When, in response to a French decision upholding the rights of employee journalists to prevent the publisher's unauthorized licensing of electronic rights in the journalists' articles, French newspaper publishers yearn for "American-style copyright," they must imagine a work-made-for-hire nirvana in which publishers dispose of all rights in contributions to their periodicals, heedless of (and legally shielded from) authors' pesty claims for payment or control. To the extent that the work-made-for-hire doctrine applies, the publishing paradise conjured up by these French fantasies of law "reform" is very real indeed. Under U.S. copyright law, employee creators are not statutory "authors;" their employer enjoys that status, and owns all rights in the copyright. ab initio. Thus, had they been U.S. employee journalists challenging a U.S. employer-publisher's U.S. electronic exploitation, the plaintiffs in the Dutch, Belgian and French cases would have had no claim. Even U.S. free-lance journalists will be subject to copyright divestiture through the worksmade-for-hire rule, if they sign a contract that commissions their contribution to the periodical, and specifies that their contribution wm' be considered a work made for hire. But, as the Tasini case illustrates, not all free-lancers sign work for hire agreements, either because they enjoy sufficient bargaining power to resist the publisher's demands, or (at least equally likely) because publishers are not always punctillious about securing these agreements.
Under U.S. copyright law, if the creator ofthe contribution is not an employee for hire, then she is the author and copyright owner, and, Tasini tells us, in the absence of a clear contractual grant, the author will not be presumed to have conveyed anything more than initial print publication rights. The copyright act requires any grant of exclusive rights to be in writing and signed by the author. Thus, if a freelance author has merely contracted to publish in a print journal, she has not also contracted to be republished in a digital medium.
Intellectual Property Law | Law
Jane C. Ginsburg,
Ownership of Electronic Rights and the Private International Law of Copyright,
Colum.-VLA J. L. & Arts
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3542