Re: Styles for User Guides

[Judyth Mermelstein <Judyth_Mermelstein -at- BABYLON -dot- MONTREAL -dot- QC -dot- CA>]

First, the disclaimer:
I am not a lawyer; I am a person who has been reading up on copyright
issues over the past few years. This message is not legal advice--please
see your own lawyer before drafting or signing important contracts.
******************************************

There is no simple answer to the "who owns what" question. It depends,
among other things, on where the parties are geographically, the extent
to which the "what" is an original creation (as opposed to a copying of
material copyrighted by somebody else), and the nature of the
relationship between the parties. A few points may help in thinking
about the issue:

1- Microsoft and other companies supply templates for the creation of
documents, means to modify those templates, etc., as part of the software
covered by the licences to users. A slightly modified copy of one of those
templates is still a **copy** rather than an original work. If it came to
court, the person or company who did the modifying  and tried to sell the
results would probably be considered to have rights in the results only to
the extent that the modifications represented substantial original work--
i.e., not much. The same is true of graphics, Web sites, paintings, and
written matter: if you have taken somebody else's work and simply rung
changes on it, you can be sued by the owner of the rights in that work.
That's one of the bases for those "look and feel" lawsuits, for rules about
plagiarism in academic and artistic circles, and so on. It's no different for

templates or documentation.

2- Normally, all rights or some rights (it's complicated and I won't try to
detail this) remain with the person who creates the new copyrightable thing,
whatever it may be, unless:
a) that person is in the employ of another party under terms which specify
that some or all of those rights become the property of the employer;
b) that person specifically sells, licences, transfers or assigns some or all

of his/her rights to another party who may or may not be his/her employer;
c) there is some kind of evidence that the terms of the contract (not
necessarily written or specific) between the two parties was intended to
include the passing of the rights from the actual creator to the other party
(i.e., proof that the practice is the norm in a given place and industry may
be taken into account).

Depending on the nature of your arrangement with a given client, you may be
considered to have created the thing on his behalf, or under an agreement
which sells the rights in it, or to have retained some or all rights over it.


In Canada, for example, an artist who sells a sculpture to a shopping mall is

selling the object itself and the right to display  it, but NOT the right to
modify it: the case is _Snow vs. The Eaton Centre_, 1982. Similarly, the
author of a translation (made with the permission of the original author
or the owner of the rights to it) normally retains all rights in the
translation other than those which are specifically sold or transferred to
others; a contract with a publisher may specify which rights, or even say
"all rights" without limiting the translator's rights in other respects,
such as the "moral right" not to have the translation massacred or
plagiarized by that publisher or anyone else.

3- Strictly speaking, copyright (U.S., Canadian or European) covers the
creator's rights in an original creation of content and arrangement. That
is, to be copyrightable, a document must represent original work by its
author as to what it says and how. Normally, this does NOT cover things
like fonts and margin settings or use of white-space. There might be an
exception in the case of "concrete poetry" and there would be an
exception in (for example) layout design of a magazine. A template
is covered as part of the ensemble of the program; it would not normally
be copyrightable in and of itself.  A document produced using a template
(or a variation on one) is copyright as to contents, not how it was
produced: if you convert it to another format, or retype it by hand, or
post it on the Web, it's still the property of its creator and you are
infringing copyright.

4- On the other hand, a person who designs a layout (by hand or using a
computer) creates something else that is copyrightable: if the layout is
produced in "fixed form" (a drawing, printout, archived PDF file or
whatever), THAT is a copyrightable work and other people can't use
it or modify it without permission. I would assume, based on the laws
I've read as well as common sense, that the copyright does not include
the copyright to the crayons or software used to create that layout; in
fact, it's irrelevant whether you own the software or crayons yourself,
or borrowed or stole them, or used your employer's. (The *paper* may
be another matter... which I won't get into.)

