Below are three models or approaches to transferring or licensing your work that are relatively straightforward and therefore can be accomplished without the assistance of a lawyer. One caveat is that the first approach, the "all rights reserved" model, could be used in conjunction with sophisticated transfer/licensing transactions on a case-by-case basis, in which case the assistance of a lawyer would be more indispensable.
You might decide that, although you want to display your work online and/or distribute it to your users, you do not want to grant to those users any rights beyond those necessary for their personal consumption of your work. In that case, you could adopt the "all rights reserved" model. This approach is not really a transfer or a license -- rather it is an effort to limit the scope of the implied license you give to your users when you post and/or distribute your work.
All you need to do is affix the standard copyright notice to each page of your website (and/or to any other materials you distribute) and add a short statement indicating that you intend to reserve all your rights. For instance, you may affix to each page of your website the following statement: "Copyright © [Year], [your name or name of applicable entity], all rights reserved." If you are distributing a podcast, you might want to include a short statement at the beginning of the podcast indicating that you "reserve all rights" in it. As a general matter, you may want to alter the rights reservation statement on your site to indicate that you are reserving rights only in the content specifically created by you.
Displaying an "all rights reserved" notice will not prevent fair use of your work.
Note: the concept of an "all rights reserved" model is adapted from the Podcasting Legal Guide © 2006 Colette Vogele of Vogele & Associates, Mia Garlick of Creative Commons and the Berkman Center Clinical Program in Cyberlaw. This Guide was produced as part of the Non-Residential Fellowship Program of the Center for Internet & Society at Stanford Law School.
Creative Commons licenses give you the ability to allow some reuse and redistribution of your work by others without giving up all control. They are licenses that you grant to the public at large at no cost, and they specify to what uses the public may put your work. There are six main types of Creative Commons licenses to choose from, and they vary based on several factors, such as whether the licensee (the person to whom you give the license) can create derivative works (i.e., alter, remix, or build upon your work) and whether commercial redistribution of the work or its derivatives is permissible. They all require attribution - that is, the licensee must credit you as the author in the way you designate.
Note: the most recent 3.0 versions of these licenses are not specific about the form of attribution. As a matter of best practices, you may want to require that the attribution include the name of your site and/or organization and a link back to your site.
The process of choosing the license that fits your needs is automated on the CC website. Once you choose a CC license, applying it to your online work is simple. According to the CC FAQ:
Once you have selected your license, and if you are applying it to an online work, follow the instructions to include the html code in your work. This code will automatically generate the "Some Rights Reserved" button and a statement that your work is licensed under a Creative Commons license, or a "No Rights Reserved" button if you choose to dedicate your work to the public domain. The button is designed to act as a notice to people who come in contact with your work that your work is licensed under the applicable Creative Commons license. The html code will also be include the metadata that enables your work to found via Creative Commons-enabled search engines.
For an example of how this works, the Citizen Media Law Project (CMLP) has licensed the content of its website under a CC Attribution-ShareAlike 3.0 License, a notice about which is displayed at the bottom of every page of our website as a footer. It allows users to copy, distribute, and remix the CMLP's original content, so long as (1) it is attributed to the CMLP in the manner specified; (2) it is not used for a commercial purpose; and (3) adaptations are distributed under the same or similar license.
Before you apply a Creative Commons license to your website, you need to consider whether or not you are the copyright owner of the materials that appear on your website. You can only apply a CC license to materials that you have created or for which you have express permission of the copyright owner(s) to license under a CC license. If everything appearing on your website does not fit this criteria, you might consider applying a CC license to only some elements of your website, such as your text and photographic images, while not applying the license to other elements to which you may have a limited license, such as photographs taken by a colleague or ad-related material. In that case, it is critical that you identify which elements of your website are subject to a CC license and which parts are not. For a great page that discusses issues you need to think about before applying a CC license to your website or other copyrighted material, see CC's Things to Think About page.
One side benefit of using a CC license is that you can incorporate Creative Commons metadata into your website, allowing users to find your work through customized Creative Commons searches via Google or other search engines.
