A broad array of creative, expressive media are subject to copyright protection, including literature, photographs, music compositions and recordings, films, paintings and sculptures, and news articles – any “original work of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. For more information on copyright creation and ownership see the Copyright Ownership section of this legal guide.
If you are the copyright owner of a work (and you likely will be if you created the work), such as an article, a blog post, a photograph, or a video, you can authorize others to use it. You can do this by transferring to the person or entity that wants to use your work any or all of your rights as a copyright owner, or any subdivision of those rights. Alternatively, you can license any or all of those rights (or any subdivision of them) to that person or entity.
As the person granting the transfer or license, you have a
great deal of freedom in how to structure the transaction. How you
choose to do so can have a substantial impact on your ability to make
money from the work, the amount of control you retain over it, and the
costs associated with the transaction. Often, it will make sense to
hire a lawyer in order to deal with such a transaction because of the
complexity of the subject-matter, the potential flexibility of the
transaction, and the potentially high stakes. On the other hand, there
are three models or approaches that generally do not require the
assistance of a lawyer: an "all rights reserved" approach, using a
Creative Commons license, and a dedication to the public domain.
Whether one of these three approaches or some other approach is best
for you is a matter of personal preference. In the discussion that
follows, we go into more detail to give a sense of the issues involved
and to explain how you can effectively transfer or licensing your work.
The decision about whether and how to license or transfer your work
will depend on your own personal preference. There are a number of
factors that you may want to consider in reaching your decision,
including the potential for making money from the work, the extent of
control retained over the work, the costs involved in the
licensing/transfer transaction, and the permanence of the measure.
These and other issues are addressed below.
One obvious benefit to licensing/transfer is that people or businesses may be willing to pay you for use of your work. In some instances, this payment can be a significant source of income and may help support your project or website as well. In the How to Effectively Transfer or License Your Work section, we discuss three models for licensing/transferring your content: an "all rights reserved" model, using a Creative Commons (CC) license, and dedicating your work to the public domain. The most direct way of seeking revenue from exploitation of a work is to reserve all rights with respect to the public at large and then to pursue selective licensing or transfer deals in exchange for money. This is because granting a CC license to the public does not involve payment in return, although it does not rule out granting other licenses in exchange for money, and a public domain dedication obviously gives up all your rights to exploit the work. In contrast, if you are interested in contributing to, or gaining extra exposure in, an artistic, intellectual, business, or other community (perhaps with indirect financial benefits), a CC license or public domain dedication might be more appropriate.
One thing to keep in mind is that a full transfer of your rights will probably fetch more money in the short term than a non-exclusive license, but this comes with a corresponding sacrifice in terms of control of the work and personal exploitation.
Another thing to consider is whether your goals in relation to your work may change over time. Your aim now might be to gain exposure, but you might wish to commercialize your work down the line. Granting broad permission for others to freely use your work (through a CC license or similar) now may curtail your ability to commercialize the same work in the future.
Retaining control of your workRetaining control of your work is another significant issue. The important thing to remember in this regard is that you are not presented with an "all or nothing" scenario. You have significant freedom in how you structure your transfer or license, and the amount of control you retain is largely up to you. For details, please see the Which Rights Can Be Transferred or Licensed section.
For those seeking more control, an "all rights reserved" model combined with selective licensing transactions may be the best route, but this may necessitate the help of a lawyer specializing in intellectual property licensing. A CC license offers slightly less control (because the license is given to the public at large and generally allows sub-licensing on the same terms), but it is much lower cost because the entire process is automated on the CC website. That said, you still retain significant control with a CC license. For instance, you can grant the public a license to copy and distribute your work, but bar them from making derivative works (adaptations) of it or using it for commercial purposes. For more on what constitutes a "commercial use" and a "non commercial use," please see CC's Discussion Draft Noncommercial Guidelines.
Are there any costs involved?Different costs are involved based on which approach you take. For instance, granting a CC license to the public is free, but you will not make money directly from the license. Because a CC license is non-exclusive, you can still enter into one-on-one transactions for money, but these are more complex and likely require the assistance of a lawyer, which is expensive. Registering the transfer with the Copyright Office, an optional step which some copyright transferors take to protect their interests, also carries a fee (see Copyright Office Fees). Likewise, reserving your rights with regard to the public at large and transferring or licensing your rights in one-on-one transactions for money is likely to be expensive for the same reasons. You can dedicate your work to the public domain at no cost, but by doing so you give up all control and prospect of future remuneration.
