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Thread: contract copyright question

  1. #1
    jcarol
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    contract copyright question

    I am about to sign my first book contract (with a small press). It says the copyright will be in the publisher's name. What are the ramifications of agreeing to this? Shouldn't the copyright be in the author's name? I'd appreciate knowing the pros and cons of each side, and whether this is cause for concern. (The publisher is small but seems to have a good reputation, as far as I can determine.)

  2. #2
    Gone
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    Hi, jcarol. Yes, I'd be concerned about the copyright being in the publisher's name. It is more usually in the author's name. Is this a work-for-hire situation?
    Winner of Uncle Jim's Whoo Hoo Super Writer Award and Nomad's Most Use of Vowels in a Screen Name Award as well as Maryn's Only Person on AW Whose Name Anagrams to "I, Octane," "Act I (One)" and "Nice tao" Award in addition to batgirl's Culpeper Award for Botanically Erudite Screen Name plus awatkins' AW's Most Creative Srounger [sic] of Rep Points Award not to mention azbikergirl's Arizona Most Awarded Writer Award and also Dawno's Most Interesting Signature Line Award

  3. #3
    jcarol
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    No, it's not. Why would the publisher want it that way? My inclination is to ask for it to be in my name, but if she protests, what is my argument?

  4. #4
    fantasy dweller
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    JC, Take thee and your contract to an attorney who specializes in contract law.

    If this copyright clause is any indication, my guess is you'll be signing away more than copyrights.

  5. #5
    practical experience, FTW Tilly's Avatar
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    Quote Originally Posted by jcarol
    No, it's not. Why would the publisher want it that way? My inclination is to ask for it to be in my name, but if she protests, what is my argument?
    That it is completely non standard. And frankly I'd be very suspicious.

    Does anyone know what would happen over such a contract when the rights reverted back to the author (if they could in this scenario), or if a larger publisher wanted to pick the book up?

    And I second Citymouse over the lawyer thing.
    Last edited by Tilly; 07-04-2006 at 09:18 PM.

  6. #6
    Your Genial Uncle Absolute Sage James D. Macdonald's Avatar
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    Say "The copyright will be in my name." That's non-negotiable. Take it from your Old Uncle Jim who learned this the hard way. (And you can't negotiate if you aren't prepared to walk away from the table.)

    If they refuse, remember that if your book is publishable by one it's publishable by many. A publishable manuscript is a rare enough commodity that it's valuable. Find one of the others that will let you keep copyright (and pay royalties based on cover price, too, as long as we're talking "non-negotiable").

  7. #7
    jcarol
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    I get that this is important (I already intuited that), but just so I am better educated about it . . . why would the publisher want the copyright?

  8. #8
    practical experience, FTW Tilly's Avatar
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    Quote Originally Posted by jcarol
    I get that this is important (I already intuited that), but just so I am better educated about it . . . why would the publisher want the copyright?
    I've only heard about it in relation to work for hire. I suppose it gives the publisher greater control of the work, but I'm not sure of the exact reason, particularly in your context.

  9. #9
    jcarol
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    Re: this -- "pay royalties based on cover price, too, as long as we're talking "non-negotiable" -- is cover price the same as retail price?

  10. #10
    Writer Beware Goddess Absolute Sage victoriastrauss's Avatar
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    Quote Originally Posted by Tilly
    Does anyone know what would happen over such a contract when the rights reverted back to the author (if they could in this scenario), or if a larger publisher wanted to pick the book up?
    If a publisher takes copyright, the rights never revert to the author. That's the whole point. The author is passing ownership of the rights to the publisher, forever. The benefits of such an arrangement to the publisher are obvious. For the author, it sucks.

    Some inexperienced small publishers demand that copyright be in their name without realizing what they're asking or what the ramifications are. I've seen contracts where the publisher takes copyright, and then claims to return it when the book is taken out of print. There's no purpose whatever to such an arrangement--it doesn't benefit either the publisher or the author. All it does is display the publisher's ignorance of standard contract terms (which is never a good sign).

