Shared Worlds

Some time ago, the Community for Creative Non-Violence, an advocacy group for the homeless, commissioned a Baltimore sculptor, James Earl Reid, to create a sculpture. In due time, his skilled hands produced a piece called Third World America, celebrating the dignity and suffering of homeless people. It was a work that both the advocacy group and the sculptor could be proud of, and they were. But then, as both began making plans to take it on tour, a question arose that nobody had bothered to explore in any depth: Who owns Third World America? The Community for Creative Non-Violence claimed the sculpture was a "work made for hire." Not only had the group hired the sculptor, but had also imparted to him its vision of what the piece should look like, and had even given him much input on details. Be that as it may, claimed Reid, he was the sole creator of the work and he should retain the copyright.

The dispute triggered a legal battle culminating in a Supreme Court decision that has important implications for writers. For, if you substitute "publisher" or "packager" for the group that hired Reid, "writer" for "sculptor," and "book" for "sculpture," you have a perfectly analogous relationship to one quite commonly found on the publishing scene. Under the "work-for-hire" provision of the Copyright Act of 1976, publishers, packagers, magazines, newspapers, and other persons or businesses may copyright in their own names works that they conceive and "farm out" to freelance writers. Like the Committee for Creative Non-Violence, these parties originate the writing projects, furnish writers with detailed specifications, and offer writers abundant editorial guidance. Are they not, then, entitled to claim ownership of copyright to those works? Are they not entitled to exploit those works in whatever way they wish, with no further obligation to the writers?

According to the Supreme Court, which ruled on the dispute on June 5, 1989, the answer is no. The decision was unanimous.

The court's ruling hinged not so much on the amount of time, effort, thought, vision, and money the advocacy group had invested in the sculpture, but rather on whether or not the artist could justly be described as an employee of the group that hired him. It seems that when Congress created the revised copyright law, it left the definition of work for hire somewhat ambiguous, describing it as "a work prepared by an employee within the scope of his or her employment." Had the sculptor gone to work on salary for a company that mass-produced plastic Buddhas, he would obviously have no claim to the product he helped to manufacture. But Reid's relationship to the organization that commissioned his sculpture was nowhere so simple, and his attorneys attacked the vagueness of the terms "employee" and "scope of employment."

"Under the broadest alternative," wrote Linda Greenhouse of the New York Times, "a freelance artist was an 'employee,' and therefore forfeited the right to copyright his or her work whenever the party commissioning the work, like a magazine publisher, retained the right to 'control' the final product." Greenhouse reported that a group of major publishers had filed a brief as friends of the Court, supporting this definition. That should come as no surprise, considering how much is at stake for them. Until the sculpture decision, most freelance work was considered work-for-hire. The result of the Supreme Court's decision, however, is that freelance writers and artists may enjoy, to a far greater extent than before, the benefits of copyright to the work they produce for others. "The fee that these businesses pay to a freelance artist will be a fee for one-time use of the work and not, as has been common practice, for the right to reprint and reuse the material without further compensation," stated Greenhouse.

Reid, the Court asserted, is an independent contractor and not an employee, and therefore his sculpture was not a "work made for hire." Because of the ambiguity of the origins of the work, however, the Court sent the case back to a lower court to consider whether the sculpture might fall into yet another category of copyright law, a joint work to which the copyright was owned by both claimants coequally.

It's interesting that this development comes at a time when the question of "moral rights" has begun to raise writers' consciousness about the status of freelance work they perform for outside contractors. I have speculated on the changes in the relationship between contractors and freelancers if American courts should adopt the principle that authors and artists are entitled to moral rights protection of their creations even though they have sold their copyrights to other parties. The Supreme Court's decision on Reid's sculpture is not a moral rights one, but it does give artists and writers a beachhead to wage further battles to protect work that they have sold—or thought they had sold—outright.

What seems to have been glossed over in the press's coverage of the sculpture battle is the extent of the contract between the commissioning party and the sculptor or, indeed, whether there was a written agreement at all. The relationship between the parties might not have stirred up such bitter conflict had they "perfected" it, to use a legal term, through a clearly worded contract in which the status of copyright ownership was spelled out. The deal between them, however, seems to have arisen in a spirit of good will and genuine compassion for the poor and homeless, but very little else in terms of a tightly structured contract. What seems to be implied in the Supreme Court's decision is, If you don't want any misunderstandings about ownership of copyright, you'd better write a good contract.