If I transfer or license my work, is this permanent?Not necessarily. The length of time that a grant lasts will depend on the transfer or license arrangement you enter into. For instance, you can grant a transfer or license your rights in relation to your work for a specified duration of time (see the Which Rights Can Be Transferred or Licensed section). If you do not specify an end date in the executing document, or even if you if specify that the transfer or license is permanent and irrevocable, under the Copyright Act the grant is generally terminable by your (or your successors) within a five year window starting 35 years after the execution of a grant (see the Terminating a Transfer or License section).
It is also worth noting that if you grant a non-exclusive license to a person, and do not receive "consideration" (payment or some other kind of benefit in exchange for the grant) from them, this license is revocable (see the How to Effectively Transfer or License Your Work section).
How this all works with a CC license is not 100% clear. All varieties of CC license have a clause saying that the license grant is non-revocable. According to the CC FAQ:
This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license. You can stop distributing your work under a Creative Commons license at any time you wish; but this will not withdraw any copies of your work that already exist under a Creative Commons license from circulation, be they verbatim copies, copies included in collective works and/or adaptations of your work.
It is not entirely clear whether the contractual language purporting to make the license non-revocable would stand up to a legal challenge based on the automatic termination right granted by the U.S. copyright law or the argument that a CC license is a non-exclusive license made without consideration. In any event, it is probably safest to assume that a CC license is permanent, so you should think very carefully about whether or not you are happy with the public making use of your work in the way described in the license.
If I license or transfer my work, does it affect what I can do with the work?It depends. If you transfer all or one of your rights to someone else, then you may no longer exercise those rights. If you grant an exclusive license to someone with regard to a particular right or group of rights, then you are similarly prohibited from exercising those rights. But if you grant a non-exclusive license to someone else to exercise a right or group of your rights, then you are free to continue exercising the right or group of rights and authorizing others to do so. A CC license is a non-exclusive license, so granting the public a CC license does not affect your ability to use your work. For more information on what constitutes a "transfer," an "exclusive license," and a "non-exclusive license," please see the Understanding the Difference Between a Transfer and a License section.
Can others use my copyrighted work without being granted a license or transfer?Yes. United States copyright law allows others to make "fair use" of your work without permission. Under the fair use doctrine, third parties are permitted to use your copyrighted work without your permission for limited and "transformative" uses, including criticism, commentary, news reporting, parody, and teaching. For example, if a blogger quotes a paragraph from an article or post on your website and compares your opinion with that of other commentators, this is likely permitted by the fair use doctrine without a license. Nevertheless, fair use is a notoriously fact-sensitive defense to a copyright claim, and it is difficult to determine beforehand whether a particular use is a fair use. See the Fair Use section for more details. For this reason, many people may prefer to seek out a license before engaging in a use that might be a "borderline" fair use. When you grant someone permission to use your work via transfer or licensing, the idea is that you are permitting them to engage in a use that would not be "fair" under the law.
A transfer of copyright is a conveyance of ownership, much like the sale of personal property. When you transfer your entire interest in a copyrighted work, or one or more of your exclusive rights under copyright, you give up all claim to the right(s) you convey (except as explained in the Termination of a Transfer or a License section). The recipient of the transfered right(s) may:
A license is a grant of permission to exercise your rights under copyright. In copyright terminology, there are "non-exclusive" and "exclusive" licenses. When you give someone a non-exclusive license, you give the licensee permission to exercise the right in question, but you also reserve the right to continue exercising it yourself and to authorize others to do so. When you give someone an exclusive license, you promise that the licensee and only the licensee may exercise the right. This means that when you grant an exclusive license, even you may not exercise the granted right, nor may you authorize anyone else to do so.
Copyright law treats an exclusive license like a transfer. Therefore, the recipient of an exclusive license to a right or right(s) may:
The recipient of a non-exclusive license may exercise the right or rights licensed, but MAY NOT:
If you are the copyright owner of a work, you can transfer, or license others to exercise, some or all of the rights listed in Section 106 of the Copyright Act. These include:
For instance, say that you've uploaded an e-book that you have written to your website in PDF format. You could grant a user of your website permission to download and make copies of this book, but prohibit him or her from distributing your e-book to other people.
