We’re often asked if there’s a difference between copyright and publishing rights … and you bet your wee cotton socks there is.
Queries about rights tend to peak when, as recently happened, many authors are caught up in the sudden and simultaneous closures of two or three smaller publishing houses.
Some houses have the decency and the nous to make fair provision in legal agreements for the immediate reversion of all rights if things come to the worst. Others lack one quality or the other, and that can make life difficult for those innocent authors cast adrift without a paddle.
And though it’s often more a matter of new publisher-inexperience than malice (not that becoming aware of this after the fact helps you reach safe haven), make no mistake that there is no shortage of nefarious dealers that will deliberately hogtie rights that should be yours.
So here’s the definitive low-down from Victoria Strauss who, together with Ann Crispin, runs the most sharp-toothed authors’ watchdog organization on the planet, the excellent WRITER BEWARE. Many thanks to Victoria for the generosity of spirit she shows in allowing us to, once again, re-publish on our own blog her dire warnings and astute advice.
BeWrite Books, by the way, is relieved to find that it ticks all the right boxes in the following article. And a sample of our draft author agreement is in plain view at the end of our detailed SUBMISSIONS GUIDELINES BROCHURE on site. (This is a mini-ebook in its own right, so please give it between two and five seconds to download.)
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 – ie: 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 (ie: 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 (ie: no one else can use them at the same time) or non-exclusively (ie: 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. 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 seventy 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 seventy 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 time-frame 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 onto 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.
Thanks again, Victoria.
Take this sound advice, ladies and gentlemen, lads and lassies: Whether signing an agreement with BeWrite Books or any other publisher … be sure you know your rights.
Best wishes. Neil, Tony, Hugh and Sam.