5- Then we get into the much stickier issue of whose time and talent went
into the creation. If I am a layout artist employed by a magazine to create
its layouts according to the instructions of its staff, even if my contract
doesn't say so explicitly, the courts would probably consider that
the layouts I create in that context belong to my employer. It would
probably be seen the same way under U.S. law if I performed the work as
"work for hire". But--clearly under Canadian law, less so under U.S. law
--if I as a freelancer am asked to create a layout on my own time with my
own materials and talents, I am not transferring all rights to that layout to

my client unless we agree to do so; if we don't, I am free to use it for
other
purposes as long as these do not cheat the client out of the *use* he paid
for
--say, for example, the use of that layout for a given issue of a magazine,
or for all future issues of that magazine, or even for the use of that layout

in all magazines put out by the same publisher. It would be up to the
publisher and myself to determine exactly what is being covered by
our agreement, whether it includes exclusivity of use, and how much I will
be paid for the work--for the uses covered, NOT for the hours I spent,
since it doesn't  matter to the client whether it took me 8 hours or 20
minutes as long as it's  good, on time, and suited to the use for which it
was
intended. The same standards would apply if I were freelancing as a computer
programmer rather than a layout designer: it would be a matter for
negotiation between me and my client whether I am creating a program for
 the client (i.e., on his behalf and for his exclusive benefit) or whether I
am creating my own program which I am authorizing the client to use.

To me, a template is a kind of mini-program or mini-layout (depending
on how it is implemented. If I create it from scratch, it is MY property
unless I have agreed otherwise. If I create it by modifying something
which is in the public domain (say,  a piece of freeware), it may
not be entirely original but it would probably be considered mine since
nobody would contest my rights in it.

If I create it by changing a few settings of a standard software template,
it probably doesn't qualify for copyright in the first place (not original)
and should probably be considered an add-in to the program since one must
have the program to use the template. If I *copy* the look of an existing
template to any recognizable extent without its creator's consent, and
make a template in another program, it's still not an original work
and it still doesn't belong to me--or anyone who hires me to do this--
the creator of the original or the current owner of his rights still
has legal recourse for plagiarism against me AND the party which hired
me to plagiarize, if any.

In short, then, I am not entitled to sell a work or the use of a work to
anybody else unless it is genuinely my own work, and I am not
immune from pursuit for copyright infringement just because I did
it at the behest of an employer or client. However, if a work IS my
own, I am entitled to decide what happens to it, whether by entering
into a contract to create it for somebody else or by entering into one
after the fact. If I have agreed that this work or all my work created
within the scope of a given contract will belong to my employer,
that's that--but I'm still liable if it's not my own to dispose of. If
I have not ceded (any or all of) my rights one way or another to
somebody else, those not ceded are still mine and I'm solely
responsible for the work in question.  In any case, it is up to
ME as an individual not to infringe the copyrights of others and
to take the necessary steps to protect my own.

Without wanting to run on any longer than I have already, I would
suggest that any contract, written or oral (but preferably the
former in all cases), whether for employment or TW contracting
or as a freelancer, should specify exactly what it is meant to
cover. Often, the individual is presented with a "standard
agreement" written to favour the other party in every respect,
and must decide whether or not to risk losing the work by
negotiating over particular provisions. Just as often, the other
party specifies roughly what they want and how much they are
willing to pay but has no clue about issues like copyright and
may simply assume that you must do whatever they ask for,
regardless of legality, but remain suable if what they want
leads to legal problems. Either way, it is incumbent on the
professional individual to ask for written clarification of his
or her rights and responsibilities, and to know what is
involved before accepting a particular project or setting the
rate. We can't use "but the boss told me to" as an excuse or
claim after the fact that we thought we signed a contract to
licence our work to the client while the client thought he signed
one to purchase all rights in perpetuity for the cost of a "temp".

PREDICTION: Over the next ten years, most of us are going to
become unlicenced paralegals in the effort to deal with these
issues.

Regards,

Judyth Mermelstein  ***  <pilcrow -at- iname -dot- com>
Montreal, QC              ***  "cogito ergo lego ergo cogito ..."

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