You can further limit the rights granted based on type of media, geographical effect, and time (among other possible criteria). Three illustrative examples follow.
The particular examples given above are not important, nor necessarily representative of all the possibilities. The point is that you have many options in how you choose to define the rights that you transfer or license. Because of this flexibility, crafting a license can be complex and may require the assistance of a lawyer to draft terms that reflect your specific preferences as to how other people use your work. On the other hand, a Creative Commons license gives you a great deal of flexibility in terms of choosing which rights to grant others and which to withhold, without the complexity of drafting your own agreement or the expense of hiring a lawyer.
Note: You can transfer (or grant an exclusive license to) all of the Section 106 rights together. By doing this, you transfer ownership of the "copyright" itself -- i.e., all rights in the work, except for the right of termination.
Below are three models or approaches to transferring or licensing your work that are relatively straightforward and therefore can be accomplished without the assistance of a lawyer. One caveat is that the first approach, the "all rights reserved" model, could be used in conjunction with sophisticated transfer/licensing transactions on a case-by-case basis, in which case the assistance of a lawyer would be more indispensable.
You might decide that, although you want to display your work online and/or distribute it to your users, you do not want to grant to those users any rights beyond those necessary for their personal consumption of your work. In that case, you could adopt the "all rights reserved" model. This approach is not really a transfer or a license -- rather it is an effort to limit the scope of the implied license you give to your users when you post and/or distribute your work.
All you need to do is affix the standard copyright notice to each page of your website (and/or to any other materials you distribute) and add a short statement indicating that you intend to reserve all your rights. For instance, you may affix to each page of your website the following statement: "Copyright © [Year], [your name or name of applicable entity], all rights reserved." If you are distributing a podcast, you might want to include a short statement at the beginning of the podcast indicating that you "reserve all rights" in it. As a general matter, you may want to alter the rights reservation statement on your site to indicate that you are reserving rights only in the content specifically created by you.
Displaying an "all rights reserved" notice will not prevent fair use of your work.
Note: the concept of an "all rights reserved" model is adapted from the Podcasting Legal Guide © 2006 Colette Vogele of Vogele & Associates, Mia Garlick of Creative Commons and the Berkman Center Clinical Program in Cyberlaw. This Guide was produced as part of the Non-Residential Fellowship Program of the Center for Internet & Society at Stanford Law School.
Creative Commons licenses give you the ability to allow some reuse and redistribution of your work by others without giving up all control. They are licenses that you grant to the public at large at no cost, and they specify to what uses the public may put your work. There are six main types of Creative Commons licenses to choose from, and they vary based on several factors, such as whether the licensee (the person to whom you give the license) can create derivative works (i.e., alter, remix, or build upon your work) and whether commercial redistribution of the work or its derivatives is permissible. They all require attribution - that is, the licensee must credit you as the author in the way you designate.
Note: the most recent 3.0 versions of these licenses are not specific about the form of attribution. As a matter of best practices, you may want to require that the attribution include the name of your site and/or organization and a link back to your site.
The process of choosing the license that fits your needs is automated on the CC website. Once you choose a CC license, applying it to your online work is simple. According to the CC FAQ:
Once you have selected your license, and if you are applying it to an online work, follow the instructions to include the html code in your work. This code will automatically generate the "Some Rights Reserved" button and a statement that your work is licensed under a Creative Commons license, or a "No Rights Reserved" button if you choose to dedicate your work to the public domain. The button is designed to act as a notice to people who come in contact with your work that your work is licensed under the applicable Creative Commons license. The html code will also be include the metadata that enables your work to found via Creative Commons-enabled search engines.
For an example of how this works, the Citizen Media Law Project (CMLP) has licensed the content of its website under a CC Attribution-ShareAlike 3.0 License, a notice about which is displayed at the bottom of every page of our website as a footer. It allows users to copy, distribute, and remix the CMLP's original content, so long as (1) it is attributed to the CMLP in the manner specified; (2) it is not used for a commercial purpose; and (3) adaptations are distributed under the same or similar license.
