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March 19, 2021

Contract Red Flag: When a Publisher Claims Copyright on Edits



This is an updated version of a post I published a couple of years ago.

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 claiming ownership of the editing and copy 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 encouraging the author to register copyright or registering on the author's behalf, publishers are acknowledging that there is not. It's hard to know, though, because the issue doesn't seem to have been tested in the courts. There's not even much discussion. Where you do find people talking about copyright in the context of editing, it's usually related to 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 the copyrightability of editorial input (it's on the RWA website, but unfortunately not 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 or story, 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 and stories, 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 panoply of new rights created by the digital revolution. If there were any advantage to preventing writers from re-publishing their fully-edited works, 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 interior 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 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 more 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 is no longer extant, but it too wanted to retain the right to edits, and authors had to pay if they wanted to use them:
All rights to the original Work as submitted will revert to the Authorwithout 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.
Ditto for eXtasy Books Inc.:
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.
Vanity publisher GenZ Publishing doesn't explictly claim copyright on edits, but it does prohibit authors from using them--which is especially obnoxious since it keeps up to $2,500 of authors' royalties to pay for, among other things, editing:
The Author cannot use any version of the book that has GenZ Publishing edits or comments from editors, proofreaders, or other staff associated with GenZ or Zenith Publishing.
Crooked Cat Publishing's contract does not include a copyright claim on editing. However, the publisher makes that 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.

8 comments :

Angela Hoy said...

I wrote about this topic back in 2015. https://writersweekly.com/ask-the-expert/my-publisher-wants-all-rights-to-my-edited-manuscript-that-ill-be-paying-them-to-edit

Judy Penz Sheluk said...

Wow, I can't begin to imagine signing something like this, and as a small publisher of 2 (soon 3) multi-author anthologies, I would dream of doing that. I want my authors to be successful!

Fiona McGier said...

I have some books with Wings Epress, which also has that in the contract. They've made the decision to go exclusively with the big A, and my books are on KU, which means I get jack for royalties.

I was with Whiskey Creek Press for a while, until they were sold years ago. I asked for, and got, my rights back. This verbiage is in their contracts also.

And I've now got some books with eXtasy.

Seems that all of the smaller presses I've worked with do this. I republished 7 of my books on Smashwords--mostly because the big A refused to take down their listing, as a "reader service" just in case anyone wanted to resell a paperback they'd bought there. Which means NO other publisher would touch those books, since they're still listed on the big A. So I self-published them, using the original manuscripts.

I've been published for almost 12 years. Still an unknown, just enjoying writing stories, hoping that someone reads them. I guess being with small publishers is better than self-publishing all of them? Not sure, since none of them provide any promotional help. But a writer's gotta write, right?

Fiona McGier said...

But I've never PAID the editors to do their work, so at least I'm not out that money.

Judy Penz Sheluk said...

Fiona, I've been with 2 small presses ( both went under ) and now have a publishing imprint. That verbiage was never in the other contracts. I'd suggest you don't sign another one like that!

John Floyd said...

Craziest thing I ever heard. Don't EVER sign a contract like this.

jamoche said...

This reminds me of the fuss over Piers Anthony's "But What of Earth?" - Anthony apparently agreed to the usual minor editorial changes, but the purchasing editor hired a copyeditor and told him he was to be a 50-50 collaborator, fully authorized to make major changes. According to Wikipedia it was resolved "under threat of legal action".

~e said...

How is this not a derivative work, owned by original writer?

 
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