    Without knowing which publisher you're talking about, jcarol, I can't judge which situation you're in. Either way, though, taking copyright is a major warning sign--either of an unscrupulous and greedy publisher or an inexperienced and ignorant one.

    If you don't want to say publicly who the publisher is, feel free to contact me privately--beware@sfwa.org.

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  11. #11
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    Quote Originally Posted by jcarol
    I get that this is important (I already intuited that), but just so I am better educated about it . . . why would the publisher want the copyright?
    Okay, note that I am not a lawyer, much less a publishing lawyer, and that my explanation is a very crude and simple one. Use it only for a general understanding of the situation.

    The copyright being in the publisher's name pretty much makes the book theirs instead of yours. This is bad, generally speaking. You should retain copyright; the publisher gets certain publishing rights, not the copyright.
    Winner of Uncle Jim's Whoo Hoo Super Writer Award and Nomad's Most Use of Vowels in a Screen Name Award as well as Maryn's Only Person on AW Whose Name Anagrams to "I, Octane," "Act I (One)" and "Nice tao" Award in addition to batgirl's Culpeper Award for Botanically Erudite Screen Name plus awatkins' AW's Most Creative Srounger [sic] of Rep Points Award not to mention azbikergirl's Arizona Most Awarded Writer Award and also Dawno's Most Interesting Signature Line Award

  12. #12
    Now departed. Rest in peace, Scott, from all of us at AW Requiescat In Pace Popeyesays's Avatar
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    My suggestion would be to register the copyright TODAY by electronic means. Then simply write the pubisher back and say the copyright is already in your name. Then they can like it or lump it. If they lump it, it was not a good deal in the first place, and you will have avoided the promblem at the next contract negotiation.

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  13. #13
    Such a nasty woman SuperModerator Old Hack's Avatar
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    Which publisher is this? It would be interesting to know.

    It is undoubtedly iffy for the publisher to expect you to hand over the copyright of your work outright (which is what they're demanding) unless this is, for example, a non-fiction book you're writing for a packager, rather than a publisher.

    The good news is, as Uncle Jim has already pointed out, that if one publisher is interested in buying your work, then another probably will be too. Further, if you have an offer from a reputable publisher then you'll be able to find yourself an agent pretty easily. Do it now. And then your agent will deal with all these questions for you and almost certainly get you a better deal that you'd be able to get on your own.

  14. #14
    New Fish; Learning About Thick Skin
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    It is usual for a copyright to be registered in the author's name.

    The copyright will then typically be assigned to the publisher for the duration of the book's run in print. Whether this assignment will cover only print, or will also extend to subsidiary rights, is one of the things discussed in contract negotiations.

    Copyright is a function of authorship. Work for hire is a transfer of authorship from the author-in-fact (the writer) to the legal author (the commissioning party, usually the publisher). Even in a transfer of all rights, authorship--and, consequently, the underlying copyright--remains with the author-in-fact, who still retains certain rights.

    If a work is "copyrighted in the publisher's name," it is almost certain that there is a work for hire lurking somewhere; in any event, the author who agrees to such an arrangement is within a whisker of losing his or her authorship claims.

    It is impossible to say more without seeing the actual contract, but if the deal is on the up and up, the copyright will be registered in the author's name.

  15. #15
    Hagiographically Advantaged AW Moderator HapiSofi's Avatar
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    Quote Originally Posted by Daniel Abraham, Esq.
    It is usual for a copyright to be registered in the author's name.

    The copyright will then typically be assigned to the publisher for the duration of the book's run in print. Whether this assignment will cover only print, or will also extend to subsidiary rights, is one of the things discussed in contract negotiations.
    No. You're mixing up grant of rights and copyright.

    Under a standard non-work-for-hire publishing contract, the author is the copyright holder, first to last. That doesn't change.

    The author gives the publisher a grant of rights in return for whatever the publisher pays them. This grant of rights gives the publisher the right to publish the book in North America, or the World English market, for some finite term: usually either a fixed span of years, or until the book goes out of print. It also gives the publisher some mix of subrights.