Licensing your work under a CC license does not preclude you from entering into a separate license agreement with someone else, for instance for using your work for commercial purposes. The details of such a license, including whether or not you could grant the licensee exclusive rights to distribute the work commercially, would depend upon what type of CC license you initially select. There are services such as Lisensa designed to work in tandem with CC licenses to display commercial license terms and automatically collect license fees. Lisensa, however, takes a 10% cut of all royalties and is also fairly limited in scope at the present time. You may want to consult a lawyer when dealing with the sometimes complicated intersection between CC licenses and commercial licenses.
For more detail on what constitutes a "commercial use" and a "non commercial use," please see CC's Discussion Draft Noncommercial Guidelines.
You may wish to dedicate all of your rights of copyright ownership in a work to the public. The public domain model could also be described as a "no rights reserved" model. You can do this by simply be putting a dedication notice on the work with language like "This work to which I own copyright is hereby released into the public domain" or "Everything on this site to which I/we own copyright is hereby released into the public domain." Alternatively, you can use a Creative Commons Public Domain Dedication.
The two sections listed below are mostly of academic interest if you choose one of the three models mentioned above, but they may be of more assistance if you choose to pursue transfer or licensing deals on a case-by-case basis. They give details about the formal requirements for a valid transfer or licensing contract, as well as information about the circumstances under which a copyright owner is entitled to terminate a transfer or license. These summaries of the law necessarily reduce some of the complexities involved, and readers are advised to consult with a lawyer when presented with issues of formal validity, consideration, and termination/revocation.
Transfers and Exclusive Licenses
A transfer or exclusive license of any or all rights under copyright must be in writing and signed by the owner of the rights conveyed (or the owner's duly authorized agent). The writing should describe the nature of the rights conveyed. As a copyright owner, you should specifically carve out any rights that you wish to retain in the work, especially with regard to exploitation of the work in new media or technological formats developed in the future. 17 U.S.C. Sec. 204(a).
The U.S. Copyright Office does not have any special forms for the contract through which you transfer right(s). Copyright law provides for the recordation of transfers of copyright ownership in the Copyright Office. Although recordation is not required to make a valid transfer between the parties, it provides certain legal advantages, and may be required to validate the transfer as against third parties. For more information on recordation of transfers and other documents related to copyright, see the Copyright Office's Circular 12: Recordation of Transfers and Other Documents.
Writing is not required for a non-exclusive license, because by defining a "transfer of copyright ownership" to exclude non-exclusive licenses, 17 U.S.C. Sec. 101 relieves non-exclusive license from the operation of U.S.C. Sec. 204(a). The grant of a non-exclusive license can be oral or inferred from conduct.
No writing is required for transfers of copyright "by operation of law." 17 U.S.C. Sec. 204(a). The Act does not specify what is meant by "by operation of law", but in general a copyright is conveyed "by operation of law":
Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property, as well as terms of contracts or conduct of business. For information about relevant state laws, consult an attorney.
Non-exclusive Licenses
Non-exclusive licenses do not require a writing in order to be valid, and the existence of a licensing arrangement can even be implied from conduct (an "implied license"). Your conduct may give rise to an implied license when it indicates that you intend to extend a license to those using your work, but you never agree to specific terms for the license. The user of your work acquires some right to use it, but only to the extent that you would have agreed to, had you negotiated an agreement.
Generally, the custom and practice of the relevant community or industry determine the scope of an implied license. For example, if you send a letter to a newspaper editor entitled "Dear Editor," under customary practice, the editor of the newspaper has an implied license to publish your letter in the newspaper. For more information about and examples of implied licenses in the Internet context, see Cyberspace Law for Non-Lawyers, Lesson 7 - Copyright 6.
