Thursday, October 29, 2009

Rights and Copyright

Posted by Victoria Strauss for Writer Beware

Copyright, literally, is "the right to copy." It guarantees the authors of creative works--including books, artworks, films, recordings, photographs--the exclusive right for a set period of time to allow other people to copy and distribute the work, by whatever means and in whatever media currently exist. It also prohibits copying and distributing without the author's permission. You own copyright by law, automatically, as soon your work is fixed in tangible form--i.e., the minute you write down the words.

Contained within copyright is the entire bundle of rights that an author can grant to others or utilize him/herself. For book authors, this includes the right to publish in book or other form, to make translations and audio recordings and films, to create serializations or abridgements or derivative works...the list goes on, and continues to expand as technology makes different forms of publication and distribution possible.

When you sign a publishing contract, you are granting the publisher permission to exploit (i.e., to publish and distribute for profit) some or all of your rights for a defined period of time. Because you own the copyright, granting rights doesn't mean you lose or abandon those rights--merely that you authorize someone else to use them for a while, either exclusively (no one else can use them at the same time) or nonexclusively (you can also grant them to others). Eventually, once the contract term has expired or the book has ceased to sell in significant numbers, the publisher will cease publication and relinquish its claim on your rights. This is known as rights reversion. Sometimes reversion is automatic (as in a fixed-term contract); sometimes you must request reversion after the book has been declared out of print (as in a life-of-copyright contract). Once your rights have reverted, you are free to re-sell them if you can or use them yourself, as you choose.

For many readers of this blog, the above will seem pretty elementary. But confusion between rights and copyright is not unusual--not just among authors (one common misplaced fear, that granting rights to a publisher means you lose them forever, is often used as a justification for self-publishing), but among inexperienced publishers. If I had a dollar for every small press contract I've seen that hopelessly conflates rights and copyright (for instance, requiring writers to grant copyright, but then reserving a variety of subrights to the author), I could take my husband Rob out to a very fancy dinner.

Some suggestions to untangle the confusion and protect yourself:

- First and foremost, understand copyright and the rights it gives you. The US Copyright Office, the UK Intellectual Property Office, and the Australian Copyright Council all offer information. The more you know, the more likely it is that you'll recognize bad contract clauses when you run across them.

- Except in specific circumstances, such as doing work-for-hire, don't give away your copyright, not even temporarily. Inexperienced publishers sometimes ask for this, believing they need it to properly exploit authors' rights. They don't--and if things go wrong, it can work out very badly for you.

- You don't necessarily need to be afraid of life-of-copyright contracts. In a fixed-term contract, you grant rights for a defined amount of time--say, three years. In a life-of-copyright contract, you grant rights for the duration of copyright (currently, in the USA and most of Europe, your lifetime plus 70 years). New authors often find life-of-copyright contracts very scary--but they're standard in commercial publishing, and many smaller presses have them also. They are not intended to allow the publisher to hold your rights until 70 years after your death, but rather to create an open-ended situation in which the publisher can keep your book in print for as long as it continues to sell.

Of course, you need to evaluate the situation. For a new small publisher, life-of-copyright might not be such a great idea, since the failure rate for new publishers is very high. A fixed-term contract might be better, as it would at least ensure you got your rights back eventually, even if the publisher didn't bother to return them before disappearing. And a life-of-copyright grant term must be balanced by a rights reversion clause (see below).

- Speaking of grant terms, make sure there is one. Whether it's three years or life-of-copyright, your contract should state the term for which rights are being granted. I've seen small publishers' contracts that lack this important detail.

- Make sure your contract includes some provision for rights reversion. While you want to grant rights to a publisher that will properly exploit them, you also want eventually to get your rights back. When and how this happens should be clearly spelled out in your contract.

A time-limited contract is one way to ensure reversion--but beware of automatic renewal clauses that make it difficult for you to terminate, or that rely on you remembering to send the publisher notice before the renewal date and thus can easily be forgotten. Beware also of excessive grant terms--for instance, the contract of one well-known author mill extends for seven years, which is longer than many commercially-published books remain in print. For a smaller publisher, three to five years, with the possibility of renewal if both parties agree, is probably the most you want to consider.

For life-of-copyright contracts, there should be a rights reversion clause detailing when the work will go out of print (ideally, this should be tied to minimum sales or royalty levels, rather than mere availability for sale, so that the publisher can't hang on to your rights if your book is selling just a couple of copies a year) and what steps you can take to demand that the publisher return your rights (usually, a letter asking the publisher either to republish or return rights, and providing a timeframe for the publisher to respond). Never sign a life-of-copyright contract that does not include such a clause. Yes, they exist; I've seen them.

