THE FUNDAMENTAL PRINCIPLE UNDER UNITED STATES COPYRIGHT LAW

IVAN HOFFMAN, B.A., J.D.


        Here is the fundamental legal principle under United States copyright law:

If you are not the actual creator of copyrightable work, then the only way that you can acquire exclusive rights to the creator’s copyrightable work is by having a valid, written, signed and legally sufficient writing transferring some or all of those rights exclusively to you.  (I am assuming that the creator is not a bona fide employee of yours acting within the course and scope of his or her employment and even then, it is always better to have such a thorough, written and signed agreement).  If you see with vision (read “The Need for Vision” and “What Business Are You In?”), you will understand that that writing should be a thorough, valid, written and signed agreement covering the many, many issues involved in this sort of transaction.   Thus if you are a publisher, web site owner, author or any other non-creating party engaging the services of an independent contractor cover artist, illustrator, editor, ghostwriter, web site designer or any other independent contractor creating party, you DO NOT OWN exclusive rights to that independent contractor party’s copyrightable work unless you have such a valid, written and signed writing.  In the absence of such a writing, all such exclusive rights remain solely owned by the said creator.
        And if you do not own exclusive rights, then you have a potential legal nightmare on your hands.  (Read “A Legal Nightmare: The Unwritten License” and “A Legal Nightmare: The Unwritten License: Further Issues” )

        I do not take a position in this article as to which party should own those exclusive rights in any given transaction since my work, as an attorney, is to represent my client’s best interests.  However, the important point in this article and the other articles cited and in the statement of the above law is that it is in both sides best interests to have a thorough, written and signed agreement covering the many issues that should be covered in any such transaction.

        In the business of intellectual property rights, which is the business you are likely in if you are reading this article and are visiting my web site, legally appropriate contracts are not add-ons to your business, something you do if you have any money left over; legally appropriate contracts are your business.  Without a thorough and valid contract, what you have is nothing but an illusion.  It only appears you are in business but in reality, you are not since given any controversy between you and the other party, you risk losing your rights and the money that goes along with those rights.  Or risk creating such a legal nightmare that the costs overwhelm the benefits.

        Is that how you want to run your business?

Copyright © 2003 Ivan Hoffman.  All Rights Reserved.

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This article is not intended as legal advice and is not legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship.

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.

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