February 14th, 2014

CONTRACTS AND COPYRIGHTS

It’s Valentine’s Day and all of us at WITS want to send our heartfelt thanks to our guest bloggers and our amazing readers. Virtual chocolate hearts for everyone!

by Susan Spann 

Even though copyright protection is automatic and attaches to qualifying works (like novels) at the time of creation, an author can—purposefully or accidentally—transfer those rights by contract. During the next few months, my guest posts here at Writers in the Storm will take a look at some common contract terms to watch for … and to watch out for.

Today, we start with #1: the Unambiguous Statement of Copyright Ownership

Your publishing contract should always contain a statement that you, the author, “are and will remain” the sole owner of the copyright.

The language referencing copyright ownership usually doesn’t appear in the paragraph granting the publisher rights to publish the work. It normally comes in a later part of the contract, in a paragraph titled, “Ownership,” “Copyright Status,” or something similar.

The language you want to see will look something like this:

“Author retains sole copyright ownership and sole ownership of all rights in and to the Work, with the limited exception of rights expressly granted to Publisher in this Agreement. This Agreement operates as a grant of copyright license, permission, and use to the maximum extent necessary or useful for Publisher to carry out and benefit from the terms of this Agreement.”

That’s written in semi-legalese, so let’s break down what it means:

Author retains sole copyright ownership and sole ownership of all rights in and to the Work”  This is the critical language you have to see. It means that you, the author, retain sole ownership of both the copyright and all other rights in and to the work.

You are licensing the publishing rights to the publisher, not selling them or giving them away outright. The contract must say so, and say so explicitly, in terms you understand.

with the limited exception of rights granted to Publisher under this Agreement.”  Obviously, the rights you grant to the publisher are no longer your own for the duration of the agreement. They have been licensed to the publisher, usually on an “exclusive” basis, which means the publisher has the sole right to use and exploit those rights during the contract term.

“This Agreement operates as a grant of copyright license, permission, and use”  This means that the Agreement gives the publisher a “license” (legally binding permission) to use the author’s copyrighted work. The words “license, permission, and use” distinguish the grant being made from a grant of ownership.

“…to the maximum extent necessary or useful for Publisher to carry out and benefit from the terms of this Agreement.”  This means the publisher has the right to use the author’s work in the ways described in the Agreement, as well as other reasonably necessary or “useful” ways.

To many authors, the word “useful” seems to expand on the rights granted to the publisher. Generally speaking, the word “useful” is not considered an expansion of the publisher’s rights. In legalese, “necessary or useful” normally means that the Publisher has the right to engage in reasonable secondary uses which are part of or directly related to the other rights (e.g., the right to publish the book). Some of these “necessary or useful” things might include the right to grant permission to someone else to physically print copies of the books, the right to hire someone to distribute the books, the right to send out review copies, etc.

When representing authors, I might ask the publisher to strike the words “maximum extent” and “or useful,” so the expanded rights are only those “necessary” to carry out the publisher’s rights to publish and market the work. However, if the publisher refused, I wouldn’t recommend that the author reject the contract over that point alone.

If you review a publishing contract, and cannot find an unambiguous statement that you remain the sole owner of copyright in and to the work being licensed, do not sign or agree to it. You may be giving away important rights that you can never recover. Always ask an attorney (or an experienced agent) to review the contract and make sure that ownership of the work remains with you, and you alone.

Note, however: this language isn’t the end of the copyright tale.

In addition to an unambiguous statement about the copyright, your contract should contain at least three other important copyright provisions. We’ll look at each of them, in turn, in the months to come.

Do you understand the legalese well enough to know what to look for? If you have questions about this or other copyright issues, I’d love to hear from you in the comments!

Susan Spann is a publishing attorney and author from Sacramento, California. Her debut mystery novel, CLAWS OF THE CAT (Minotaur Books, July 2013), is the first in a series featuring ninja detective Hiro Hattori. The sequel, BLADE OF THE SAMURAI, will release in July 2014.

Susan blogs about writing, publishing law and seahorses at http://www.SusanSpann.com. You can also find her on Twitter, @SusanSpann, or on Facebook.

20 comments to CONTRACTS AND COPYRIGHTS

  • Reblogged this on Writing Under Fire and commented:
    This is important information for authors. Brought to you by Writers In The Storm.

  • Sue

    Thank you for the useful advice! If I ever get a contract, I will check with Susan first.

  • Hi Susan. What if the contract didn’t say anything at all (that I can see) about ownership of copyright? I wish I’d seen this post yesterday or even three hours ago.

    • Hi Calisa. I’ve never seen one that said absolutely nothing about copyright at all. It’s probably there, between the lines or in another paragraph somewhere. The good news is that generally speaking, if the contract isn’t explicit the rights remain with the author – however, there have been courts that held otherwise.

      If you’ve got a contract and can’t find the operative language, I’ll be glad to take a look for you off the clock (pro bono) – send me an email.

  • Thanks Susan. You never fail to but the legal mumbo jumbo into language we can understand. I can’t wait to hear what we should do before putting our books on Kindle. Some say we don’t need to do a copyright but that makes me very uneasy.

    • Sharla – you do need to copyright books you release on Kindle. Releasing the book on Kindle is “publication,” and unless a book is registered with the copyright office within the statutory time after initial publication, you won’t be eligible for maximum attorney fees and other remedies available by law in the case of infringement. Also, you have to register copyright before you can file an infringement lawsuit.

      If the book is published only in electronic format, you can register using an upload process and don’t have to provide hard copies to the copyright office. It only costs $35 per work – so I tell people always to register copyrights.

      • A correction: that should have said “you do need to REGISTER copyright for books you release on Kindle.” The copyright itself is created automatically when the work is created. The extra statutory damages and attorney fees come when you register the copyright with the copyright office.

        • Thanks Susan. So should the copyright come first before publication on Kindle? It appears I can do it either way but that it’s safer to do “before” if I’m understanding you correctly. I want the full protection of course. 🙂 I’m thinking registering the normal way might be best so that if later I want to do print on demand, I’m covered.

        • You can register the copyright electronically and later produce print versions – there’s no difference in the registration. It’s just that the copyright office doesn’t force physical submission of copies to the copyright office if the work is initially published only electronically (you submit the sample in ebook format instead). There’s not a difference in the protection you receive, however.

          I’d say complete the registration the day the book releases, or within a week if you can.

  • Yes, that’s my question also. Is there a contract when you self-publish and do you want to see it for a certain term or is it open-ended?

    • When you self-publish, your “contract” is with the platform(s) upon which you self publish. For example, if you publish on Kindle, your contract is the Amazon terms of use (and yes, to many people’s surprise, that is a legally binding contract).

      When you self-publish, there should be no mandatory term. You should be free to terminate the agreement at any time, at will, and with no obligation to the company producing or selling the books. Also, you want to be sure that agreement says, clearly, that you own the copyright – in exactly the same way you’d want it stated in a contract with a publisher.

      Hopefully that clarifies!

      • Thanks so much Susan, so easy to get overwhelmed with everything we need to know. I’m sure grateful for people like you willing to guide us along the way 🙂

        • I’m glad I can help. It’s hard to find information (reliable information, anyway) so I try to share as much as I can. This is a hard business, and the more information we can get, the better!

  • Thanks, Susan for this easy to understand intro to legalize and contracts. Someday I hope to face this dilemma and will proceed with counsel and caution.

  • Oh man, this is such a good article. I’m going to have to save this. Thanks for the good info!

  • […] I mentioned in last month’s post (you can read it HERE), copyright protection is automatic and attaches to qualifying works (like novels) at the time of […]