Copyright Chaos: Figuring Out Who Owns What in Today’s Tangled Publishing Jungle

It’s a jungle out there; know who owns the work you publish.

In 1976, Congress passed a revised copyright law that revolutionized creative ownership: From this point on, “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" would enjoy copyright protection automatically. In effect, if you made it, you owned it.

Would that it had remained that simple. In today’s market of ideas and services, ownership of creative properties can be maddeningly opaque. This is, was, and probably always will be the #1 question I’ve fielded from co-workers and clients: “Can we use that?”

The answer is usually, “No,” with a series of important “buts”:

But #1: Is it work-for-hire? As most freelancers and agency creatives know, when your contract includes a work-for-hire clause, it means you’ve signed away ownership of any and all creative product related to the contract. The client owns the work. Generally speaking, that includes both the final product and the files that went into its production.

But #2: Were additional rights negotiated? Most photographers and illustrators operate under the assumption that their work will be covered by First North American Reproduction Rights, meaning that the client is entitled to publish the artwork once in its preferred media (print and/or online). Should the client wish to use the artwork again, it must negotiate additional uses (and attendant fees) with the artist. However, savvy publishers will negotiate extra uses during the original artist engagement, usually securing those rights for a lower fee. Then, of course, there is the full rights buyout, in which the client negotiates full ownership of the artwork from the start. This kind of arrangement gets very expensive as most artists are loathe to sign away rights to their work — and future income — without a fight.

But #3: Is it royalty-free? Most stock artwork is purchased under a royalty-free agreement: The buyer is paying for free use of the item forever with a few important restrictions. For one thing, the license to use said artwork is non-transferable. So if you or your agency purchased that royalty-free image on behalf of your client, and the client asks if they can “have” the image for other purposes, the agreement forbids you from passing along the file. The workaround is for the client to license the artwork under its own name. And many royalty-free agreements now contain an editorial clause, meaning the artwork can’t be used for commercial purposes without the purchase of a separate license. It pays to read the fine print.

But #4: Is it generative AI? United States copyright law assumes that only creative works authored by humans can enjoy copyright protection. That means that your painstakingly prompted AI image or article or video can never be owned by anyone, including you. This is especially sensitive for digital publishers: Absent the protective layer of your editorial layout elements (your cover brand, for example), that AI image belongs to anybody who can screenshot or download it. Proceed at your own risk.

So what’s a conscientious publisher to do? If you’re not a lawyer, and you don’t want to consult one every time the issue comes up, how can you safely move forward?

1. Read the contract. Every creative agreement, including most artistic and royalty-driven ones, contains specific language that lays out exactly what you can and cannot do with that creative asset.

2. Ask. Most photographers and illustrators view additional usage fees as found money. While they may not (or they may!) give them away for nothing, they usually don’t want to hurt a business relationship by charging exorbitant fees.

3. Be sparing with your AI use. This should be standard publishing policy anyway; besides the inherent ownership problem, the audience backlash against generative AI is in full force. It hurts credibility, even when used in seemingly “victimless” ways. Save it for data analysis or research.

The best rule of thumb is to never assume. It pays to do the extra research — for your peace of mind, if nothing else, and because it’s the right thing to do. A magazine is a collaborative effort; many people own a little slice of it.