Friday, September 12, 2008

Victoria Strauss -- A Publishing Contract Clause to Beware

Yesterday I got a question from a writer who'd been offered a publishing contract by a small publisher, and was concerned because the contract language seemed to indicate that the publisher intended to register copyright in its name, not the writer's.

I asked the writer to send me the contract, so I could look at the actual wording. Sure enough--a transfer of copyright was demanded. But there was a twist: a rights reversion clause. Once the contract terminated, the copyright and all rights would return to the author.

I don't know if it's a growing trend or just coincidence, but I've seen a fair number of contracts like this lately--most from micropresses, but some from sizeable independent publishers. I've touched on the temporary-transfer-of-copyright issue in a previous post about precautions for small press authors, but I think it's important enough to warrant a more detailed discussion.

Most writers know that unless you're entering into a work-for-hire agreement, it's not a good thing to transfer copyright (transferring copyright means that you give up ownership, not just of any rights in the work, but of the work itself). But what about just a temporary transfer? If you're going to get the copyright back someday, is it really so bad to surrender it for the duration of the publishing contract--especially if, as in the case of my questioner, the contract is time-limited?

In a word--yes. The fact that you've been promised you'll get your copyright back eventually doesn't change the fact that, while the publishing contract is in force, you no longer own it. This means that the new owner can alter, adapt, license, sell, or do anything else it wants to your work without consultation, compensation, or even credit to you. Because you gave up copyright, even if temporarily, you have no grounds to protest, and no recourse if the use the publisher makes of your work is offensive to you or changes the meaning or the quality of the work.

Of course, if the publisher is a micropress, the above is probably moot, since it’s unlikely that a micropress will be able actually to do anything with your work (such as selling subrights). I think it's also probable that in many cases, the micropresses don't fully understand the distinction between rights and copyright, and may not intend to take full ownership (the larger independents that include this kind of clause in their contracts have no such excuse). In some cases, the temporary--transfer-of-copyright contracts I've seen are so confused and contradictory that they might not even be enforceable.

There's another concern, however, and that's the fact that micropresses--which are often started up by people without any sort of publishing, editing, or marketing experience, and are run on a shoestring and a prayer--can have a very brief shelf life. Sometimes they go out of business without ever issuing any books. Sometimes they hold on for longer, but eventually are overwhelmed by bad management, money problems, or logistical difficulties. When that happens, they may do the right thing, dissolving contracts and returning rights. But they may also simply vanish into the night, leaving writers in limbo. If your publisher does that kind of bunk, and you've given it ownership of your copyright, you are, to put it mildly, not in a good position. It's not very likely that another publisher will be willing to take on a book whose rights aren't free and clear, even if the previous publisher no longer exists. Even self-publishing services require you to warrant that you are the copyright owner.

If this sounds like a hypothetical situation, it's not. I know of at least two temporary-grant-of-copyright publishers that have gone out of business in the past year. Both, as far as I know, returned copyrights to their authors. Other authors with other publishers--for instance, the writer I mentioned at the start of this post--may not be so lucky.

Assuming the publisher is not confused about the difference between rights and copyright, and really intends to take ownership, what advantage does it gain from a temporary, rather than a permanent, transfer of copyright? Possibly, the publisher wants to avoid being lumbered with copyrights whose value has been wrung dry, and intends to get rid of copyrights for which it no longer has a use. But another reason may be that the temporary grant makes copyright transfer more palatable to nervous writers. "Yes, you're giving us ownership of your copyright," the publisher can say. "But it's okay, because in the end we give it back!"

Don't be fooled. Whether permanent or temporary, a copyright transfer is a copyright transfer, and its presence in a publishing contract should always give writers pause.

23 comments:

Jill Elaine Hughes said...

I had this exact same thing happen on one of my book contracts, and it was an AGENTED deal. The publisher sent a different version of the contract to me than they did my agent, and the contract they sent me included a clause that registered the copyright in the name of the publisher, as well as a rights reversion clause. I caught it and had my agent kill this clause, thankfully---but shortly thereafter, the publisher in question killed my book. Coincidence? I think not. And this was a very reputable mainstream print publisher. So I do think this kind of thing is happening a lot. Maybe it is the same publisher as the one described in your post, I don't know.

Watch out for those rights grabs, people.

Unfocused Me said...

Sending the author a different version of the contract than was sent to the agent has to be on the top ten list of most unethical things I've ever heard of, whatever the terms are.

Anonymous said...

I've seen the different-contract-to-author-versus-agent thing happen multiple times, with multiple publishers. Both of the agents I've had have told me this is commonplace, and always something to watch out for. Even when you're dealing with reputable NYC houses, you've still gotta watch your back. THe publishing biz is dog-eat-dog cutthroat.

Cheryl Pickett said...

It truly is unfortunate how many people get taken advantage of simply because they don't know what they don't know.

I also appreciate the comments as I was not aware of the different contract to different people issue either.

Thanks to all of you for caring enough to participate and share.

Cheryl Pickett
www.publishinganswers.blogspot.com

Victoria Strauss said...

If you're in this business long enough, you'll see just about everything at least once or twice. But I truly do not think that publishers sending one version of a contract to an author, and another to the agent, is a common problem. I keep my ear pretty close to the ground, and I've only ever heard of one or two instances of this happening.

One way to make sure it doesn't happen is to have the publisher send the contract to the agent first. That way, the agent can look it over and send it on to you. This is the way my agent works; I can't imagine her allowing a publisher to send a contract directly to me.

Anonymous said...

If I sell, assign, transfer, or whatever my copyright do I still have the right to create follow on works such as sequels?

Victoria Strauss said...

That's a good question, Anonymous. My impulse would be to answer no, but I don't know for sure. Any IP lawyers out there?

