Exclusive Use Clauses

These clauses deal with exclusive use: language that gives away an exclusive right -- and therefore is sometimes said to create an “assignment” of the right -- so that the author him or herself loses the right.

These are some of the most important clauses, for it is through exclusive right assignments that an author gives up all of his or her rights.

Jump to examples of: Creator-Friendly Clauses, Could-Be-Worse Clauses, Creator-Unfriendly Clauses, Overreaching Clauses

These are clauses whose language is most generous to authors, and we consider them creator-friendly.

CLAUSE:: You may at all times use and distribute original printed copies or photocopied duplicates of the Article, or any portion thereof, as it appeared in the [journal], whether for personal, professional, or teaching purposes. You also have the right to reprint or republish the Article, or any portion thereof, in any book or article that you may write or contribute to, but if you do so, you must comply with the provisions of Paragraphs 3, 5, and 8 of this Agreement.
EXPLANATION:: This is a contract for publication of an article in a scholarly journal (law review). Section 3 of the contract gave the publisher the exclusive right to publish the work for one year. Section 5 gave the publisher the right to upload a copy of the article onto legal databases. Paragraph 8 set out how the journal should be credited if the author subsequently publishes all or part of the article somewhere else. During the one year of the publisher's exclusivity, the contract nonetheless allows the author to make and distribute photocopies of the article (as published in the journal) to the author's students or for other professional and personal purposes. (The contract does not allow the author to distribute the article over digital media during the one year of the publisher's exclusivity.) After the one year, the author retrieves her exclusive rights to publish the work anywhere, in any format, but she must credit the original publisher, and the journal may license the inclusion of the article in legal databases.

Clause Type:

For:

Visual Artists

CLAUSE:: (a) Freelancer hereby grants to Company the following rights in each Work [a drawing] throughout the world: (i) The exclusive first right to publish the Work, which exclusivity lasts from the date hereof until ninety (90) days beyond the U.S. cover date of the issue of the Publication in which the Work is first published (and for cover-art drawings, one calendar year). In instances where a Work (or any part thereof) is first disseminated on a Company affiliated Web site or service prior to appearing in a print issue of a publication, Company's exclusivity period shall continue through the above-specified applicable time period after the on-sale date of the print issue of the publication. Freelancer will not allow anyone else to publish or use the Work or any portions thereof for any purpose until the applicable exclusivity period has expired.
EXPLANATION:: This is a contract to publish a drawing in a major magazine. The rights granted cover the whole world and extend to all media now known or later developed. (a)(i). The artist grants exclusive first publication rights; she may not republish or reuse the drawing until 90 days after the [U.S. cover date for printed publications, which may be different from the on-sale date. If the drawing was used online prior to the first printing of the publication, the 90 day exclusivity window starts on the on-sale date of the print issue.] ~~magazine (in print format) goes on sale.~~ If the drawing is used as the cover, the artist must wait a year before republishing elsewhere.

CLAUSE:: (ii) Freelancer also grants Company, for the full term of copyright, the non-exclusive right to publish, print, republish, reprint and use the Works, the unrestricted right to use any cover containing the Works for any purpose at any time, the right to make and authorize the making of reprints or stand alone copies of the article or feature including the Works for any purpose, the right to authorize the use of the Works as shown in the applicable publication as set dressing or otherwise in movies, television shows, and other productions, and in addition, the right to use the Works and/or Freelancer's name and likeness in publishing, promoting, advertising and publicizing the publication(s)and services in which the Works appear, and in merchandising.
EXPLANATION:: (ii). After the period of exclusivity has passed, the magazine receives, for the full term of copyright, non[-]exclusive rights to reuse the drawing for any purpose, and to authorize others to use the drawing for any purpose. Because the grant is non[-]exclusive, the artist may also exercise the same rights; for example, the magazine may license the use of the drawing as part of the decor of a television show, and the artist may license the appearance of the drawing on a film set (or in another television show).

CLAUSE:: (iii) Company will have the exclusive right to include each Work in a Company anthology, that is, in an anthology that contains material at least 25% of which originally appeared in [Publication], and which includes works by more than one contributor.
EXPLANATION:: (iii) Although the grant as a whole is non-exclusive after 90 days, the Company receives exclusive rights to anthologize the drawing, but only if the anthology collects drawings of two or more artists, and at least 1/4 of the drawings contained in the anthology were first published by the Company.