    Somewhere in the contract, there'll be a paragraph saying that the publisher shall copyright the book in the name of the author, and giving the exact form of the name under which it shall be copyrighted.

    Actual transfers of copyright are quite rare, outside of commissioned work, work-for-hire contracts, tie-ins and other proprietary projects. If it was the author's book to start with, the publisher ought not be asking for the copyright.
    Copyright is a function of authorship. Work for hire is a transfer of authorship from the author-in-fact (the writer) to the legal author (the commissioning party, usually the publisher). Even in a transfer of all rights, authorship--and, consequently, the underlying copyright--remains with the author-in-fact, who still retains certain rights.
    There's no such thing as a publisher's copyright with an underlying auctorial copyright. Copyright is copyright. If the publisher has it, the author doesn't, and vice-versa, unless they copyright it jointly. And it's entirely possible to be the author of a book but not hold copyright on it. Just ask Jim.
    If a work is "copyrighted in the publisher's name," it is almost certain that there is a work for hire lurking somewhere; in any event, the author who agrees to such an arrangement is within a whisker of losing his or her authorship claims.
    No. The author is still the author. What they lose is the copyright.
    It is impossible to say more without seeing the actual contract, but if the deal is on the up and up, the copyright will be registered in the author's name.
    It seems to me that in this case the author ought to keep the copyright, but there are perfectly legitimate contracts where the publisher gets it.

    Sorry if I seem contentious. Not my intent.
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  16. #16
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    Quote Originally Posted by HapiSofi
    No. You're mixing up grant of rights and copyright.

    Under a standard non-work-for-hire publishing contract, the author is the copyright holder, first to last. That doesn't change.

    The author gives the publisher a grant of rights in return for whatever the publisher pays them. This grant of rights gives the publisher the right to publish the book in North America, or the World English market, for some finite term: usually either a fixed span of years, or until the book goes out of print. It also gives the publisher some mix of subrights.

    Somewhere in the contract, there'll be a paragraph saying that the publisher shall copyright the book in the name of the author, and giving the exact form of the name under which it shall be copyrighted.

    Actual transfers of copyright are quite rare, outside of commissioned work, work-for-hire contracts, tie-ins and other proprietary projects. If it was the author's book to start with, the publisher ought not be asking for the copyright.There's no such thing as a publisher's copyright with an underlying auctorial copyright. Copyright is copyright. If the publisher has it, the author doesn't, and vice-versa, unless they copyright it jointly. And it's entirely possible to be the author of a book but not hold copyright on it. Just ask Jim.No. The author is still the author. What they lose is the copyright.It seems to me that in this case the author ought to keep the copyright, but there are perfectly legitimate contracts where the publisher gets it.

    Sorry if I seem contentious. Not my intent.
    As an attorney whose practice consists largely consists of dealing with copyrights, in both transactions and litigation, I must correct you on the following points:

    1) There's no such thing as a publisher's copyright with an underlying auctorial copyright;
    2) Copyright is copyright. If the publisher has it, the author doesn't, and vice-versa, unless they copyright it jointly. The author is still the author. What they lose is the copyright.
    Copyright is a function of authorship. Work for hire is a transfer, not of the copyright or any of the endlessly divisible rights which comprise it, but of the authorship of the work, from which all copyright claims flow. An author who transfers his or her work under a work for hire contract loses authorship and becomes, in the eyes of the law, a mere appendage of the "true" author--the work for hire transferee.

    The transfer of authorship is what renders work for hire fundamentally different from an all-rights transfer. An author who grants a licensee or assignee all rights under the copyright still retains his or her authorship. In a standard publishing contract, this means that the rights will revert to the author if/when certain conditions are met (e.g., the work goes out of print), because the underlying copyright resides with the author. Even under a contract in which the author transfers "all rights in perpetuity in all media now known or hereinafter invented," the author, or his or her heirs, retains the right (under current law) to terminate the transfer after 35 years, the contract terms notwithstanding. Someone who has relinquished authorship under a work for hire agreement forfeits termination rights; he or she is no longer the author.