Before you apply a Creative Commons license to your website, you need to consider whether or not you are the copyright owner of the materials that appear on your website. You can only apply a CC license to materials that you have created or for which you have express permission of the copyright owner(s) to license under a CC license. If everything appearing on your website does not fit this criteria, you might consider applying a CC license to only some elements of your website, such as your text and photographic images, while not applying the license to other elements to which you may have a limited license, such as photographs taken by a colleague or ad-related material. In that case, it is critical that you identify which elements of your website are subject to a CC license and which parts are not. For a great page that discusses issues you need to think about before applying a CC license to your website or other copyrighted material, see CC's Things to Think About page.
One side benefit of using a CC license is that you can incorporate Creative Commons metadata into your website, allowing users to find your work through customized Creative Commons searches via Google or other search engines.
Licensing your work under a CC license does not preclude you from entering into a separate license agreement with someone else, for instance for using your work for commercial purposes. The details of such a license, including whether or not you could grant the licensee exclusive rights to distribute the work commercially, would depend upon what type of CC license you initially select. There are services such as Lisensa designed to work in tandem with CC licenses to display commercial license terms and automatically collect license fees. Lisensa, however, takes a 10% cut of all royalties and is also fairly limited in scope at the present time. You may want to consult a lawyer when dealing with the sometimes complicated intersection between CC licenses and commercial licenses.
For more detail on what constitutes a "commercial use" and a "non commercial use," please see CC's Discussion Draft Noncommercial Guidelines.
You may wish to dedicate all of your rights of copyright ownership in a work to the public. The public domain model could also be described as a "no rights reserved" model. You can do this by simply be putting a dedication notice on the work with language like "This work to which I own copyright is hereby released into the public domain" or "Everything on this site to which I/we own copyright is hereby released into the public domain." Alternatively, you can use a Creative Commons Public Domain Dedication.
The two sections listed below are mostly of academic interest if you choose one of the three models mentioned above, but they may be of more assistance if you choose to pursue transfer or licensing deals on a case-by-case basis. They give details about the formal requirements for a valid transfer or licensing contract, as well as information about the circumstances under which a copyright owner is entitled to terminate a transfer or license. These summaries of the law necessarily reduce some of the complexities involved, and readers are advised to consult with a lawyer when presented with issues of formal validity, consideration, and termination/revocation.
Transfers and Exclusive Licenses
A transfer or exclusive license of any or all rights under copyright must be in writing and signed by the owner of the rights conveyed (or the owner's duly authorized agent). The writing should describe the nature of the rights conveyed. As a copyright owner, you should specifically carve out any rights that you wish to retain in the work, especially with regard to exploitation of the work in new media or technological formats developed in the future. 17 U.S.C. Sec. 204(a).
The U.S. Copyright Office does not have any special forms for the contract through which you transfer right(s). Copyright law provides for the recordation of transfers of copyright ownership in the Copyright Office. Although recordation is not required to make a valid transfer between the parties, it provides certain legal advantages, and may be required to validate the transfer as against third parties. For more information on recordation of transfers and other documents related to copyright, see the Copyright Office's Circular 12: Recordation of Transfers and Other Documents.
Writing is not required for a non-exclusive license, because by defining a "transfer of copyright ownership" to exclude non-exclusive licenses, 17 U.S.C. Sec. 101 relieves non-exclusive license from the operation of U.S.C. Sec. 204(a). The grant of a non-exclusive license can be oral or inferred from conduct.
No writing is required for transfers of copyright "by operation of law." 17 U.S.C. Sec. 204(a). The Act does not specify what is meant by "by operation of law", but in general a copyright is conveyed "by operation of law":
Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property, as well as terms of contracts or conduct of business. For information about relevant state laws, consult an attorney.
Non-exclusive Licenses
Non-exclusive licenses do not require a writing in order to be valid, and the existence of a licensing arrangement can even be implied from conduct (an "implied license"). Your conduct may give rise to an implied license when it indicates that you intend to extend a license to those using your work, but you never agree to specific terms for the license. The user of your work acquires some right to use it, but only to the extent that you would have agreed to, had you negotiated an agreement.
Generally, the custom and practice of the relevant community or industry determine the scope of an implied license. For example, if you send a letter to a newspaper editor entitled "Dear Editor," under customary practice, the editor of the newspaper has an implied license to publish your letter in the newspaper. For more information about and examples of implied licenses in the Internet context, see Cyberspace Law for Non-Lawyers, Lesson 7 - Copyright 6.
