Moral rights vs. work-for-hire

Responding to my post about the Google Book Settlement, a commenter mentioned that he hadn't claimed his translations because he had done them as work-for-hire, and it occurs to me that the way work-for-hire contracts will play out in the settlement is worth another few words.

In Britain and in Europe, authors own not only a copyright in their works but also moral rights to them. The idea of moral rights is an attempt to address the fact that works of art are not like, say, eggs or lumps of coal. The creator of a work of art cares about what happens to it, even after he's sold the right to publish it or display it or even own it, in a way that a keeper of chickens does not care about the fate of eggs, or a miner about the fate of coal. Unlike monetary rights, the moral rights to a work of art cannot be transferred.

American law does not similarly protect the moral rights of its authors. In fact, it has a legal convention called "work-for-hire" that is to moral rights what peonage is to citizenship. If you sign a contract with a "work-for-hire" clause, you agree that what you've written is a thing without any more integrity than a lump of coal, and that the purchaser can do whatever he wants to it, editorially, without any need to consult you, and that no matter how much or under what circumstances the work is republished, you have no rights to demand further payment. In my opinion, work-for-hire contracts are disreputable acts of force majeure on the part of publishers. Nonetheless, it is almost impossible for a novice writer to avoid signing them, and in the last few years, it has been difficult even for established writers to avoid them. To its shame, the New York Times insists that its freelance writers, including book reviewers, sign work-for-hire contracts, and even The New Yorker insists that shorter pieces like Talk of the Town essays and capsule reviews be works for hire.

But do you really lose rights forever in work because you signed a work-for-hire clause? Let me offer two counterexamples. More than a decade ago, I translated three pieces of Czech fiction for Catbird Press, which were published in an anthology titled Daylight in Nightclub Inferno. I don't remember whether my translation contract stipulated that it was work for hire; such terms are common with translations, alas, but the publisher of the press, Robert Wechsler, cared deeply about translation, so the contract might have been more generous. In any case, the book went out of print some years ago, and Catbird Press went out of business some time after that. As far as I know, the rights to the anthology were never sold to anyone before or after the press was shut down; certainly no new edition has appeared. So who owns the rights to my translations? Obviously the original authors own the rights to the underlying works of fiction. But the rights to the translations, I would argue, have reverted to me. Let me put it this way: no reputable publisher would try to reissue the book without negotiating some kind of arrangement with the authors and the translators, if they could be located. If they did, I would sic my agent on them in a New York minute. So I have placed a claim on the "inserts" in these books that correspond to my translations.

A second, perhaps more important example. I've published a number of short pieces of fiction over the years, but I've decided, in my own mind, that my work as a fiction writer officially begins with a novella that I published in the winter 2008 issue of the journal n+1. I'm not going to go from library to library ripping pages out of old journals and anthologies in order to erase my past, but I've nonetheless decided that the novella "Sweet Grafton" is opus 1, number 1, and that what came before should be quietly left behind to rot. Lately, though, I have begun to catch glimpses of earlier pieces of my fiction in the Google archive, digitized but not yet released to the public. I don't care about the money Google might make and withhold from me; I don't think there's any serious money to be made. But I don't want these pieces suddenly to become readily available. Did I sign away my control to these works, with work-for-hire contracts? Again, I don't remember, and again, I'd argue that it doesn't matter whether I did. Because even though American law doesn't respect an author's moral rights, the community of American publishing heretofore mostly has respected the most important among them. If Saul Bellow had mistakenly signed a work-for-hire contract on an early short story, would anyone have dared reprint it without his permission, or over his protests? No, they wouldn't have, because by doing so, such a publisher would call down upon himself the opprobrium of not only Bellow but all other writers who are careful about their presentation of their work—which is to say, all other writers that any reputable publisher might want to sign up. Google isn't part of that community, so it may not be subject to that kind of moral discouragement. And therefore I think this new settlement ought to allow authors to enforce some of their moral rights, whether or not the contract contained a work-for-hire clause. To get started as a writer, I was willing to write almost anything, sometimes under the most absurd terms, and Google is welcome to much of it without any interference from me. But what has my name on it, and took some of my artistry, even where the artistry didn't succed, I want to retain at least a veto over.

Comments

[Andrew Shields]

Thanks for this, too, Caleb. It makes me realize that "work-for-hire" is a technical term here, whereas I took it as a non-technical term! I'm not too picky about many of the translations I did not claim, but perhaps I should claim the complete books (as opposed to the art-catalogue translations), even if, legally, I am not allowed to do so. (Just as you said in your previous post, you may have done it wrong, but you did it anyway.)

[Caleb Crain]

And thanks for writing the comment that made me think further about it. For what it's worth, in the box on the claim form where you explain what part of the book you're claiming as an insert, I wrote that I was only claiming to have made the translation of the relevant excerpt. Of course I'm not a lawyer and don't even play one on TV. Good luck figuring it out.