Also look for a clause requiring the publisher to publish within a specific period of time (say, 12-24 months), or else return rights. This will prevent the publisher from sitting on your book without ever publishing it, or from pushing the publishing date back indefinitely due to incompetence or malice.

- Last but very definitely not least, never rely on a publisher's verbal assurances. A confused or devious publisher may assure you that, even though its contract requires you to give up copyright, "you aren't really losing your copyright, because we'll give it back later on." Or, even though its life-of-copyright contract doesn't include a reversion clause, "you don't need to worry, because we never hold on to rights forever." Maybe the publisher means it, maybe it doesn't--but do you really want to risk signing with a publisher whose contract doesn't match its promises? Along with Yog's Law, a principle by which authors should always abide is this: If it's not in writing, it doesn't exist.

For more on copyright, including the reasons why you don't need to register copyright for unpublished work and a discussion of several common copyright myths, see the Copyright page of the Writer Beware website.

26 comments:

Patience-please said...

Thank you - this is very informative. I still don't understand how Google got away with putting my book online. I just don't get it.

emma darwin said...

This is brilliantly clear - thank you.

One point to add is that print-on-demand technology means that a book need never, technically, go out of print: there don't need to be physical books in a physical warehouse for the book to be 'available'. The writer may think this is a good thing. But if the publisher has no money tied up in printed copies and warehousing, then they have even less incentive to keep trying to sell them.

You need to make sure the contract covers this possibility: a minimum sale of x copies a year, perhaps, below which it's declared o/p.

Jill Edmondson said...

How true, how true! Thanks for giving the nuts and bolts of contracts & copyrights.

I especially like the reminder about getting everything in writing. It is amazing in this day and age that some people still get suckered by verbal agreements...

I think authors will have to be ever more vigilante about checking to see who is doing what with their work - especially with electronic formats.

Thanks for the wake up call, Jill
www.jilledmondson.blogspot.com

Nicola Morgan said...

Excellently clear. Even agented authors need to understand this. I gave a talk about rights and how to assert/understand them and it was amazing how little even oft-published authors understood about rights and copyright.

Also worth pointing out that, having sold rights to a publisher, we then need to ask the publisher's permission to copy a part of our own work for public use ourselves. For example, we would have to ask permission to reproduce an extract on our website, or read an extract aloud on radio; or turn the cover into postcards. Obviously, in most cases the publisher would agree, on the basis that it was promoting the book, but we have a duty to clear permission first.

Great post, thank you!

jongibbs said...

Excellent post!

Thanks for sharing :)

Cee said...

This posting was exactly what I needed! I am about to embark on my first publishing endevor and am very worried about things like this. I've been trying to educate myself (as they don't teach you this stuff in school!) and there is so much confusing and bad advice. It's hard to tell whom you can believe.

So...Thank You, Thank You, Thank You!

Lynnda - Passionate for the Glory of God said...

Good morning Victoria,

Nicola Morgan wrote: "but we have a duty to clear permission first."

I assume this advice applies to contracts in which we grant publishers EXCLUSIVE rights. If I grant non-exclusive rights, would I still need to get permission from the publisher?

Thanks for blowing away some of the fog.

Be blessed,

Lynnda

Frances said...

Victoria, thank you for this informative post.
I find it difficult to find info on infringing copyright.
E.g. If I quote some sentences from your blog in the form: Victoria Strauss says, "I wordword word", then I have infringed copyright.
However, if I rephrased it as, "Victoria Strauss says that she wordswordswords", then I haven't. Or if I said, "Some writers have said that wordwordword", that also is allowable.
Is my understanding correct? It seems crazy to me: the latter examples feel to me more like stealing than does the first.

Raelene said...

Excellent, concise and clear summary! Thank you. I am going to start giving the link to the blog to authors.

Raelene Gorlinsky,
Publisher, Ellora's Cave Publishing Inc.

Mark Coker said...

Great post. I'm going to add a link to it on our FAQ dealing with the copyright question.

Lynners said...

I really appreciate this information. Thanks for sharing it with us.

JFBookman said...

Victoria, thanks for a terrific comprehensive look at copyright. Just getting authors to understand that publishers are rights licensers is surprisingly difficult, and I will refer people to your explanation.

Editor said...

Great.

Lise said...

Vastly important subject and great, informative post. The "business" aspect of publishing all too often either overwhelms, or bores writers who don't fully understand just how vital these issues are. Or because they are "creative" not business types, or because they have an agent and don't need to know it themselves, etc. Thank you for such a clearly presented bundle of information.

Kittie Howard said...

Good stuff!