Patti said...

i want to thank all of you for the service you supply to all of us. i can come here, read a post and feel educated on an issue that i may not run across anywhere else. for a writer who wants to sell, it's an education worth having.

C.E. Petit said...

(1) A loud chorus of "it depends" to Anonymous's question about sequels and derivative works. The most-amusing possibility is doing a parody of the work... which could qualify as fair use, regardless of copyright ownership. Of course, parodying one's own work would indicate some dissatisfaction with the copyright grab!

Generally, however, the answer to Anonymous's question is "Those rights probably belong to the publisher (copyright holder), and trying to skirt the edges should be left to professional stunt-writers. In other words, don't try this at home, kids!"

(2) The "temporary transfer of copyright" used to be standard industry practice... because it was required under the 1909 Copyright Act. There are still a lot of form books floating around with old publishing contracts that include that language. It's only been thirty years since that requirement became obsolete, so I am not too surprised that some in the publishing industry might fall back on it. This is particularly unsurprising since very few publishers — even among the big ones — have attorneys directly supervising the contracting process, let alone attorneys whose knowledge of copyright and trademark law is current and accurate.

The real reason that I think these clauses are starting to make a comeback, though, is an attempt to make an end-run around Tasini and limitations of rights transfers. The publishers want the right to authorize e-book editions, etc., regardless of what the authors object to or negotiate. (I'm not saying that the publishers can actually exploit the rights — they just want them.) Since the transfer of the copyright itself generally overrules any other reservation of rights, or at least appears to do so, it's a way for the unscrupulous (and the contracting department people who were not involved in the negotiations) to cut past barriers and make their jobs easier later on.

This is all an artifact of some unfortunate linguistic problems. Nobody actually sells rights; they license them. However, the publishing industry really, really doesn't want authors (and agents) to understand that distinction, because it would not be to the industry's advantage...

Kristina Springer said...

Just stopping by to let you know that the Author2Author girls nominated this blog for the I LOVE YOUR BLOG award. Check here: http://author2author.blogspot.com/2008/09/i-love-your-blog-special-saturday.html

Jill Elaine Hughes said...

The fact my old agent had a publisher send a contract directly to me after he negotiated it was a big reason I fired that agent (one of many reasons).

Marian said...

I was wondering what a publisher would gain by taking the copyright at all. A way to make sure the author remains in the fold? The ability to pass the baton to another, cheaper author in case the book becomes popular?

Jenny Jill said...

I, too, have a horror story . Thanks for warning fellow writers!

The Guessing Game said...

Has what's been written in the AMADEUS SPECTRUM true, involving yourself, James McDonald, Jane Beresford, Nelson Ford, and eight other individuals in a "research team" sting operation to uncover the truth behind the movements of the publishing industry? Have you been indicted yet, or are the words of the small press publishers and writers who are now coming forward delusional?

Victoria Strauss said...

Hey, Guessing Game. If you're going to try to smear Writer Beware, at least make it convincing. I understand why you invented the magazine (or website, or whatever it's intended to be)--if you cited a real one, people could Google it and discover that this supposed article doesn't exist. The fake names, though, really give you away.

Richard White said...

Victoria,

Kind of makes you wonder which one of our "fans" that was . . .

You're right though, the fake name was pretty much a dead give-away.

A. C. Crispin said...

Believe it or not, The Magazine of Fantasy and Science Fiction is still using one of those old-fashioned contracts that demands copyright transfer of all authors.

I wonder how many authors remember to write F&SF and request their copyright be transferred back to them after the 90 days the contract stipulates?

-Ann C. Crispin

A. C. Crispin said...

Hmmmm...the Guestbook Slimer has not returned.

I feel kinda hurt that I wasn't mentioned as about to be indicted.

(pouts)

-Ann C. Crispin

Bob Holtzman -- said...

The standard contract at McGraw-Hill Professional (which includes their Consumer line) calls for transfer of copyright, but when I worked as an editor there for the International Marine imprint, it was one of the easiest gimmes. Authors had only to request that they retain copyright and we'd allow it. In fact, I discretely suggested it to several.

Anonymous said...

I think Living Waters Pblsh. Co. did that in my contract. :( Now I
am up the creek without a paddle! Any help out there for me? Katie

Nat G said...

You leave out one possibility between "publishing house that's closing return all rights to their authors" and "publishing house simply disappearing", and that's "publishing house files Chapter 7 bankruptcy."
My (non-lawyerly) understanding from discussions of similar situations is that you're apt to get the bad end of that. The copyright would be a corporate asset, the reversion would be an obligation - and bankruptcy is a matter of selling off assets without being fully burdened by your obligations.

Victoria Strauss said...

Nat, while you're right about the potential problems for writers when a publisher declares bankruptcy, it's very much the exception for a failing micropress to do this. Bankruptcy costs money, brings you into court, and makes you liable to your creditors, whereas if you just disappear or go out of business, you're done. It's the larger, more professional publishers that may declare bankruptcy if they get into trouble--but they are much less likely than the micropresses to get into trouble (the example of Samhain notwithstanding).

F. Ellsworth Lockwood said...

I have been off the Authonomy.com site for several days. Tried to access my page today and got the following message: "403 - Forbidden: Access is denied.

"You do not have permission to view this directory or page using the credentials that you supplied."

Don't know what that's all about, and wondering if the site is down temporarily ... or permanently.

Many good comments here on both sides. I think that the feedback from Authonomites helped me improve my book, but now I am tiring of the "gaming" aspect of it too. Maybe it has served its purpose for me.

For those who want to know who is "talking" my name is Frank. Publishing as F.E. Lockwood (eltopiafrank on Authonomy)

Name of story is, "The Final Cruise."