Implied licenses may be important in situations where you hire a freelancer to create a work for you. Imagine, for example, that you hire a website designer to design your website. Neither of you knows much about copyright law, and you fail to agree (even orally) about who owns copyright to the designer's work. You would not own the copyright as a work made for hire because there is no written agreement (please see the Work Made for Hire section of the guide), but a court might still rule that you have an implied license to exploit the work for those uses reasonably within the contemplation of the designer at the time you both entered into the freelance arrangement (probably the right to reproduce and display the website, perhaps the right to create adaptations). Note that in this example, the web designer is the creator (and thus the owner) of the copyrighted work, and you are the person taking advantage of the implied license.
For another example, imagine that you prepare a weekly email newsletter that highlights your best postings for the week. This newsletter contains your copyrighted work (text, images, maybe video). If you email this to your subscribers, a court might find that you have granted them an implied license to share the newsletter with friends and colleagues through email forwarding.
As a general matter, it is a good idea to reduce a non-exclusive license arrangement to writing, just like an exclusive license or transfer. It helps you better protect your rights to the work, and allows you to structure your arrangement with licensees with greater clarity and precision. On the other hand, you might not want to bother users with a written license notice in the case like that of the email newsletter, so long as your subscribers' foreseeable uses don't particularly bother you.
Do I Have to Give or Receive Anything of Value to Make a Transfer or License Valid?In general contract law, the parties to a contract each have to give the other "consideration" in order to make the contract legally binding. "Consideration" is something that each party to a contract gives to the other party in exchange for that other party's promise or performance of the contract.
Transfers of rights under copyright, including exclusive licenses, do not require consideration in order to be valid. Therefore, while it is common for the transferee (the party obtaining the right or rights under copyright) to pay the copyright owner for the grant of rights, payment or other benefit is not required.
Nonexclusive licenses also do not require consideration in order to be valid. However, nonexclusive licenses are revocable (meaning the copyright owner can revoke the license at any time) in the absence of consideration. This means that, whether or not you set a fixed time limit for the duration of the non-exclusive license in the licensing agreement, you (as the copyright owner) can revoke the license at any point if you do not receive consideration for it. Conversely, if you (as the copyright owner) receive consideration in return for the grant of the license, then you cannot revoke the license unless you provide for revocation in the license agreement.
Note, however, that consideration for the grant of a license does not have to be something valuable, and it certainly does not have to be equivalent to the market value of the grant. Consideration is mostly a symbolic gesture. If the licensee gives up anything in exchange for the grant of the license, then that likely would qualify as consideration.
For works created after 1978, section 203 of the Copyright Act provides that the creator (or "author" in copyright terminology) of a work may terminate a transfer, exclusive, or non-exclusive license of any or all rights under copyright for that work during the five-year period:
To terminate a grant or license, you must serve notice of termination upon the grantee (the recipient of the transfer or license) or the grantee's successor in title (meaning the person or entity to whom the original grantee transfered his interest). The notice must be in writing and state the date of termination, which must fall within the five-year period outlined immediately above. You are required to serve the notice not less than two, nor more than ten, years before the termination date designated in the notice. Additionally, you need to file a copy of the notice with the Copyright Office prior to the termination date.
To be valid, a termination notice must comply with the form, content, and manner of service set out in the Copyright Regulations. You can find these regulations at 37 C.F.R. 201.10.
Joint Works, Works Made for Hire, and Deceased Authors
In case of a work of joint authorship, a grant executed by two or more joint authors may be terminated, pursuant to the section 203 of the Copyright Act, only if a majority of the joint authors who executed it agree to the termination. For more on works of joint authorship, see the Joint Authorship section.
When the creator of the work is deceased at the time of the five-year statutory period for termination discussed above, her successors in interest (surviving spouse and/or children; the executor, administrator, personal representative, or trustee in case there is no spouse or surviving children) may exercise the right of termination. The rules governing who owns what share of the termination interest and who must agree in order to effect termination are complex, and a lawyer's help will usually be necessary under these circumstances.
Works that qualify as works made for hire are not subject to termination by the employee or freelancer. For more on works made for hire, please see the Works for Hire section.
Note: Non-exclusive licenses granted without consideration can also be revoked at will, but it may be difficult to determine whether valid consideration has been granted. See the Creating a Written Contract to Transfer or License Rights Under Copyright section for details.