    In the course of practice over the last fifteen years, I have frequently found attorneys working in the copyright field who do not understand the fundamental distinction between all-rights transfers, under which authorship is retained, and work for hire, under which authorship itself is transferred.

    You are correct on the following points--none of which, by the way, contradict anything I have said:

    1) Under a standard non-work-for-hire publishing contract, the author is the copyright holder;
    2) Somewhere in the contract, there'll be a paragraph saying that the publisher shall copyright the book in the name of the author, and giving the exact form of the name under which it shall be copyrighted;
    3) Actual transfers of copyright are quite rare, outside of commissioned work, work-for-hire contracts, tie-ins and other proprietary projects. If it was the author's book to start with, the publisher ought not be asking for the copyright.

  17. #17
    Hagiographically Advantaged AW Moderator HapiSofi's Avatar
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    If you equate "author" with "copyright holder", no more and no less, then "authorship" does change hands when the copyright is transferred. If you think "author" can also mean "the person who actually wrote the book," or "the person whose name is on the book," or "the person whose sales history will include this title," it works a little differently.

    And if you're "an attorney whose practice consists largely consists of dealing with copyrights," it's a bit startling to see you confuse "copyright" and "grant of rights."
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  18. #18
    haz a shiny new book cover Christine N.'s Avatar
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    I think the point is this..

    If the copyright is registered in the publisher's name, the publisher now owns the work, no matter who penned it.

    If the copyright is registered in the author's name, the author owns the work, no matter who they assign print rights, movie rights, foreign rights or burning in a big pile in the middle of a field singing Kumbaya rights to.

    When you have the copyright in your name, and you sell your book to a publisher, you're in effect selling the right to print the book - NOT the book itself, nor your ownership of it, but the right to print and sell. Means you can't sell the right to print the book to anyone else unless you break the contract or come to some amicable agreement with publisher #1.

    Is that more clear? IANAL, of course, but this is the way I understand it, in my layman's way.
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  19. #19
    Let's see what's on special today.. Bufty's Avatar
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    Isn't it the same as an artist who sells paintings but retains the copyright. Just because A buys the original painting doesn't mean A can make copies into calendars and sell them.

    If A buys the copyright he can do what he likes.

    Subtly different, I know.....
    Last edited by Bufty; 08-09-2006 at 01:18 AM.
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  20. #20
    New Fish; Learning About Thick Skin
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    Quote Originally Posted by HapiSofi
    If you equate "author" with "copyright holder", no more and no less, then "authorship" does change hands when the copyright is transferred. If you think "author" can also mean "the person who actually wrote the book," or "the person whose name is on the book," or "the person whose sales history will include this title," it works a little differently.

    And if you're "an attorney whose practice consists largely consists of dealing with copyrights," it's a bit startling to see you confuse "copyright" and "grant of rights."
    In copyright terms, HapiSofi, "author" means "the person who actually wrote the book in the eyes of the law." Please note the following from copyright law Section 201(b):

    Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. (Emphasis added)

    A W4H author (i.e., the commissioning party or transferee) may contractually agree to grant what you call the "actual author" (the transferor) such things as name credit, or royalties; these things are routine in the world of screen and television. Legally, however, the studio which has acquired the script as a work made for hire is the author, and what you call "the actual author" has forfeited both authorship and any legal claim to the copyright.

    Nowhere have I "confused grant of rights and copyright." You have, however, succeeded in confusing me, insofar as I have yet to see whence you derived this misunderstanding.
    Last edited by Daniel Abraham, Esq.; 08-09-2006 at 02:45 AM.
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  21. #21
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  22. #22
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    Quote Originally Posted by Daniel Abraham, Esq.
    Nowhere have I "confused grant of rights and copyright."
    That would be here:
    Quote Originally Posted by Daniel Abraham, Esq.
    The copyright will then typically be assigned to the publisher for the duration of the book's run in print. Whether this assignment will cover only print, or will also extend to subsidiary rights, is one of the things discussed in contract negotiations.
    I almost wish the publishing industry would adopt the term "license" to replace "rights." I see this sort of confusion all the time--authors thinking that rights are part of copyright, etc.--and I believe it's because the words are so close.

