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Suppose Alice writes a book. She hires Bob to be her editor. Bob catches spelling and grammar mistakes, and also rewords some passages to make them easier to read.

Eventually, Alice wants to sell her book. Had she written 100% of the book without any help, she would obviously be free to distribute it as she pleases. However, she hired Bob. Bob has not signed any contract explicitly waiving copyright--he merely accepted money in exchange for his editing services.

So, I'm wondering whether she needs Bob's permission to distribute the book, since Bob is also a contributor.

The jurisdictions of primary interest are the United States and Japan.

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  • 3
    Sounds like work-for-hire, no?
    – bdb484
    Jan 19 at 15:57
  • @bdb484 it sounds to me as though Bob is likely a contractor, not an employee.
    – phoog
    Jan 19 at 20:51
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    It's going to depend on the contract and the precise nature of Bob's contribution. Even if there is no written contract, Alice could claim that the terms of the transaction were governed by custom, advertised terms, usual practice, etc (similarly, while you're often required to sign something if you take your car to a garage or do any transaction online, there are still cases like if you pay someone to cut your hair there's no contract but there's still implied definitions of what both parties expect).
    – Stuart F
    Jan 19 at 21:40
  • @bdb484 see my answer on the question of whether the editor's contributions are a work made for hire. In short, almost certainly not. The question then becomes whether the work is a work of joint authorship, which depends on (among other factors) the nature of Bob's contributions and on the parties' intention.
    – phoog
    Jan 22 at 11:11
  • @phoog +1 I'm not sure I'm persuaded of your final analysis, but the more we dig, the clearer it becomes that the answer is not as straightforward as I thought.
    – bdb484
    Jan 22 at 13:28

3 Answers 3

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Under US copyright law, there are two questions that must be answered:

  • is the book is a work of joint authorship?
  • do the editor's contributions qualify as "work made for hire"?

For Bob to have a copyright interest in the work, the answer to the first question must be "yes" and to the second, "no."

On the question of joint authorship, see these model jury instructions from the ninth circuit:

A copyright owner is entitled to exclude others from copying a joint work. A joint work is a work prepared by two or more authors. At the time of the joint work’s creation, a joint work must have two or more authors, and:

  1. each author must have made a substantial and valuable contribution to the work;

  2. each author must have intended that [his] [or] [her] contribution be merged into inseparable or interdependent parts of a unitary whole; and

  3. each author must have contributed material to the joint work which could have been independently copyrighted.

Each author of a joint work shares an undivided interest in the entire joint work. A copyright owner in a joint work may enforce the right to exclude others in an action for copyright infringement.

Note the third point. Catching spelling and grammar mistakes probably does not rise to the level of "could have been independently copyrighted." Rewording might. This would likely require a factual determination (by a jury, or by a judge in a bench trial; more abstractly, the "finder of fact").

As to the second point, it's conceivable that the traditional understanding of the editorial relationship (or the parties' particular understanding of their relationship) was inconsistent with the requisite intention, but again this could easily be subject to a factual dispute that would have to be resolved by the finder of fact.

Contrary to another answer and some comments, the fact that the author "hired" the editor does not by itself make the editor's contributions a "work made for hire." This is also a factual determination that depends on several elements. First, there are two categories of work made for hire; the first applies to employees and the second to contractors. For the first, there is an eleven-element test. From the ninth circuit:

If the issue of the employment status of the work’s creator will be decided by the jury, the Supreme Court has suggested an eleven-factor test focusing on whether the creator of a work was an employee or an independent contractor under common-law agency principles. See Cmty. for Creative Non-Violence, 490 U.S. at 751-52. No single factor is determinative. Id. at 752. The following instruction may assist the determination of the employment status of the person creating the work at issue:

Factors Regarding Work for Hire

You should consider the following factors in determining whether the creator of the work in this case was an employee of the [name of party identified]:

  1. The skills required to create the work. The higher the skills required, the more likely the creator was an independent contractor rather than an employee.

  2. The source of the tools or instruments used to create the work. The more the creator had to use his or her own tools or instruments, the more likely the creator was an independent contractor rather than an employee.

  3. The location of where the work was done. The less the creator worked at [name of alleged employer’s work site], the more likely the creator was an independent contractor rather than an employee.

