by D.M. Atkins
Anyone who is buying rights to your art, photography, writing, or any other creative product, who doesn’t exchange a written agreement with you defining the limits of that agreement is, at best, ignorant and reckless and, at worst, extremely unprofessional and probably taking advantage of you. Agreements not only protect the publisher, but they also protect the creators of artistic products as well. If a publisher uses and/or distributes creative work without checking for creator’s identity and rights, they may inadvertently enable plagiarism.
As a creator of works, you need the protection of a written agreement to clearly define what rights you are selling/leasing and to whom. For example, if you sold someone the rights to use your photograph or other art, what if they turned around and began reselling those images to others on a stock photo site? What if they claimed your work was made by them? Do you still have the right to post them as examples of your work? Did you sell them the copyright itself or just license to use your work?
To make this type of exchange legally valid, the publisher requires the legal name of the person with whom they are making the agreement and proof of their ownership of the property in question. This was true before the internet, but it is even more so now, as identity theft and online fraud are rampant. Recent controversies over authors who have committed fraud have forced us to be even more careful. (Due to recent cases of author fraud, we now require copies of a photo ID to verify the name of the person with whom we sign a contract.)
Additionally , in the U.S. at least, when a monetary transaction is made for a product’s usage and distribution rights, the paying party needs the tax ID number of the person receiving the funds since the buyer can be held liable by the IRS for those taxes. Being paid via Paypal or in cash does not absolve you from paying these taxes. Paypal now requires a tax ID specifically for this reason. We can only pay out $10 in royalties before we are legally required to send both the payee and the IRS a 1099 for that year.
Hypothetically, let’s say someone was providing cover art for us, and we didn’t have a contract for that art. A year later, after the work has been on sale, someone files a lawsuit claiming copyright infringement for the use of their art. If it turns out that the art was stolen (used without permission) from another artist, we would not have a contract to show what rights we had purchased. In addition, if we didn’t verify the artist’s legal name, we might have been given a false name, all of which would leave us legally responsible and vulnerable for the copyright infringement.
If we purchased a cover made from photos by a cover artist, but the artist didn’t have the correct rights to use those photos, we could be legally liable. Again, to protect ourselves, we would need to be able to show that we purchased the cover art in good faith from an individual whose name we verified, along with their rights to use the original photos.
If we signed an author and published a story only to find out later that the author had plagiarized someone else’s story and submitted it as one of their own, a court could hold us liable unless we have these proper supporting documents. If the original owner sued us, we would need to be able to provide the contract with the legal name of the person who sold us the plagiarized work.
This happened to me as a teenager in the first year I ran a magazine. My “friend” had given me a story to publish. I was surprised and happy that my friend wrote so well. It turned out that he had copied the story from an old magazine. When it came out who the real author was, I was lucky to have my friend’s release agreement, so the real author didn’t sue me.
Any business who publishes work without knowing the legal name of the person who owns the work and lacks a written contract for the work is NOT to be trusted. In my opinion, it is not just legally risky, it is unethical.
How to read a contract: http://accrispin.blogspot.com/2014/12/thoughts-post-toast-or-why-you-should.html
An IP and contract lawyer’s entries about contracts: http://www.thepassivevoice.com/category/contracts/
Unwritten author contracts: http://www.seqlegal.com/blog/unwritten-author-contracts