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February 22, 2019

Publishing Contract Red Flag: When a Publisher Claims Copyright on Edits


Posted by Victoria Strauss for Writer Beware

It's not all that common, but I do see it from time to time in small press publishing contracts that I review: a publisher explicitly claiming ownership of the editing it provides, or making the claim implicitly by reverting rights only to the original manuscript submitted by the author.

Are there legal grounds for such a claim? One would think that by printing a copyright notice inside a published book, and registering copyright in the author's name or encouraging the author to do so, publishers are acknowledging that there is not. It's hard to know, though, because it doesn't seem to have been tested in the courts. There's not even much discussion of the issue. Where you do find people talking about it, it's in the context of editors as independent contractors, such as how authors hiring freelancers should make sure they own the editor's work product, or how freelance editors might use a claim of copyright interest as leverage in payment disputes.

In 2011, Romance Writers of America published a brief legal opinion on its website (still on the website, but unfortunately no longer accessible by the public), indicating that the claim would probably not prevail in court. But that's the only legal discussion I've been able to find.

The legal ambiguity of a copyright claim on editing is good reason to treat it as a publishing contract red flag. But that's not all.

It's not standard industry practice. No reputable publisher that I know of, large or small, deprives the author of the right to re-publish the final edited version of their book, either in its contracts or upon rights reversion. One might argue that in pre-digital days, this wasn't something publishers needed to consider--books, once reverted, were rarely re-published--whereas these days it's common for authors to self-publish or otherwise bring their backlists back into circulation. But publishers haven't been slow to lay claim to the new rights created by the digital revolution. If there were any advantage to preventing writers from re-publishing their fully-edited books, you can bet it would have become common practice. It hasn't.

Publishers can and do legitimately claim ownership of their own work product, such as cover art, design, and formatting. But is editing the publisher's work product? Editing is--or should be--a collaboration between author and editor. The editor makes suggestions; the author implements them. In any fully-edited manuscript, it's likely that most if not all of the actual re-writing and revision will have been done by the author. Why should a publisher be able to claim ownership of that?

Finally, there's the question of benefit or damage. What material benefit does a publisher gain by forbidding an author to re-publish their fully-edited book? How does it damage a publisher if a rights-reverted book is brought back into circulation as originally published? Other than satisfying a misguided and pointless desire for possession or control, none and not at all.

Nevertheless, through ignorance, possessiveness, or simple greed, publishers sometimes do make this claim. As far as I can tell, this is strictly a phenomenon of the small press world; I've never seen it in a contract from a larger publisher. Below are some examples of the kind of language you may encounter (all bolding is mine).

This is from Uncial Press:
Contract may be terminated by either the author or publisher with a 90-day written, certified mail notice or other receipted or traceable delivery service, and all rights to the original, unedited manuscript granted the publisher will revert to Author at the time of the termination.
From Idyll Arbor, Inc.:
An editor will be assigned by Company to prepare the Book for publication. All editorial changes will remain the property of Company.
In this recent contract from Totally Entwined Group (which also does business as Totally Bound), the publisher appears to be claiming ownership not just of edits, but of the edited book itself. The publisher may not actually intend such a sweeping claim--small presses often don't fully understand the implications of their own contract language. But as written, this clause is seriously problematic.
The Publisher shall own all intellectual property rights in any edited version of the Original Work, including, but not limited to, the Final Edited Version (and the Author hereby unconditionally assigns such rights to the Publisher)
Some publishers use a copyright claim on edits as a way to make a buck as the author goes out the door. This is also Totally Entwined/Totally Bound, from an older version of its contract (the money demand does not appear in the recent contract quoted above):
Upon expiration of this Agreement, should the Author wish to acquire rights to the final edited version of the Work, the Author agrees to pay the Publisher:
2.5.1 £250.00 for a Novel;
2.5.2 £80.00 Novella;
2.5.3 £40.00 a Short Story.
2.6 In consideration of any payment made according to clause 2.5 or clause 2.7, the Publisher and the editing staff agree to release any and all further claim to payment for the final edited version of the Work.
Storm Moon Press also wants to retain the right to edits, though its demand for payment appears only to apply to its own formatting and typesetting (to which publishers typically do claim ownership).
All rights to the original Work as submitted will revert to the Author without prejudice upon expiration of this contract. Should the Author wish to acquire rights to the final formatted and typeset digital files, he or she agrees to compensate Publisher in the amount of two hundred dollars ($200). In consideration of this payment, Publisher agrees to release any and all further claim to compensation for the finished Work.
Some of the same language appears in this contract from eXtasy Books Inc.--but note how the payment demand has been shifted to "the final edited version."
All rights to the original Work as submitted will revert to Author without prejudice upon expiration of Contract. Should Author wish to acquire rights to the final edited version, he or she agrees to compensate the assigned editor and/or copyeditor in the amount of $500 less royalties received for the editor or $250 less royalties received for the copyeditor. In consideration of this payment, the editor/copyeditor agrees to release any and all further claim to compensation for the finished Work.
Crooked Cat Publishing's contract does not include a copyright claim on editing--but it makes the demand after the fact, in its reversion notice. Beyond any other legal questions, a publisher has zero standing to demand something that's not in the contract.
We kindly ask that you NOT use the completed final, edited copy of this title to re-submit elsewhere or self-publish. We request that you make changes, however subtle, to the content of the edited, released version, so that it is not an exact re-publication of the version we published.
Claret Press is another publisher that makes extra-contractual claims on editing, using this dubious logic:
At the moment, because you have not paid for...edits, the intellectual property still belongs to [the publisher]. If you do not use any aspect of the edits, then you do not have to pay....If however, when you publish the books, there is any aspect of any piece of your writing that relates to anything in the...edits...then you have violated [the publisher's] ownership of...intellectual property.
Writer Beware, indeed.

