Deciding Whether and How to License Your Content

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.

Making money from your work

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. For more, see Association Littéraire et Artistique International's Memorandum on Creative Commons Licenses.

Retaining control of your work

Retaining 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.


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