A quick review:
the moment you write a letter, draw a picture, compose a symphony, sculpt in clay, snap a photo, script a play, or scribble a doodle a copyright begins. All versions and drafts of your creative expression are protected at the moment of creation.
The author of an original creative work is the initial owner of all exclusive copyrights – that are inherent a creative work. Copyright law grants the author, five exclusive rights:
the exclusive rights:
– to reproduce the work;
– to distribute the work;
– to create new versions of the work;
– to publicly display the work;
– to publicly perform the work.
The “exclusive” nature of each copyright, affords a commercial advantage to the owner of an exclusive right.
CONTRACTING
Lets just say, I happen to have twelve dollars, when I walk into a classroom of twelve artists, where upon I see twelve very different creative expressions of the same idea (drawings of the scene outside the classroom window). Some expressions are colorful, some somber; some accurate, and a few abstract.
During my review of the twelve drawings I “perceive value” in one of the drawings.
I seize the moment, and attempt to make a contract for possession of the drawing. I make an “offer” to the artist for possession; my offer gives “consideration” to the artist (a dollar amount), and the artist gives “consideration” to me (possession”). The artist agrees to and “accepts” my offer and consideration.
“Contracting” is that simple: “offer”, “consideration”, and “acceptance”. (A simple food menu is: “offer” and “consideration”.)
Here is an interesting fact: the contract I just made with the art student was based on “perceive value”, not the actual material value of the physical paper and paint. (I reviewed twelve expressions of the same idea, and I “perceived value” in one of the artistic expressions).
Did I acquire any copyrights?
No. Copyrights are incorporeal rights; rights that are separate from the physical object. I was granted ownership of the physical object, but not any exclusive copyrights inherent to the object of art. There was no written instrument, signed by the parties, expressing transfer of any one or all copyrights (as required). The exclusive copyrights are all still vested with the artist.
My contract with the student was for physical ownership, no copyrights, and a license to privately display. Exclusive rights have not been expressed in a signed written agreement.
As a commercial artist, my typical client contract is a grant of a nonexclusive license to: reproduce, distribute, and publicly display (or perform). One big exception is a logo assignment.
Logos designs start as copyrighted works, as they are created, but once a final logo design is sold, all exclusive copyrights are transferred (in writing) to the client. I am no longer the owner of the logo’s exclusive copyrights. The client gets complete ownership of all exclusive copyrights inherent to the final logo design. The logo artwork can be circulated in the public as a protected trademark, identifying a business, service, or process.
When clients contracts for any “one” or “all” of the exclusive rights in a creative expression, the “consideration” given to the author may increase, because the original author has the commercial advantage of being the exclusive copyrights owner.
Typically, commercial clients only need nonexclusive licenses to the content I create; I grant nonexclusive licenses to reproduce, distribute, and publicly display (or perform) within a medium (television, print, web, radio, stage).
Is a license to “create new versions” granted? No, however…
In the commercial world of authors, illustrators, and photographers, some writers submit to editors; graphic designers, illustrators, photographers submit to art directors, cameramen have video editors, and musicians have audio engineers who may alter portions of the original expression. It appears, that a “nonexclusive license” to create new versions is granted among collaborating professionals.
A commercial photograph or illustration is destined to have some sort of text covering portions of the image, hence, a new version, with text, is expected. Without a written and signed agreement expressing a transfer of exclusive rights to create derivatives, it would appear that a nonexclusive license is granted to create limited new versions, along with a license to reproduce and distribute.
It would appear that a “meeting of the minds” is necessary when two parties contract for exclusive copyrights.
[Now this is a personal observation, but it has been my experience that a creative expressions’ best chance for integrity is with the original author. Like King Solomon, daring to slice a child in half, in order to determine the true mother between two women (because the true mother cares for the child). A creative expressions’ best chance for re-creation into new versions is best in the hands of the original author.]