The Question of Memoir Ownership

I helped a restaurant owner start writing his memoir. He previously published a book on business development and leadership based on lessons learned in the restaurant business and his other successful enterprises including manufacturing, screen printing, and radio broadcasting. Now, he wanted to write about the challenges of his personal life including growing up in a dysfunctional family, a failed marriage, rebellious children, and health issues that nearly killed him.

We signed an agreement to conduct weekly recorded interviews, the transcripts of which I edited for his review and approval chapter-by-chapter. After four months he decided he wanted to go in a different direction and we agreed I could not take him there. According to our agreement, he paid me for the work I did and I turned over to him all of the recordings, transcripts, completed and draft chapters, and file folders of research materials. They belonged to him.

Who is the Writer and Who is the Author?
When you are writing a memoir for someone else, you are the writer and the other person is the author. You are helping the author create something that belongs to the author, even if you do not have a written agreement. If a memoir book is published it will be copyrighted in the author’s name, not yours, and you may not receive credit on the cover. Cover credit can be negotiated, though, as seen in books with an as told to or with line beneath the author’s name. If there is no cover credit for the writer, the author may mention the writer’s name in the acknowledgements section. Writer credit or not, the legal owner of the work and the materials used in creating it is the one in whose name the work is copyrighted. In the United States, copyright occurs immediately when an original work is written and does not depend upon copyright registration.

Some writers think because they are paid by the author they have created a work made for hire. Not necessarily. Work made for hire has specific limitations under United States Copyright law, including employer/employee relationships. Work made for hire is also known as corporate authorship, in which the employer is a corporation, organization, or individual. The completed work, be it a book, video, slide show, how-to manual, or software belongs to the employer. Microsoft’s Windows operating system is a useful example. Microsoft hired many programmers to develop the system and Microsoft is the legal owner.

The U.S. Copyright Act of 1976 
The United States Copyright Act of 1976 has two tests for work made for hire:
“(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, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” (17 U.S.C. § 101)

The work of a freelancer who writes memoirs is not considered work made for hire unless there is a signed instrument (agreement) the work is made for hire and the work falls within one of the limited categories in (2) above. 

For answers to frequently asked questions regarding copyright go to the Copyright Office website.  

For more on work made for hire see Works Made for Hire Under the 1976 Copyright Act.

File image.

What have been your experiences of ownership issues in writing memoirs? Let us know by selecting comments below or send an email.

No comments:

Post a Comment