Monday, July 02, 2012

Rights vs. Copyright

Posted by Victoria Strauss for Writer Beware

You may have noticed that there were no posts last week. Apologies! I've got a humongous workload, and have had to cut myself off from the web almost entirely in order to deal with it. 

I thought I'd be finished by now...but guess what. There's still more to do. So, rather than leave the blog bare for another week, I'm re-running my post from 2009 on the difference between rights and copyright, in slightly updated form. The subject is as relevant now as it was then: copyright is an area of tremendous confusion, both for writers and--more troublingly--for some publishers.

I'll be checking in from time to time to monitor and respond to comments. Otherwise, I'll see you next week!

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Copyright, literally, is "the right to copy." It guarantees the authors of creative works--including books, artworks, films, recordings, and 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.

In countries that are signatory to the Berne Convention (which includes the USA, the UK, Europe, and many other countries), 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 print and electronic formats, 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 (i.e., no one else can use them at the same time) or nonexclusively (i.e., 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 common--not just among authors (one especially frequent misplaced fear is that granting rights to a publisher means you lose them forever), 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 relinquish copyright, but then reserving a variety of subrights to the author), my husband and I could treat ourselves to a very fancy dinner.

Some suggestions on how 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.

- Try to submit only to established and reputable publishers. This can involve a lot of research (you can always contact Writer Beware to see if we've heard anything), but it's well worth it on many levels. It's not a guarantee of a standard, author-friendly contract--but it gives you much better odds.

- 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...for instance, if your publisher goes out of business without bothering to return your copyright.

- 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 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 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 to ten 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. (For a much more detailed discussion of the importance of reversion clauses, see my blog post.)

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? One principle by which authors should always abide is this: If it's not in writing, it doesn't exist.

For more information 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.

7 comments:

Anne R. Allen said...

Thanks Victoria. This one's worth re-running on a regular basis. Will RT.

Morgen said...

This is worth reviewing every year or so, regardless of one's stage in career. We all "forget" or become complacent. Thanks for running this again.

Sarah Negovetich said...

Thanks for spelling this out in simple language.

Doug Brunell said...

It is good to review every once in a while. An excellent reminder.

Raven Joann Maaka-Loureiro said...

What are the copyrights for pen names?

Anonymous said...

Sorry, I'm still confused. How should I interpret the following: "Copyright will remain with the author, rights to use with the society" Can I republish all or a portion elsewhere if I wish, of have I given up my right to do so?

Victoria Strauss said...

Anonymous 2/11: You haven't given up your copyright, but whether you can republish elsewhere depends on what rights you granted and for how long.

I can't really give you useful advice with such a short excerpt. Please feel free to email me with the entire contract or agreement, and I'll tell you what I think. beware [at] sfwa.org.