For any lawyers reading, I'd be interested to know your thoughts on this issue.

11 comments :

Allen F said...

Ouch, red flags indeed as this basically forces the writer to 'change' their book in order to resell it.

As to the writer paying an editor, sounds like the writer needs the editor to sign a simple contract admitting that they are working for the writer and that all rights remain with the writer.

So many hoops to jump through/watch for just to try to keep others honest ...

Jennifer R. Povey said...

I've heard of this far too much.

(That said, it's not a bad idea to at least re-proof your book if you do get your rights back, as stuff slips through and publishers will sometimes refuse to fix typos and errors. It's a new edition anyway, so why not fix any issues?)

Weirdmage said...

"Contract may be terminated by either the author or publisher with a 90-day written, certified mail notice or other receipted or traceable delivery service,"

As someone who has worked for the UK Royal Mail, I find this dodgy.
They say receipted, which may mean that if they refuse receipt they will ignore it.
Having worked for amail carrier I would phrase that as:
"Contract is deemed as terminated 90 days after proof of mailing of termination by author or publisher."
Email would be enough in Europe for this.

Roger said...

I am a lawyer (I do most of my work in the film and television realm, though I handle some publishing agreements).

Strictly speaking--yes, there is at least the potential of the modifications made to a manuscript being substantial enough to constitute a copyrightable work. Of course, such would be deemed a derivative work based on the underlying manuscript, and the extent of the publisher's copyrighted interest would only be the thin veneer of modifications its editor added. Should the publisher's rights in the underlying manuscript terminate, the elements it owns would almost certainly be useless.

The main utility of owning such marginal copyrighted material that I could imagine would be to act as a sort of "copyright troll" if the author neglects to excise the elements added by the publisher's editor before publishing or otherwise exploiting the book elsewhere.

Anonymous said...

Frankly, most of the small-press "edits" I've received on my e-published works have been so poor that I was happy to ditch them on the reversion of rights. I went back to my original ms. and started fresh when it was time to republish. Too many micropress "editors" have no feel for language, impoverished vocabularies, and only the shakiest understanding of the finer points of grammar (for example, adding apostrophes to create plurals and not knowing the difference between coordinate and coordinate adjectives). They can keep those "improvements." I've never had them do any more substantial edits. YMMV.

Anonymous said...

Obviously, that should have been coordinate and noncoordinate adjectives. Dang autocorrect!

Anonymous said...

Entangled Publishing also has this stipulation. I was told to use the original submission to re-publish when I got my rights back not the edited version.

Victoria Strauss said...

I've heard that about Entangled, but didn't have any documentation so I didn't mention it. Would you be willing to share whatever document you received with this request? I take it the copyright claim isn't in the contract?

Anonymous said...

I’m a retired lawyer, but my focus was US tax law. Several years ago I familiarized myself with US copyright law to the extent that I feel comfortable enough to comment on this situation, but certainly am not in a position to opine in any definitive way!

Copyright would seem to have very little to do with the real legal question. I see the real question as one of contract law. I strongly doubt that any copyright claimed by a publisher for editing would make it past the preliminary motion to dismiss were it taken to court on that basis alone.

But a claim based on the contract is a different matter. In theory, the samples in the blog post might provide a publisher a legal basis for preventing publication of a manuscript even if only a single comma were changed in the editing process.

More seriously, I can imagine a cogent legal argument supporting the publisher in a situation where the writer, starting from the reverted copy of the original manuscript, does some editing that replicates to some extent the edits the publisher had previously made.

Bottom line on this is a variation on Bill Clinton’s observation: “It’s the contract, Stupid!”

Sophie Kisker said...

"Because you have not paid for... edits"
Then what the heck was that 50% or more of the royalties given up to them for? 😠

Victoria Strauss said...

Another legal opinion, from a lawyer who sent me this comment via email:

"The copyright theory behind the publisher's contribution is that the publisher's edits represent 'sweat of the brow' that entitles the publisher to a copyright interest in what it contributed to.

There's just one tiny problem with that theory: It was explicitly rejected in US copyright law nearly three decades ago, in Feist Pubs. Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). And although the rejection hasn't been quite as explicit in the EU and UK, it has been rejected as insufficient to create a copyright interest for both music transcriptions (from obsolete notation systems common during the Renaissance; the UK judge noted, slightly paraphrasing, that since the goal of the transcription was accurate reproduction and nothing creative, granting a copyright interest for merely applying judgment to the old notation to make new notation faithful would be "ineluctibly inconsistent with the very purpose of copyright") and text (two German and one Italian decision, plus two EU court decisions, all pointing the same way, that I'm aware of).

Why am I not surprised that publishers are trying to claim by contract what the law does not otherwise give them? What they should, instead, be doing is making a claim on edits that are substantial enough to amount to coauthoring, and then only with the author's prior approval (because that's required for an enforceable coauthoring agreement). In other words, this CANNOT be in a publisher's boilerplate, because it depends on BOTH pre-work approval AND enough work actually being done to merit coauthorship."

 
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