  4. Applicability of employee benefits, like a pension plan or insurance. The more the creator is covered by the benefit plans [name of alleged employer] offers to other employees, the less likely the creator was an independent contractor rather than an employee.

  5. Tax treatment of the creator by [name of alleged employer]. If [name of alleged employer] reported to tax authorities payments to the creator with no withholding or by use of a Form 1099, the more likely the creator was an independent contractor rather than an employee.

  6. Whether the creator had discretion over when and how long to work. The more the creator can control his or her work times, the more likely the creator was an independent contractor rather than an employee.

  7. Whether [name of alleged employer] has the right to assign additional projects to the creator. The more the creator could refuse to accept additional projects unless additional fees were paid, the more likely the creator was an independent contractor rather than an employee.

  8. Duration of the relationship between the parties. The more the creator worked on a project basis for [name of alleged employer], the more likely the creator was an independent contractor rather than an employee.

  9. The method of payment. The more the creator usually works on a commission or onetime-fee basis, the more likely the creator was an independent contractor rather than an employee.

  10. Whether the creator hired (or could have hired) and paid his or her own assistants. The more the creator hires and pays for his or her own assistants, the more likely the creator was an independent contractor rather than an employee.

  11. Whether [name of alleged employer] is a business. If the party that did the hiring is not a business, it is more likely that the creator was an independent contractor rather than an employee.

For a discussion of the weight of any of the eleven Reid factors, see JustMed, Inc. v. Byce, 600 F.3d 1118, 1125-28 (9th Cir. 2010) and Aymes v. Bonelli, 980 F.2d 857, 860-64 (2d Cir.1992).

The hypothetical is silent on many of these factors, but most likely nearly all of them weigh in favor of a determination that Bob is not an employee.

The other category of work made for hire applies to works made by contractors under conditions defined by statute at 17 USC 101. These conditions include "if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire," a condition that is explicitly absent from the hypothetical.

The answer, therefore, is that Bob might have a claim, should he choose to pursue it, but, depending on the nature of his contributions, he might be fairly unlikely to prevail.

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  • In addition to whether it's a work for hire, there's also the additional point in Trish's answer that the editor's contributions might not be considered creative enough to confer copyright ownership. Lots of their work may be closer to proofreading.
    – Barmar
    Jan 22 at 18:10
  • @Barmar which is precisely the question of whether the work is a "joint work" under US law, which is the first question considered in this answer . But Trish's answer doesn't use that term because Trish's answer concerns German law.
    – phoog
    Jan 23 at 1:21
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Bob is a copy editor (an editor exercises greater control over content, and is not hired by an author). Having been hired by Alice, his work is entirely covered by "work for hire", meaning that his contribution is credited to his employer. The line between copy editor and ghost writer is not well-defined, but at some point Bob is really the author though by contractual agreement copyright is transferred to Alice (more likely, the publisher who hired him).

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  • It's only work made for hire under US law if Bob is Alice's employee, which he probably isn't, or the contract specifies that it is work made for hire, which the question suggests is not the case.
    – phoog
    Jan 19 at 20:52
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    @phoog The question says "She hires Bob". Doesn't that make Bob Alice's employee?
    – Barmar
    Jan 20 at 16:11
  • @Barmar no. One also "hires" contractors. If you look at the tests used to determine whether there is an employment relationship for the purpose of copyright law, it's clear that a freelance editor is not an employee.
    – phoog
    Jan 22 at 9:17
  • @Barmar I've added an answer listing eleven factors to be taken into account in determining whether the hired party is an employee under US copyright law. It doesn't look likely.
    – phoog
    Jan 22 at 10:55
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Lectors are not authors. A Herausgeber is.

An intricacy of German publication setups results in a split of editors: the Lector (from latin: reader) is an editor who proofreads a work, makes grammar fixes, and advises or suggests changes to the author. However, that is not considered Urheberschaft, even in part, as it is deemed to not rise to the level of creativity required for copyright. The key word here is "Schöpfungshöhe".

An editor who collects works from others in his work, such as the editor of a newspaper, becomes one of the authors of the compiled work that is the finished product. They have some copyright in the compilation (but not the individual parts of it) and are denoted as Herausgeber. Besides an editorial, this type of editor shows creativity beyond the required minimum level by exercising the choices what parts to include or reject.

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