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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.