Licensing your work and selling your rights

A publisher says it wants to "buy your illustrations." That could mean buying prints, commissioning new work, taking a license, or acquiring your copyright. The same everyday phrase covers deals with very different consequences. Before you compare prices, find out exactly what is changing hands.

An object and the rights in it are different

Selling a painting does not sell the copyright in it. U.S. law treats ownership of the copyright and ownership of the physical object as separate, and handing over even the original does not convey any rights in the work. 1 Treat a delivered digital file the same way: delivery settles where the file went, not what the recipient may do with it.

A commission often bundles several promises. You agree to make an image, supply the editable files, and permit a particular use. Write each one down separately. A fee for your time does not say who holds the rights, and a rights clause does not say how many revisions you owe.

A license gives permission

A license lets someone else use your work on agreed terms while you keep ownership. 2 Licenses can be non-exclusive (you can license the same use to others), exclusive, or sole. 2 Decide which one you are offering, and write down exactly which uses it covers.

Say a magazine wants your photograph for its print edition. The online archive, promotional posters, translated editions, and use by a sister company are each a separate use. Name the ones you are licensing and leave the rest out. That helps the magazine too: it will not pay for a permission that misses its plan.

An assignment sells ownership

An assignment is a sale: you transfer ownership of the right to someone else. 2 U.S. copyright can be transferred in whole or in part, and each exclusive right, or any slice of one, can be transferred and owned separately. 1 Those rights include reproducing the work, making derivative works, distributing copies, and performing or displaying it publicly. 3 So you can sell, say, the right to print a book in one market and keep everything else. List what moves and what you keep.

An exclusive license counts as a transfer

U.S. copyright law treats an exclusive license as a "transfer of copyright ownership"; a non-exclusive license is not. 3 The licensee who holds an exclusive right gets the same protection and remedies as a copyright owner for that right. 1 So a document titled "license" can hand over ownership of the rights it covers. If you want to keep using the work yourself in that market, say so in the contract.

Follow these steps for any assignment or exclusive license:

1. Put it in writing and get it signed. A transfer, other than one by operation of law, is not valid unless it is in writing and signed by the owner of the rights or an authorized agent. 1 A non-exclusive license does not need a written agreement, but write it down anyway so both sides know the scope. 4
2. Record it with the U.S. Copyright Office. Recording is not required for a valid transfer, but it gives legal advantages. 4 If two transfers of the same right conflict, the first one signed wins if it was recorded within one month of signing in the United States (two months if signed abroad); recording works as public notice only if the work is registered. 1 File through the Online Recordation System and work out the fee with the calculator on the recordation page. 5
3. Have a copyright attorney read the grant before you sign if it is exclusive or covers more than the use you discussed; it decides what you can do with your own work for years.

A transfer is not always forever. For grants an author signed on or after January 1, 1978 (other than for a work made for hire), the author can terminate the grant during a five-year window that starts 35 years after it was signed, by serving written notice 2 to 10 years in advance. 1 The notice must also be recorded with the Copyright Office before the termination date, or it is invalid. 4

Payment does not tell you which deal you have

A license can be paid as a lump sum, as recurring royalties, or a mix of both. 2 A large upfront fee does not turn a license into a sale of all rights, and royalties do not mean you kept everything. Read the grant and the payment terms together, but keep them in separate clauses.

Check that you can grant what you offer

Only the owner of a right, or that owner's authorized agent, can sign it over. 1 A collaborator, an employer, an earlier exclusive license, or a third-party element in the work can each limit what you have to offer. Trace the rights history first, then promise. Open every negotiation with one question: "What exactly may each of us do after we sign?"