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Good morning, ,

A couple of months ago, one of my Pathway to Publication clients pitched an article to a high-visibility publication. The pitch was accepted and a deadline agreed upon. Then her editor asked her to sign a copyright transfer agreement.

That kicked off a number of conversations about copyright law, copyright transfer agreements, and what it means to protect our intellectual property.

When I shared some of these conversations on LinkedIn, I realized I needed to put together something more concrete.

I also realized I was out of my depth.

I am a recovering attorney, but my practice focused on securities litigation. My understanding of copyright transfer agreements comes from my experiences as an editor, freelance writer, and ghostwriter. I needed to call in an expert.

Erin Austin is that expert.

So, without further ado, let's get into it.

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Are You Losing Control of Your Intellectual Property by Writing Articles for Publication?

Your expertise is the foundation of your business. When you fix that expertise in a tangible form of expression, such as a book, article, or podcast, it becomes a valuable asset and a type of intellectual property (IP). As Erin Austin of Think Beyond IP says, “Owning and controlling intellectual property is the prerequisite to scaling your B2B expertise-based business.”

As a consultant, it is essential to protect your intellectual property.

But how do you protect your intellectual property when you’re writing and publishing articles? Doesn’t that put your intellectual property at risk? And what should you do if the publication you write for wants to own the articles you write? Doesn’t that mean you are giving up control of your intellectual property? 

A primer on copyright law.

To be eligible for copyright protection, a work must be creative, original, and authored by a human (which means articles generated by AI are not eligible). It also must be in a form that allows the work to be consumed and reproduced. Written, audio, visual, and video works are all eligible for copyright protection.

Copyright protection attaches to a work as soon as it takes tangible form. So, as soon as you write an article, that article is copyrighted and you are the copyright owner. You don’t need to register the work with the U.S. Copyright Office. Registering the work provides you with additional protections and makes enforcement easier, but it is not required.

For information about the legal remedies available when someone infringes upon your copyrights, review Copyright Infringement Damages by Erin Austin. 

As the copyright owner, you have the exclusive right to display the article, reproduce it, distribute copies, and create derivative versions. You may also transfer these rights to others, either permanently or for a defined period or purpose. 

Copyright protection attaches to the work — in this case to the article. It does not protect the ideas presented in the article. Copyright protects the expression of your ideas, not the ideas themselves. 

You cannot protect your ideas. You can, however, become known for your ideas.

Transferring ownership of your intellectual property. 

Copyright law permits you to transfer some or all of your rights to display, reproduce, distribute copies, and create derivative versions of your article. Some publications ask you to sign a copyright transfer agreement, which transfers some or all of your copyrights to the publication. 

In the absence of a written agreement, submitting your article grants a publication a non-exclusive license to publish your work. An exclusive license is a transfer of your copyrights, which requires a written agreement. 

Publications seek the copyrights to your article so they can control when, where, and to whom they distribute the article. Many association publications request the copyrights to limit distribution of the article to their members. Your article is a benefit of membership. That benefit isn’t terribly valuable if the article can easily be accessed elsewhere.

Often you will be asked to sign a copyright transfer agreement shortly before the article is published. If you’re not expecting it, this practice may feel manipulative; you may feel you have no choice but to sign the agreement. 

Most reputable publications operate in good faith. The practice of requesting a transfer of copyright at the last minute is fairly standard. It is a holdover from the publication’s work with freelance writers. Freelance writers are paid upon publication, and publication is not guaranteed. There is no reason or incentive for a freelance writer to transfer their copyrights to the publication until they know the piece will be published and they will be compensated.  

A copyright transfer agreement is a contract. But few people (authors and publishers alike) take the time to read and understand the terms of these contracts. Publications often see these contracts are mere formalities — something that is done because it’s always been done. 

It is essential that you read and understand the copyright transfer agreement before you sign it. If the agreement transfers all your rights to the publication, the publication owns your article and can rewrite it or publish it without crediting you as the author.

Determining your next steps.

Before you decide how to proceed, you must first review the contract carefully. These agreements are typically quite short, so take the time to determine which copyrights are reserved to the author and which are claimed by the publication. And remember that the terms of the copyright transfer agreement are negotiable. 

One of the most important rights to retain is the right to be credited as the author. If your article includes a chart or infographic, you want to make sure it is identified as a separate copyright owned entirely by you. Finally, understand what rights you have to distribute the article. Many publications will provide you with a PDF of your article that clearly identifies the publisher. 

Before negotiating the contract, keep in mind that copyright protects the expression of an idea, not the idea itself. Also, there are real benefits to transferring your copyrights to the publication. If someone steals your article and claims it as their own, they have infringed upon the publication’s copyright, not yours. So it is the publication that will have to take action to enforce those rights. 

Once you have reviewed the contract and determined which rights you want to retain, it’s time to negotiate. If your editor sent you the transfer of copyright agreement, give them the benefit of the doubt that they are acting in good faith. Frankly, the chances are good that they haven’t read the contract in a long time — they send it out as a matter of course, paying it little attention until someone raises the issue. 

Your editor is your advocate. They have invested time and energy into you and the article you’ve written, so they don’t want to see this fall apart any more than you do! If there’s anything you don’t understand about the contract, ask for clarification. Share your concerns and seek a solution that serves both you and the publication. 

As the copyright holder, you must take the time to understand your rights and the rights you are giving up when you sign a copyright transfer agreement. You also need to know which rights you want to retain so you can negotiate the terms of the agreement.

This is your intellectual property.

Protect it.

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DISCLAIMER: This article offers general information about copyright protection. I made every effort to ensure its accuracy, but I am not an intellectual property attorney. Please consult with a lawyer who specializes in copyright law before making any decisions that will affect your rights. To learn more about what you can and cannot copyright and license to others, take Erin Austin’s free quiz. 

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"People may get an education from reading the fine print, but what they get from not reading it is usually experience."

~ Vesta M. Kelly, The Wall Street Journal, "Pepper and Salt," 1961

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Upcoming Events

Pitched to Published™ 

Interested in learning how to write, pitch, and publish articles for high-visibility publications? Join me on Wednesday, September 11, at 11:55 AM Eastern, for a mini-training on how to structure articles for publication, followed by a Q+A. This is a free, public event. Register here.

LinkedIn Live with Erin Austin 

In this LinkedIn Live event, Erin Austin and I will answer your questions about copyright transfer agreements. Please submit your questions in advance. You can share your questions on the event page or by email. Register here.

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I'll see you in a few weeks!

The next cohort of Pathway to Publication, my hybrid private and small group program for those who want to write articles for high-visibility publications, is starting next month. You'll be hearing more about it soon, but if you'd like to talk about whether it is the right next step for you, please book a call. 

I'd love to learn more about your business goals so we can discuss how writing articles will help you achieve those goals and how I might be of service.

Take good care,