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.