CLAUSE:: (iv) Company may allow any of Company's or its affiliates' owned or licensed publications outside of the United States, and/or foreign language publications in the United States (in each case "foreign publication") to acquire the exclusive first publication rights to each Work in that publication's country and/or language of publication, such exclusivity to last for ninety (90) days beyond the on-sale date of the issue of the foreign publication in which the applicable Work is published. The foreign publication may acquire the rights by giving notice thereof within one (I) month of the U.S. on-sale date and by agreeing to pay a fee to Freelancer upon publication as follows: [omitted]
EXPLANATION:: (iv) Foreign rights: Company's foreign editions have an exclusive option to publish the drawing outside the US; they must exercise this option within a month of the ~~publication~~ [on-sale date] of the US edition [and by agreeing to pay a fee to the author upon publication]. If a foreign edition does publish the drawing, it enjoys 90 days of exclusivity from the ~~date of publication~~ [foreign on-sale date].

CLAUSE:: (b) In addition to the rights granted above, for cover-art drawings accepted by Publication, Freelancer hereby grants to Company the following rights in each Work, for the full term of copyright, including any renewals and extensions throughout the world: The exclusive right to use cover-art drawings to prepare covers of Publication. Freelancer acknowledges that any cover containing a Work is a derivative work in that it has recast, transformed, or adapted Freelancer's original Work and, as such, all rights, including copyright, in the cover shall be owned by Company outright. In any event, Freelancer grants Company the unrestricted right to use any cover containing a Work for any purpose at any time. Ownership of the copyright in the underlying work as well as ownership of the physical cover-art shall remain with Freelancer.
EXPLANATION:: (b) Special rules for drawings used as cover art: the author is not entitled to exploit the artwork as it appeared on the cover, incorporating the name of the publication and any other material added by the publisher. But the artist retains the copyright in the drawing as used separately from the cover, and also keeps the original artwork.

CLAUSE:: (c) Company may exercise the rights granted herein in any media now in existence or hereafter developed, throughout the world. In doing so Company may arrange with third parties for distribution, transmittal, publication, promotion or other dissemination of its publication(s) and service(s) or portions thereof containing the Work, or material from Company's publication(s) or service(s), in a collection, section, manner, or area identified as being associated with or containing material from Company or the applicable publication or service, including with any database operator or other service (e.g., Nexis), and may provide links and other enhancements to the Work.

CLAUSE:: See more clauses like this:

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Visual Artists

CLAUSE:: Use this link to link someone to this clause on this page.

These clauses have terms which aren’t the best we’ve seen but not the worst either, so they fall into our could-be-worse category. Be cautious with contracts and clauses of this type.

CLAUSE:: You grant to the [publisher] the exclusive right to publish the Article for a period of one year from the date when the Issue is first mailed to subscribers. During this period, you shall not publish the Article, or any portion thereof, in any other law review, scholarly publication, or otherwise, nor shall you authorize any other party to do so, without the written consent of the [publisher].
EXPLANATION:: This is a contract for publication of an article in a scholarly journal (law review). It grants the publisher the exclusive right to publish the work for one year from the date the issue containing the work is first mailed to subscribers. During that year, the author cannot publish the piece anywhere -- including, it seems, on her own website or on a scholarly pre-print server -- without the consent of the publisher. But after one year, all rights revert to the author.

Clause Type:

For:

Visual Artists

CLAUSE:: [The fee] buys first-time rights to a story. The story may be used in [magazine A], or any editions of the magazines owned by [publisher], which include [magazine B] in [magazine C],in [magazine D], in [magazine D] and [magazine E]. The story may be published on the web sites of any publication for up to one year after initial publication. It will be stored in the web sites archives, unless other arrangements are made specifically with the editor.
EXPLANATION:: This is a contract for publication of a story in a general-circulation magazine. The scope of "first-time rights" is unclear. It would cover first publication in one of the publisher's magazines, but it might also cover initial or subsequent publication in more than one of the publisher's magazines. It does not appear that the publisher is committing to publish the story in a particular magazine. If the magazines enjoy different levels of prestige, there is no guarantee that the story will appear in the high prestige publication rather than a lower prestige one. The author retains all other rights, including publication in or adaptation for other media . The last clause is a grant back clause which gives the author rights that have been previously taken away. In this case, it allows the author to regain all rights in the work but this grant back is non-exclusive meaning the publisher retains the right to publish the work, including online.

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Visual Artists

In these clauses, the contract’s language takes more rights from creators than we think reasonable, and so they are designated creator-unfriendly.

