Conveying Rights: Contracts
In essence, a publishing contract expresses the terms under which the author is conveying rights to the publisher. (Your publishing contract governs the terms even if the copyright is registered in your name.)
You can convey all or part of the copyright in your work to the publisher, and you can negotiate the terms of conveying it.
For instance, you can sell or give a magazine the right to publish one of your poems, reserving all other rights, including the right to publish the poem later in a collection of your own work.
You can convey the paperback rights in your published work to a paperback publisher, and you can specify that the rights revert to you after a period of time—five years, say—giving the publisher enough time to sell out its edition.
You can convey rights exclusively or nonexclusively. One magazine may want the exclusive right to publish a chapter from your forthcoming book. On the other hand, many publishers have obtained the nonexclusive right to publish Carl Sandburg’s little poem “Fog” in their textbooks.
And the rights are not gone for good. Even if the copyright is in the publisher’s name, you can still control most of the rights, depending upon the wording of your contract. As well, you and your heirs have the statutory right to terminate the contract thirty-five years after you granted the rights, or forty years after first publication.
The contract or agreement itself, which the publisher will send you upon accepting your work for publication, can be anything from a simple one-paragraph letter to a book contract running eight to ten single-spaced pages.
An agreement with a magazine tends to be fairly simple. The magazine will usually want only “first serial rights”—the right of the magazine to publish the piece for the first time. The magazine will take copyright in its name and will probably revert all other rights to you, although it should spell out whether it wants to post your work online as well. For maximum international protection of your copyright, you should have the copyright notice in your own name, if possible. Most magazines won’t go for this, but as we mentioned in our copyright chapter, you can always later register all your newspaper and magazine work for a twelve-month period, in your own name, in a single application.
A contract with a book publisher may run to several pages and may address many details—deadlines, schedule of royalty payments, and other matters that may never have occurred to you. Negotiating a contract with a book publisher is where a good agent, if you have one, will come in handy.
Publishing is a partnership between writer and publisher, and the contract expresses the terms of that partnership. Even so, the contract is the publisher’s form, written to favor the publisher’s interests. An agent will recognize from experience which clauses can remain as written and which ones should be changed to improve the lot of the author.
Members of the Authors’ Guild have access to the Guild’s contract form, written to favor the writer. The Guild will also provide advice about a particular contract.
If you are negotiating the contract yourself, you will find that it is written in legalese. There’s no point in asking the publisher to rewrite it in finely wrought literary English, but otherwise you can ask any questions about it that you wish, especially about the rights conveyed.
Somewhere the contract will specify the transfer of rights. Some book publishers may want only particular rights of publication. More commonly, a book publisher will ask you to convey all the rights listed in our copyright chapter—the rights to reproduce, distribute copies, make derivative works, perform, and display the work publicly. That is, the publisher will ask you to transfer your copyright.
You don’t have to do it.
If you convey all the rights, the publisher’s rights and permissions department will handle the tedium of rights negotiations, but you’ll only get a percentage of the income—maybe 50 percent on most rights and 75 percent on the higher-ticket items such as paperback and movie rights.
By retaining as many of the rights as possible and signing an agreement with the Copyright Clearance Center to handle rights, you can hold onto a much larger percentage of the income.
You want to be sure that the contract takes specific account of electronic rights, assigning them either to you or to the publisher.
Your book contract should also have a clause that says that any rights not assigned in the contract belong to the author, not one that says that they belong to the publisher.
Although you can negotiate what rights you convey to the publisher, there’s no point in being contentious about things that are unlikely to come to pass. Is someone really going to produce a Broadway musical based on your botany of southern Ohio?
Contracts tend to focus on who gets the money, but for most writers the money from any one article or book doesn’t actually amount to much, only enough to consider deducting some expenses on your income tax, or to show your friends and family that writing is not just a hobby.
Every contract needs an ironclad termination clause. You want to be able to sell and resell the rights in your work, so you need to specify that rights revert to you at some point.
You might specify cancellation of the contract and a reversion of rights if the publisher does not publish the book by a certain date. That protects your copyright from an honest publisher who lacks the will, skill, or money to publish on schedule, or from a vanity publisher who takes your money and intentionally sits on your manuscript.
Book contracts commonly specify reversion of rights to the author if a book goes out of print in all editions. In that case, you want the burden of proof to fall on the publisher, not on you—the publisher should have to prove that the book is in print, rather than your proving that it is not.
Better, you might specify reversion of rights ten or twenty years after publication. That gives the publisher enough time to make some money and gives you a concrete date on which you can peddle the book, if it still has some life in it, to another publisher.
Besides spelling out the tiny amount of money most writers will make, a book contract also mentions that writers actually assume considerable financial risks that the publisher seeks to duck. A book contract will almost surely include a “hold harmless” clause in which you agree to hold the publisher harmless from suits for libel and other damages. You can negotiate to reduce the effect of this clause by limiting the amount of damages you will pay, but even if the clause is absent anybody can sue anybody else.
Effective or not, the “hold harmless” clause brings home this lesson: you should conscientiously avoid harming other people in your book, either by infringing their copyright, by libeling them, or by invading their privacy.