Recently, one of my clients had an ownership issue over a ghostwritten article. A ghostwritten article is content that’s written by someone else, a ghostwriter, which you then post or publish as your very own. This article discusses who or what entity owns the copyrights to a ghostwritten article and ways to avoid pitfalls that may come up when working with ghostwriters.
The ownership of ghostwritten articles is governed by copyright law. Under US Copyright law, the ownership of ghostwritten articles and any other work is governed by 17 U.S.C. § 101 (“Section 101”). Under Section 101, only the author or those deriving rights from the author can rightfully claim copyrights to a particular work. So if an article – such as a ghostwritten article – is not written by you, then the ghostwriter may own the rights to the article.
To make the determination as to who owns the rights to works or ghost-written articles, we look to the definition of “a work made for hire” in Section 101. In certain cases, a ghostwritten article may be a “work made for hire.” Section 101 defines a “work made for hire” in two groups. Section 101 states that a “work made for hire” may be as follows:
1) a work prepared by an employee within the scope of his or her employment; or
2) a work specially ordered or commissioned for use
- as a contribution to a collective work,
- as a part of a motion picture or other audiovisual work,
- as a translation,
- as a supplementary work,
- as a compilation,
- as an instructional text,
- as a test, as answer material for a test,
- or as an atlas,
The above applies if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Based on Section 101, to determine if you own content written by a ghost writer, first you need to determine whether the ghostwriter is an employee writing content within the scope of her or his employment. To determine if your ghostwriter is an employee, one looks to agency law. Listed below are some factors to determine if a ghost writer would be an employee.
- Control by the employer over the work.
- Control by employer over the employee.
- Status and conduct of employer.
Second, if the ghostwriter is an employee, you would need to determine if the work was done within the scope of her or his employment. Scope of employment is typically defined as the range of activities and conducts that an employee is reasonably expected to perform as part of her or his job. Examples of works made for hire created in an employment relationship include the following:
- a software program created by a programmer within the scope of her or his duties at a software firm;
- a newspaper article written by a staff journalist for publication in the newspaper that employs the journalist (who is not a freelance writer);
- a musical arrangement written for a music company by a salaried arranger on the company’s staff; and
- a sound recording created by salaried staff engineers of a record company.
If you have determined that the ghostwriter is an employee and she or he wrote the ghostwritten article within the scope of her or his employment, then you or your business would be the owner of the copyrights to the article. Things get a bit trickier when the ghostwriter is not an employee, or the ghostwriter’s content was not written within the scope of her or his employment.
Let’s assume the ghostwriter did not write the ghostwritten content within the scope of her or his employment and was not an employee. In this case, the copyrights to the ghostwritten article would need to be transferred by a written agreement to you or your business. Practically speaking, it is much easier to get the ghostwriter to agree to transfer the rights to the ghostwritten article BEFORE you pay them.
If you are not able to get the ghostwriter to agree to transfer the copyrights to the ghostwritten content, arguments may exist that provide you with rights to the content. For example, one may be able to argue that you have ownership interest in the copyrights to the ghostwritten content because the work is merely part of a “collective work” or “compilation” in which you have ownership rights. However, this is where things tend to get messy. It’s best to try and avoid this scenario altogether, which is why we advise our clients to have a properly drafted agreement between you and the ghostwriter before the ghostwriter puts pen to paper.
Key Take Aways:
First, know the differences between an employee and an independent contractor.
Second, understand what is considered work done in the scope of employment at your place of business.
Lastly, when in doubt, have the ghostwriter agree in writing to transfer to you the rights to the ghostwritten content (preferably, before payment exchanges hands).
The attorneys at The Plus IP Firm have extensive experience in advising clients on copyright matters and litigating copyright disputes on behalf of copyright holders, businesses, and parties to copyright agreements. Copyright contracts are but one of the many legal tools we prepare for clients who want to protect their works of art, creation, business, and reputation. To learn more about The IP Plus Firm and how we protect our client’s intellectual property, please click HERE. This article was written by Dillon Kashat and Derek Fahey. To learn more about Derek Fahey, please click HERE.