There are many cautionary lessons in this legal case that should be of particular interest to writers. For instance, inadequate grasp of the legal implications of arrangements writers make with book packagers has caused a great deal of grief for many authors. Book packagers copyright in their own name the projects they create, and writers they hire to develop those projects are denied proprietary interest in the work they perform for packagers. Packagers, in other words, are in a position analogous to that of the Community for Creative Non-Violence, the outfit that engaged the sculptor and subsequently claimed copyright ownership of the piece he did for them. "Packager" is, for some writers, a loaded term, connoting exploitation. I have stated elsewhere that I don't think there is anything inherently wrong with book packagers, but writers entering into contracts with them should do so with their eyes open and be aware of the nature of their relationship to packagers. There are fair packagers, not-so-fair packagers, and wicked packagers, but central to their activities is the copyrighting of literary creations in their own name. This process can be perceived as unfair if one party feels that he or she has been taken advantage of by the other.

Even harder for many writers to grasp are the implications of so-called shared-world series or anthologies. Shared worlds are generated out of popular books or series. The authors of these works, and their publishers, exploit the popularity of the books' characters by licensing or commissioning other authors to write new works featuring those characters and the world they live in. An example of this is the series of anthologies created in Andre Norton's Witch World.
These collections of stories by other authors extend and elaborate on the fantasy world originally created in a series of books by Norton. Shared worlds, though we don't always think of them that way, may be found in categories outside of science fiction and fantasy. In the male action-adventure genre, for example, authors created new stories for the world of The Executioner originally created by Don Pendleton. Hardy Boys and Nancy Drew novels were produced by writers for hire long after the deaths of the authors who created these characters. The sequel to Gone with the Wind, when you strip away all the hype, was essentially a shared-world novel.

A tremendous amount of confusion exists about shared worlds, and misunderstandings about the relationship between creator and sharers have caused strain and even enmity among formerly warm friends and colleagues when arguments over money, byline credits, and copyright ownership developed. Perhaps many of these problems would take a proper perspective if all parties realized a fundamental truth about shared worlds: the moment an author attempts to share his world with other authors, he becomes, in effect, a packager.
At the heart of most such grievances is that sudden change in the way sharers and "sharees" relate to each other. Writers who, up to then, were on what might be called a communistic parity with other writer comrades, suddenly become capitalists, and they don't always handle their new role very well. The tasks of apportioning money and credits produce conflicting feelings in authors who for so long have themselves struggled in the position of the exploited. "I felt," one writer told me, "like an assembly-line worker who had suddenly been made foreman. In negotiating contracts with authors sharing my world with me, I had to pull rank on some of my former co-workers, and none of us was happy about it."

Thanks to the Supreme Court's ruling, conflicts over money and credits may not be the only sources of contention between the participants in shared-world deals. Serious questions of ownership may be raised by contributors of material to shared-world series or anthologies. If you write a sequel or prequel to somebody else's novel, are you entitled to claim ownership, or co-ownership, of your contribution? Unless you clearly waived such a claim when you signed an agreement with the original author, the answer may well be debatable.

If you're not sure what's at stake, consider the lawsuit brought by Lynn Thomson, a dramaturg (a sort of script doctor for plays), against the estate of Jonathan Larson, author of the runaway Broadway hit musical, Rent. Before his tragic death, Larson had asked Thomson's advice on aspects of the show's script. Thomson subsequently claimed a co-authorship role entitling her to a share of the millions the Larson estate has earned, and will earn. In July 1997, a federal trial judge found that she was not a "joint author" under the U.S. Copyright Act, because she had not, in his opinion, contributed copyrightable material to the work, and because there was no evidence that she and Larson intended to be joint authors. Evidence—as in contract. The case is on appeal as of this writing, but whichever way it's decided, one could not ask for a more graphic illustration of the need to spell out the copyright implications of any arrangement, however casual, that authors make with those advising them on their texts.

Another ongoing lawsuit (at the time of this writing) concerns Fay Vincent, former commissioner of Major League Baseball. He was under contract to write his autobiography with a co-author, but presently thought better of publishing some revelations and decided to cancel the contract. His collaborator, however, claimed equal ownership of the manuscript under U.S. copyright law, meaning he has as much right as Vincent to bring out the memoir. The co-author's relationship to Vincent was apparently not writer-for-hire, but rather collaborator, and he does have a point. Another case of: Think before you share.

Up to now, too many authors have relied on the Golden Rule in reaching understandings with fellow authors about exploiting each other's worlds. If legal developments continue on the path they currently are following, it will be advisable to trade in the Golden Rule for an airtight contract.
- Richard Curtis

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in This Business of Publishing: An Insider's View of Current Trends and Tactics Copyright © 1998 by Richard Curtis. All Rights Reserved.