    Although reading Cathy C.'s explanation below "license" might not be the best word either.
    Last edited by roach; 08-09-2006 at 02:50 AM.
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  23. #23
    Ooo! Shiny new cover! Absolute Sage Cathy C's Avatar
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    Well, this is going to be clear as mud to anyone else who tries to follow this conversation, so let me see if I can decipher it for the "legal jargon challenged" among the members:

    The words "author" and "licensee" have specific meanings within copyright law.

    An "author," under copyright law, is the creator of the original expression in a work. But, the person who wrote the book can sign away his/her copyright in the work, making a new person the "author." Here's a link to the Copyright Office's definition page, for those who want more information (including a booklet on Works for Hire)

    Now, a "licensee" is sort of the equivalent of someone who holds a power of attorney for a person (like when a spouse needs to sign legal documents and isn't available on the right day.) The licensee has the FULL AUTHORITY of the person (in this case, the author) to act just as if they were the author. So, a licensee of an author could approach agents, or other publishers, to sell translation rights, or audio rights or even cut the book into sections and publish them in a magazine. And the author can't say no--because they signed away that right for as long as the license lasts. A license is generally for a fixed term, and then, as Mr. Abraham indicates, the copyright returns to the author.

    None of this has anything to do with "grant of rights." The confusing part is, as roach says, because they're very similar words. Also, it's confusing because it's the PUBLISHER who would be taking the author's place.

    A license can a dangerous situation for an author in a publishing contract, because other clauses in the contract may provide that the licensee is entitled to all the MONEY from any later sales--without sharing with the author.

    In the case of your contract, jcarol, I'd strongly recommend you have an entertainment attorney review the contract. It's difficult for anyone on a public forum to be able to advise on the complete meaning without seeing the whole thing (and posting it would be a bad idea.)

    If you go to Martindale.com (which is an on-line directory of thousands of practicing attorneys, all over the world) and click on the Browse by Areas of Practice (intellectual property is the one you're looking for), you can probably find someone in your area who can read it and explain it for you.

    It's truly worth a couple hundred bucks paid to an experienced attorney in entertainment law to protect yourself.

    Good luck!
    Last edited by Cathy C; 08-09-2006 at 02:52 AM.
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  24. #24
    Let's see what's on special today.. Bufty's Avatar
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    I'd follow all this legal stuff better if it was restricted to the original question, which relates to a publisher requesting that copyright be placed in their name in respect of their publishing a book NOT made for hire - assuming 'made for hire' means written at the request of the hirer.

    ADDED following Cathy's post - I understand now. Relinquishing one's copyright, even for a short while, is not something one does without full and careful consideration with competent advice.
    Last edited by Bufty; 08-09-2006 at 03:15 AM.
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  25. #25
    Ooo! Shiny new cover! Absolute Sage Cathy C's Avatar
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    But see, Bufty, none of us KNOW the intent without reading the actual document. No, it's not the poster's plan to contract a work for hire, but that might well be exactly what she's doing. Which is why both sides (transfer of the copyright and license of the copyright) are covered.
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    "[Shapeshifter] fans are about to hit the jackpot as Clamp returns to re-energize this amazing series. Searching for layered plotlines and complex characters? Look no further, as Clamp truly delivers!" -- RT BookReviews

    "Cathy Clamp is a visionary author, creating new worlds that are both strong and vividly drawn. Adventure and excitement at its best." -- Yasmine Galenorn, New York Times Bestselling Author

    "A struggling community under attack, compelling action, characters struggling with dark secrets ... FORBIDDEN hit all my favorite notes, and I love the rich world of the Sazi!" - Rachel Caine, New York Times Bestselling Author

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