Implied licenses may be important in situations where you hire a freelancer to create a work for you. Imagine, for example, that you hire a website designer to design your website. Neither of you knows much about copyright law, and you fail to agree (even orally) about who owns copyright to the designer's work. You would not own the copyright as a work made for hire because there is no written agreement (please see the Work Made for Hire section of the guide), but a court might still rule that you have an implied license to exploit the work for those uses reasonably within the contemplation of the designer at the time you both entered into the freelance arrangement (probably the right to reproduce and display the website, perhaps the right to create adaptations). Note that in this example, the web designer is the creator (and thus the owner) of the copyrighted work, and you are the person taking advantage of the implied license.
For another example, imagine that you prepare a weekly email newsletter that highlights your best postings for the week. This newsletter contains your copyrighted work (text, images, maybe video). If you email this to your subscribers, a court might find that you have granted them an implied license to share the newsletter with friends and colleagues through email forwarding.
As a general matter, it is a good idea to reduce a non-exclusive license arrangement to writing, just like an exclusive license or transfer. It helps you better protect your rights to the work, and allows you to structure your arrangement with licensees with greater clarity and precision. On the other hand, you might not want to bother users with a written license notice in the case like that of the email newsletter, so long as your subscribers' foreseeable uses don't particularly bother you.
Do I Have to Give or Receive Anything of Value to Make a Transfer or License Valid?In general contract law, the parties to a contract each have to give the other "consideration" in order to make the contract legally binding. "Consideration" is something that each party to a contract gives to the other party in exchange for that other party's promise or performance of the contract.
Transfers of rights under copyright, including exclusive licenses, do not require consideration in order to be valid. Therefore, while it is common for the transferee (the party obtaining the right or rights under copyright) to pay the copyright owner for the grant of rights, payment or other benefit is not required.
Nonexclusive licenses also do not require consideration in order to be valid. However, nonexclusive licenses are revocable (meaning the copyright owner can revoke the license at any time) in the absence of consideration. This means that, whether or not you set a fixed time limit for the duration of the non-exclusive license in the licensing agreement, you (as the copyright owner) can revoke the license at any point if you do not receive consideration for it. Conversely, if you (as the copyright owner) receive consideration in return for the grant of the license, then you cannot revoke the license unless you provide for revocation in the license agreement.
Note, however, that consideration for the grant of a license does not have to be something valuable, and it certainly does not have to be equivalent to the market value of the grant. Consideration is mostly a symbolic gesture. If the licensee gives up anything in exchange for the grant of the license, then that likely would qualify as consideration.
For works created after 1978, section 203 of the Copyright Act provides that the creator (or "author" in copyright terminology) of a work may terminate a transfer, exclusive, or non-exclusive license of any or all rights under copyright for that work during the five-year period:
To terminate a grant or license, you must serve notice of termination upon the grantee (the recipient of the transfer or license) or the grantee's successor in title (meaning the person or entity to whom the original grantee transfered his interest). The notice must be in writing and state the date of termination, which must fall within the five-year period outlined immediately above. You are required to serve the notice not less than two, nor more than ten, years before the termination date designated in the notice. Additionally, you need to file a copy of the notice with the Copyright Office prior to the termination date.
To be valid, a termination notice must comply with the form, content, and manner of service set out in the Copyright Regulations. You can find these regulations at 37 C.F.R. 201.10.
Joint Works, Works Made for Hire, and Deceased Authors
In case of a work of joint authorship, a grant executed by two or more joint authors may be terminated, pursuant to the section 203 of the Copyright Act, only if a majority of the joint authors who executed it agree to the termination. For more on works of joint authorship, see the Joint Authorship section.
When the creator of the work is deceased at the time of the five-year statutory period for termination discussed above, her successors in interest (surviving spouse and/or children; the executor, administrator, personal representative, or trustee in case there is no spouse or surviving children) may exercise the right of termination. The rules governing who owns what share of the termination interest and who must agree in order to effect termination are complex, and a lawyer's help will usually be necessary under these circumstances.
Works that qualify as works made for hire are not subject to termination by the employee or freelancer. For more on works made for hire, please see the Works for Hire section.
Note: Non-exclusive licenses granted without consideration can also be revoked at will, but it may be difficult to determine whether valid consideration has been granted. See the Creating a Written Contract to Transfer or License Rights Under Copyright section for details.