Rights vs. Copyright

Posted by Victoria Strauss for Writer Beware

You may have noticed that there were no posts last week. Apologies! I’ve got a humongous workload, and have had to cut myself off from the web almost entirely in order to deal with it. 

I thought I’d be finished by now…but guess what. There’s still more to do. So, rather than leave the blog bare for another week, I’m re-running my post from 2009 on the difference between rights and copyright, in slightly updated form. The subject is as relevant now as it was then: copyright is an area of tremendous confusion, both for writers and–more troublingly–for some publishers.

I’ll be checking in from time to time to monitor and respond to comments. Otherwise, I’ll see you next week!

——————————————–

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–i.e., 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 (i.e.,
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 (i.e., no one else
can use them at the same time) or nonexclusively (i.e., 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–say, three years. 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 70 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 70 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 timeframe 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 on to 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.