Editorial contracts

This guide is intended to assist editors in meeting some of the issues likely to be encountered in their day-to-day work relating to editorial contracts and are suggestions as to how such problems can be solved.

Do keep records of what has been agreed - change of editor, sale of publication, death of contributor and electronic rights positions are only a few of the situations that could cause real problems if adequate records are not kept.

The distribution or publication of any copyright article without an express or implied licence is a criminal offence. The popular view that an article is in the 'public domain' - ie that it has been published somewhere else already - and can therefore be used freely - is false and can prove very costly if followed.

The 1988 act - principal issues

The Copyright Designs and Patents Act (1988) revolutionised the basis of copyright law and in particular made it imperative to look at all commissioning procedures and photographic / artistic arrangements.

Definition of the author
The author is defined as the person who creates the work, so will include photographers and - in certain circumstances - the person who speaks the words recorded (interviewee, for example). Under the terms of the 1998 Copyright Act, the author is now prima facie the first owner of the copyright in the work. The main exceptions to this are:
- an employer owns the copyright of an employee's works. Where the terms of the commission specifically transfer copyright from author to commissioner;
- computer generated works;
- typographical arrangement.
The ownership of copyright in photographs
The photographer is usually regarded as 'the author' of photographs taken. The length of copyright in photographs is the life of the author plus 70 years. The 1988 act swept aside old commissioning rules for both photographers and artists / illustrators. Commissions must, therefore, spell out rights to be acquired and also ownership of materials to be used or created. The terms of the commission should be specifically agreed before the work is commenced, unless a general course of dealing has been established between the parties, for example by means of a retainer agreement.

Moral rights
Moral rights are a concept previously unknown in English law. They enable authors and their heirs to control, independently of rights sold, the use of work including when and how it is to be published, and to insist upon the right of paternity ie authorship. They do not apply to employees' work, computer generated work, or work done for, or appearing in magazines, periodicals and newspapers. If the work is published elsewhere and no change in format is made, moral rights still do not apply. Moral rights can be waived by written agreement, or consent to use without moral right restrictions can be obtained.

Private pictures
Beware when creating an autobiographical feature or when a person becomes newsworthy, as use of either commissioned or uncommissioned private pictures may pose a problem. In both cases, copyright usually will belong to the photographer. However, specific rules restrict publication of commissioned photographs taken on a private occasion for private and domestic use. Commissioned private pictures, irrespective of who owns the copyright, may not be reproduced without the commissioner's consent. Typical examples would include photographs taken at weddings and other family events.
Acquiring rights
- Without written agreement, the original materials will belong to the creator. For example, films used by photographers and cartoonists' drawings, unless these are paid for by the commissioner.
- Without written agreement, no exclusivity can be acquired, so your supplier could release the material to your competitor or to other media, for example TV, and spoil an exclusive story.
- It is legally almost impossible to own or control a character / advertising campaign if 'all rights' are not obtained.
Duration
It is now generally the author's life plus 70 years.
Extent
The phrase 'all rights' had, until comparatively recently, been taken to mean the complete right to exploit a work for its entire copyright life. However, a more cautious term of 'all rights to publish or reproduce the work in all media whether now existing or to be developed in the future' is now being adopted.

If you do not want, or cannot obtain all rights, you will require a licence. Licences can be limited by country, language, type of publication or duration.