Saturday, June 14, 2008

Writers' Contracts - Frequently Asked Questions

Anji Pratap, a book publishing contracts consultant with nine years' experience at a top literary agency talks about publishing contracts.



So, you’ve just been sent a contract to sign with your publisher…

If you’ve got an agent they should take care of things for you, although it’s always an idea to understand a few basics yourself. If you’re unrepresented, it’s even more important to be able to interpret your contract.

There’s a lot of mystery surrounding contracts and copyright that needn’t be there. It’s true that there are elements of contract law, copyright law and a few different business models to understand. On the other hand, it’s not difficult. Contracts are, quite simply, a written record of the arrangement you have reached with a publisher and of how you intend to proceed in the future. They are legally binding, but so having a meal in a restaurant!

Today, I’m starting with the cornerstone of every publishing contract: copyright. I’m not a copyright lawyer although I’ve studied copyright a little and I’ve picked up a working knowledge of it from being in the industry. But that’s my point really. We do need the experts but that doesn’t mean that the rest of us can’t understand a thing or two.

So, what is copyright anyway?

Copyright started out literally as just that - the ‘right to copy’. It remains that, but nowadays it encompasses other things too. In Henry VIII’s time, it was used for censorship: copyright was only given to government stationers and anyone else printing books was outside the law. By Queen Anne’s time the emphasis had shifted to protecting authors. It meant that the person owning or controlling copyright had the right to make copies and the right to prevent others from making copies. Today copyright includes, among other things, the right to make (and to stop others from making) adaptations – for example translations or films. This deceptively simple right, which may be sold, lent or given away in a similar way to tangible property, forms the economic basis for many industries including music, film, and computer software as well as book publishing.

Do I need to register copyright?

In the UK you don’t need to but there are different rules in other countries. In the UK copyright arises as soon as an original work is recorded in some form.

Does copyright protect my idea?

No, even if your idea is set to paper, copyright only protects the expression of an idea. This can be galling sometimes for creators. Perhaps you’ve had the experience of sending your work to a publisher, agency or TV company who have rejected it? Yet the very next year they’ve put something out based on your idea? My feeling is that this happens more because ‘there’s nothing new under the sun’ and that when people are subject to similar influences they often come up with the same ideas and that there was no copying involved. When I worked in a literary agency I knew of at least two instances where two different authors were writing a book about the same, pretty obscure, area. Very galling for each author but they’d both decided independently to write their books. I think it was more than coincidence but I don’t think it was anything sinister. Maybe they were both influenced by something in the news or even a book that they had both heard about.

Of course there will be occasions when an idea is lifted. In a sense, this partly what was claimed in the Da Vinci Code court case. I don’t know whether Dan Brown ‘took’ ideas from The Holy Blood and the Holy Grail but even if he did there was nothing legally wrong with that.

Will my copyright run out?

Not while you’re alive! But eventually it will. Currently copyright in a published work in the UK last for the life of the author plus seventy years.

Why do some publishers let you keep your copyright and others not?

Some publishers insist that you ‘assign’ (give) them copyright and others are content with a licence of rights.

The difference between being able to retain your copyright and giving it away might seem massive. And it’s certainly an important philosophical point. Where you retain your copyright you still own your intellectual property and the right to put your name next to the © copyright sign.

Arguably, however, what’s important is not so much what you’ve got but what you’re allowed to do with it. The commercial value in your retained copyright really depends on the type of licence you’ve given and it is very rare that a publisher would accept anything less than an exclusive licence – often for as long as there is copyright in the work. This means that your publisher has the right to control all the rights you have licensed to them, to the exclusion of all others – even you, the author! So, retaining your copyright under these circumstances is more a question of principle than practicality. Of course, it’s important to remember that when you licence rights you don’t necessarily have to give a publisher control of everything. But actually that is true of an assignment too – for example when a film follows on from a novel publishing rights have to be withheld from what is normally a full copyright assignment to a film company.

There are times when you’ll be faced with an assignment. There are a number of reasons why this might happen. It might be simply that an author’s bargaining power cannot ‘buy’ them an exclusive licence: for example where a concept is originated by a publisher and the author writes for a commission. In film and television, copyright assignment is often required: media companies are keen to have the perceived added control that an outright assignment affords and they often have the clout to push this through. It might be simply that the reward of lots of money makes it worth an author’s while to give up copyright. In other circumstances it simply makes sense: where text and illustrations created by different individuals are heavily intertwined and of little value alone a publisher may wish to control copyright in the ensemble to give them more flexibility and the work better protection. Or it could be for a combination of these and other reasons.

So, although it sounds better (and probably is better) for an author to own something and license it rather than give it away, being on the end of a copyright assignment is not the end of the world: the important thing is to be aware of exactly what transaction is happening, for how long and why. And also, whether you can ever get your rights back – for example if the publisher goes out of business or stops selling your book. However, some publishers initially requiring assignment may, when questioned, accept an exclusive licence or at least give reasons for requesting copyright assignment.

What are ‘rights’ and ‘sub-rights’?

You might have heard publishing professionals talk about rights. What exactly are they and how have we moved from the singular of ‘copyright’ to the plural of ‘rights’?

You’ll appreciate that a right to publish a book in the English language in the United Kingdom is different from the right to produce an adaptation in the Spanish language of the same work for television broadcast through the world. It is likely not only that they are going to be destined for different audiences who will not compete for exactly the same product, but that different companies are going to be in a position to develop different rights. And that really is all we mean when we talk about rights. Just the splitting of an author’s overall rights into a myriad of sub-rights - for example rights in translation, serial (selling of sections of your work to a newspaper or magazine), large print, audiobook, performance rights (including film and TV and theatre) and so on.

Obviously the perfect scenario for a publisher is to get as many rights as possible so that they can make money from them. However, some authors, particularly agented ones who are in a good position to exploit their own rights, withhold some - particularly media and translation rights. And there are some rights that are regarded as so close to the core right of book publishing that even agented authors will nearly always have to give them to a publisher: for example large print rights, rights to sell extracts for anthologies and paperback publication rights.

Again, it’s not the end of the world if you have to give your publisher a lot of rights. Particularly if you’re not agented, the publisher might be in a much better position to exploit the rights for which you will normally receive a share of the income. (More about this when I talk about money next time).

However, it is important for everyone to know what rights they are getting. If you’ve given your publisher media rights you would be in breach of contract with them (breaking your promise to them and leaving yourself open to being sued) if you sold rights to a film company independently of the publisher even if you did the hard work by setting up the deal yourself. This applies whether you have retained your copyright (and given the publisher an exclusive licence) or assigned it.


Brian M Logan

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