The Legal Side of Writing for Anthologies (Part 2)
Last month, my #PubLaw guest post here at Writers in the Storm examined some important legal issues authors face when writing for anthologies. Today, we’re taking a closer look at appropriate—and not so appropriate--grants of rights in anthology contracts, which differ from the standard grants of rights in book-length publishing deals.
Before we get started, it’s important to remember that “copyright” actually consists of many different rights, including not only the right to produce a work in different standard publishing formats like print and ebook, but also translation rights, foreign distribution rights, serial rights (e.g., in a monthly magazine, one chapter at a time) film and TV rights, merchandising, and other subsidiary rights.
Traditional publishing contracts often attempt to divide each of these rights between author and publisher, but anthologies don’t have the same interest in rights acquisition as publishers do. As a result, anthologies generally have much shorter paragraphs (sometimes merely clauses) addressing the grant of rights.
The anthology contract should grant the anthology publisher only the rights reasonably necessary to publish and sell the anthology.
Now, let’s look at the grants of rights which authors should expect to see in anthology contracts:
1. First Print Rights or Non-exclusive Print Rights. (Note that these should be limited to use of the work in the specified anthology only.)
Many anthologies want "first print rights" to contributors’ stories, which means those stories cannot appear elsewhere, in print or electronic formats, before being published in the anthology. (Most of the time, publishers of book-length works want first print rights as well.) An appropriate grant of rights in an anthology contracts would typically read: "Author hereby grants [Publisher] first English-language publication rights" or "Author grants [Publisher] first English-language anthology publication rights."
If the contributed work has been published before, the anthology contract may modify this language by removing "first" and inserting "non-exclusive," or "second" or some other appropriate identifying word. However, the contributing author must let the publisher know about previous publication—normally at the time of submission but certainly before signing the contract, to be sure the grant of rights is properly phrased (and that the publisher is willing to take previously published work).
The contract should also specify that the grant of rights enables the publisher to publish the work as part of a specified anthology only. This prevents the publisher from legally using that grant of rights to publish the contributor’s work in standalone format or use it for other unspecified purposes.
2. Continuing, non-exclusive print or publication rights (as part of, and in reprints of, the specified anthology only).
Grants of rights in anthology contracts should always contain the word "non-exclusive" and clearly state that the anthology's publisher has the continuing, non-exclusive right to reproduce the author's work as part of the specified anthology only. Publishers do need "continuing" rights so the work can be included in reprints and future editions of the anthology. However, the author should never surrender the right to publish the work in other formats, other anthologies, or other collections (for example, in a collection of the author’s own short works).
3. Limitations on how soon the author can publish the work again, or in other formats. Anthologies often want the right to publish works on a “limited exclusive” basis, which is normal—and fine—as long as the term requested is not too long. 6-12 months from the date of the anthology’s initial publication is a reasonable exclusivity period. However, the anthology contract shouldn’t bar the author from ever publishing or using the work again, or demand an excessive exclusivity period.
Note: NEVER grant or transfer your copyright in your work to an anthology publisher. Next month’s post will look at anthology copyrights in more detail, but for now it’s enough to remember: no anthology publisher needs the copyright in your story.
The author should always retain copyright ownership in his or her work.
The Anthology contract should specify that the grant of rights covers English language rights only, unless the translation rights are limited to the translation of the entire anthology (as a whole) into other languages. Translation of anthologies is rare, and most of the time the publisher needs only English language rights to contributed works. Although translation of short stories and other shorter works is rare, the author should still retain the rights whenever possible.
Anthology contracts should never contain grants of subsidiary rights like film, television, app and gaming, graphic novel, and merchandising rights (to name a few). The only time these rights should show up in an anthology contract is when the contract states that the author retains these rights exclusively.
Finally, anthology contracts should always contain a statement that the author retains all rights not expressly granted to the publisher in the contract. This is standard but needs to appear in the contract to ensure that ownership of the rights (and the right to exploit them) is clear.
Anthologies present many authors with valuable opportunities to publish shorter works, “cross pollenate” readership, and gain publishing credits. Authors simply need to ensure that the grant of rights is clear—and not overreaching.
Do you write for anthologies? How do the grants of rights you’ve seen compare with the ones we’re talking about today?
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Susan Spann writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI released in 2014, and her third novel, FLASK OF THE DRUNKEN MASTER, releases on July 14, 2015.
Susan is also a transactional attorney whose practice focuses on publishing law and business. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium. She was recently named Rocky Mountain Fiction Writers’ 2015 Writer of the Year, and you can find her online at http://www.SusanSpann.com, on Twitter (@SusanSpann), and on Facebook (SusanSpannAuthor).
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I'm SO glad you're doing this series, Susan. Back when I first sold, I was asked to be in an anthology an already successful author was self pubbing. I was honored to be asked, and only remembered at the last second to check in with my agent. Good thing I did - the contract was way out of the norm, and had some of the issues you outline above.
Be careful out there, people.
Thanks Laura! I'm glad I'm able to offer the information and spread the word!
Thank you Susan for your always helpful posts on an author's legal rights. You are an amazing help.
Thank you! I'm truly glad to do it.
Susan, I love these posts! I always learn so much. And we really, really appreciate your sharing this information with our readers.
I have a question for you (when you return from your conference): When many authors jump into an anthology together, how do you see them deal with the payment and the copyright? It seems like it would have to be under one person's name or account, and I've always wondered how it would work out.
What do you recommend as an attorney?
Great question Jenny!
If the anthology is traditionally published (some are), then the publisher will normally work with one author's agent on behalf of the group. Sometimes multiple agents do get involved--and all of the authors' agents get their cut of the royalties (only the ones their authors receive, of course), per the contract, whether or not they handled the negotiation. In that case, copyright is registered on the anthology, and on each author's contribution, by the publisher.
When the anthology is self-published, the authors need to hire a lawyer to write a contract that sets proper terms and states how the royalties will be divided and distributed. The short answer is that normally one person needs to be responsible for it--and trusted by the others to do it properly. I do write those kinds of contracts, at a reduced rate, but for groups in other states I can also recommend attorneys on a case-by-case basis.
Susan, thank you so much for this information and breaking it down into digestible chunks. Having two stories recently published in different anthologies, I had to go back and look at the contracts to see if I missed something. I'm pleased that I read them entirely before signing and they match up with your advice. Love reading your series and learning more about the legal side of writing.
Thank you Nina! And I'm really glad to hear your contracts fall into the 'good ones' column. Legitimate anthologies far outnumber the bad ones, but it's still always important to be vigilant, for sure.
Thanks for the great legal advice, Susan. My work in several anthologies has been with a publishing company, but they have asked for rights for five years. I understand from you this period is too long and out of line with the industry.
great info. thanks for this!