer.

Answer 7

I've researched this, but all I can see is that if the writer has been paid for their services, they can no longer claim ownership of the copy and it belongs to the business owner who paid for their services.

A writer owns the copyright to their work, unless it is specifically a "work for hire" which is a legal term, that only applies if there is a contract that specifically states it. It doesn't happen by accident. So then what did the client buy? There really is no telling without seeing the contract. The grant could be vague like the business is allowed to use it, it could be specific and say the website could use it (in which case it would be illegal to print in a brochure). Then there is the length of time the rights are granted, there could be specific time limits, or in perpetuity (forever).

In my limited experience, freelance copywriters usually assign all rights in perpetuity to the client upon full payment. The copywriter will also retain the right to use the work for their portfolio. My guess would be if the client paid the copywriter in full then the client has all the rights to it. You work for your client not the copywriter so unless you have some vested interest in keeping the copywriter happy, do what your client says.