The life of a book packaging writer is not always an easy one. Take the case of LJ Smith, who wrote for Alloy Entertainment, a fiction creation company that created young-adult series for the sake of getting tie-in TV shows and movies made. Alloy has had a string of successes in that regard: Gossip Girls, Pretty Little Liars, The Sisterhood of the Traveling Pants…and Smith’s series, The Vampire Diaries, which she wrote for two decades. The thing is, under the terms of her contract, Smith didn’t actually own the rights to the Vampire Diaries books. She wrote them as works for hire, and they were the property of Alloy. (She didn’t even understand what “for hire” meant until much later.)
Unfortunately, in 2011, they fired her from the series and got another writer to continue it. (Continuing to use her name in the byline, to add insult to injury.) Smith was bitterly disappointed that she couldn’t carry the series through to its conclusion on her terms.
But then Kindle Worlds came about, and Alloy licensed The Vampire Diaries as one of the properties whose fans could write and sell fanfiction on Amazon, as long as they got a cut of it. And this proved to be the perfect way for LJ Smith to put out her version of what happened next in the Vampire Diaries—as “fanfic” of her own books. Smith wrote on Facebook:
The Evensong arc will pick up more or less where Midnight left off and takes place in an alternate world from the official books that follow Midnight. The three books in this arc are Paradise Lost, The War of Roses, and Into the Wood. The first novel, Paradise Lost, and the first part of the second novel, The War of Roses, will be available January 23, 2014.
She notes that if all goes well, she will be willing to continue writing “fan fiction books” in the series all the way up to the endgame she had originally planned if the fans are willing to keep buying them. Given that the books are currently #1 and #2 on the Kindle Worlds Teen & Young Adult chart, that seems fairly likely.
Looking at this article
http://www.copyhype.com/2011/08/marvel-v-kirby-work-for-hire-and-copyright-termination/
it may be that her relationship with Alloy doesn’t qualify the novels as a work for hire. Since the works are stand-alone novels, they don’t meet part 2 of the definition of work for hire (“a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas”). Therefore, their status as a work for hire must rest on the first part of the definition “a work prepared by an employee within the scope of his or her employment”.
This will become particularly relevant in another five years or so, when if they are not works for hire then she could apply for the copyright to revert.
I don’t know; I’d think you could call the series as a whole a “collective work.” And I’d think that a company who builds its business on getting other people to write crap for it would be careful about its contracts to avoid that kind of thing.
A majority of work-for-hire contracts specify that the copyright belongs to the company, not the writer. I’ve not seen the contract mentioned so I can’t say if that’s true in this case, but it would very much surprise me if it didn’t.