Cindy Vine said...

some incidents that happened to them in their life, and I use the idea but change the incidents and put them in my book. Do I have to pay them a commission for giving me the idea? If so, how much do you pay them? The finished book will be nothing like their life story and in fact, I'm only elaborating an two of their incidents and changing them completely anyway.

Victoria Strauss said...

Cindy,

If you want to base your book on real incidents in the lives of people you know, it would be a very good idea to get their permission (in writing) first.

This isn't a copyright matter, but a matter of potential legal liability--for you. Incorporating such incidents into your fiction could get you sued if your book gets published, even if you change the names and dates.

Cindy Vine said...

Thanks Victoria! I do have emailed permission but am not really using their story, but their story gave me an idea to write something else. Goodness, hope this makes sense. But now the person who gave permission emailed me and asked if she'd get commission for giving me the idea even though I am not writing her story, and asked if she's going to be getting commission because friends of hers suggested it to her. So I want to know, do you pay someone commission for giving you an idea which you have then developed into something quite different? Logic tells me that people can't expect commission for telling you a story which made you think of another story which you invented yourself, but I just want to be sure. I mean if you consult an expert to get background when you write a book, do you have to pay them commission?

Victoria Strauss said...

Cindy, you don't "have" to do anything. Some people might want compensation if they let you use their material, or provide you with background information--whether a flat fee of some kind or a portion of the profits if you sell your book--but many people might be happy to grant permission/cooperate for free. Just consulting someone for information shouldn't involve a fee--every "expert" I've ever contacted in researching my books has been happy to talk to me for free--but using someone's experiences, or materials they've compiled, might.

At any rate, this is something that should be worked out when you first talk to the person about cooperating, and should be included in whatever agreement there is between you.

It seems to me that the person who is asking you for money should have thought about that before she granted you permission. At any rate, if your story is no longer recognizably her story (and be very sure it's not), you can let her know that you're not using her story after all. Or you can just say that you aren't prepared to pay--in which case, be prepared for her to withdraw permission.

Susan Cross said...

Thank you for this information. And thanks to Mark Coker to tweeting it for new authors like me.

Mario R. Sanchez, Ph.D. said...

this is all nice and technically correct. the reality is different. when your work makes it on the internet, it will be copied repeatedly, stored in databases for myriad search and research functions (e.g., google and utterly illegal turnitin.com) and people will use it as theirs. then what are you going to do - file a lawsuit? against whom? and for how much? try to get an attorney to do this for you - you'll have better luck at winning the lottery. sorry but this is the reality.

Anonymous said...

Thank You Victoria!! Clear and concise copyright info! Kudos!

Anonymous said...

Is there any issue with using a pseudonym? Can someone pretend they are that person (the Pseudonym) and claim copyright?

Victoria Strauss said...

Anonymous--Theoretically, someone could steal and publish your copyright-protected work--with or without a pseudonym; a pseudonym makes no difference. However, this would be an illegal act and would have no impact on your ownership of copyright. Your work can be stolen, but your copyright can't be. The only way you can lose copyright (apart from the expiration of the copyright term) is to sign it over to someone else.

There are remedies available to you under the law if someone steals your work, including suing the person for infringement (you have to have previously registered the copyright, but you can do that and sue even if registration post-dates the infringement) or, if the content has been published online, sending a DMCA takedown notice to whatever service or vendor or website is hosting the content.

This kind of theft really isn't something you have to fear from reputable publishers and agents, if you're submitting unpublished work. Reputable publishers and agents aren't likely to risk their reputations this way; plus, it's way less trouble (and, of course, way more legal) just to work with the author, rather than to go to all the trouble of stealing the author's work and pretending it belongs to someone else.

However, easy and free epublishing options have recently created a rash of plagiarism and theft. Amazon has been in the news several times lately because of this. So for published work, especially work that has been published online, it's not impossible (though in the grand scheme of things, not hugely likely) that this could happen. As noted, though, you do have legal remedies available to you.

Brandi said...

I wish someone would take action against theft of intellectual property, ethical guidelines, and illegal acts against individuals posting false information about them on the Internet. On the Web site SmashWords, I noticed my name, as well as having a master's degree in criminal justice, but also yet to publish anything. First, I have written a scholarly thesis for a bachelor's degree which is neither related to 'criminal justice' nor 'counseling'. Second, the person mentioned how I have 11 years experience in the field of criminal justice and counseling. Really???? Because I was unaware of this information and would like to know who was the given "source" in providing such misleading information about me. I only wish that I had a master's degree in criminal justice right now. They should be charged with cyber crimes, writing fraudulent material about someone they have yet to speak with and are still submitting false tutorials. What is the digital world coming to these days?

iVAN said...
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