CLAUSE:

The Work will be a work made for hire under the U.S. copyright laws. If a court determines that this agreement does not provide for the creation of a work made for hire, then you agree to give COMPANY its affiliated corporations and licensees exclusive publication rights of your Work for COMPANY, as well as the exclusive rights to reproduce, edit, adapt, modify, perform, transmit and otherwise use the Work, including any derivative works created therefrom, in any manner or medium throughout the world in perpetuity without additional compensation. This includes, but is not limited to, the right to reproduce and distribute the Work in electronic or optical media, or in CD-ROM, on-line or similar format.

Following your submission of the Work to COMPANY, COMPANY is willing to consider a request by you for a non-exclusive license to reproduce and/or distribute the Work to third parties. Any such request should be addressed to your editorial contact.

EXPLANATION:

This is an excerpt from a contract between a journalist or photographer and a major news service. This would look, at first glance, like a standard work-for-hire agreement. People who sign this, however, should consult our definition of work-for-hire and ensure that their project can be classified under this Section of the Copyright Act. Furthermore, the language in the second paragraph should be looked at closely. The Company may give the author the right to reproduce and/or distribute the work to third parties. This right is not guaranteed however, and must be agreed upon at the time the contract is signed. Also, the language of the contract seems to indicate that the author may only reproduce and/or distribute his work to a third party, which would not necessarily include the right to post the material on one's own website or allow others to reproduce the work. Further clarification on these points should be requested before this document is signed.

SEE MORE CLAUSES LIKE THIS:

Clause Type:

Exclusive Use
Grant Back
Works Made for Hire

SEE MORE CLAUSES LIKE THIS:

Creator Type:

Writers
Photographers
Journalists

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These are the contract clauses which are truly unreasonable, which we have designated incredibly overreaching.

CLAUSE:: [Contestant(s)] irrevocably assign and transfer to the Sponsor and its agents, licensees and assignees all rights in the Video, including, without limitation, all copyrights; grant to the Sponsor and its agents, licensees and assigns the right to reproduce, publish, broadcast/use, adapt, delete, edit and/or modify the Video in any manner or format, for any programming, publicity, advertising and promotional purposes, and in any and all media worldwide in perpetuity, in all languages and versions, and without additional consideration, [Contestant] unconditionally assigns and transfers all ideas, concepts, copyrighted materials and trademarks contained in the Video and any and all rights including “moral rights” in the Video to Sponsor and its agents, licensees and assigns. Sponsor and its agents, licensees and assigns have the right to use, assign, modify, edit, adapt, dispose, and electronically alter the Video, including bur not limited to, for moral rights, to appear in promotional and/or commercial materials, as well as to reproduce them, in whole or in part, without compensation or additional consent from me or any third party. I unconditionally assign and transfer all ideas, concepts, copyrighted materials and trademarks contained in the Video and any and all rights including “moral rights” in the Video to Sponsor and its agents, licensees and assigns. Sponsor and its agents, licensees and assigns have the right to use, assign, modify, edit, adapt, dispose, and electronically alter the Video, including bur not limited to, for moral rights, to appear in promotional and/or commercial materials, as well as to reproduce them, in whole or in part, without compensation or additional consent from me or any third party.
EXPLANATION:: Caveat contestant! This is a release form from a song-writing contest. The contestant who sends in a video of herself singing her song assigns all the rights in the video to the sponsor of the contest (the "Sponsor"). The sponsor can then make every conceivable kind of use of, and make any kind of change to, the video, throughout the world, forever, and without paying the contestant. The rights transferred to the do not appear to be limited to the exploitation of the video, but would include the rights in the music apart from the video. Furthermore, it says that the entrant transfers any copyrights she holds in the video she is submitting to the sponsoring company and that the sponsor may use the video in any way it wants without paying the contestant anything. It also mentions that the contestant assigns any moral rights she may have in the work. The United States does not recognize moral rights per se and, therefore, this clause is moot. (For more information on moral rights, click here.) (Furthermore, it should be noted that moral rights cannot be assigned in jurisdictions that do honor them.)

CLAUSE:: SEE MORE CONTRACTS LIKE THIS:

CLAUSE:

CLAUSE TYPE:

EXPLANATION:

Exclusive Use
New Media Rights
Changes to the Work
Geographic Scope
Duration of Grant
General Assignment of Copyright

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CREATOR TYPE

EXPLANATION:

Contest Entry Forms
Filmmakers
Musicians

CLAUSE:: Use this link to link others to this clause on this page.

Exclusive Use Clauses

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Could-Be-Worse Exclusive Use Clause

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Overreaching Clause

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