If you’ve written a manuscript that’s gotten the attention of a publisher and you’ve been presented with a book publishing agreement, congratulations! You’ve accomplished something many writers don’t, and chances are you’re already represented by a literary agent, or maybe a lawyer, who has already explained all of this to you. But if it’s still early days, or if you’re wondering what your legal rights are if you do sit down and write a book, keep reading.
These comments are written from the perspective of United States copyright law and industry custom there, but the concepts generally carry across to other jurisdictions. When in doubt, or whenever presented with an author-publisher agreement for execution, writers should always retain the services of a qualified representative for assistance.
An important observation, right from the start, has to do with custom and habit in the publishing industry concerning ownership of the book’s copyright. Copyright laws typically provide, as U.S. law does, that all rights in a literary work vest immediately and automatically upon its creation and are retained by its creator unless and until it is transferred or otherwise assigned. U.S. law does provide an important exception to this general tenet in the case of works made for hire, which are defined as either works created by employees in the course of their employment, or works that are specifically commissioned for use as a contribution to a collective work (such as an encyclopedia) or part of a motion picture or other audio-visual work. In those latter situations, copyright in the created work would be owned by the employing or commissioning party, typically a book publisher or a movie producer.
But in most cases, copyright in a book remains vested in its author, and the book publisher is instead given a limited-time licensed grant of permission to do certain things, including publish it for distribution to the general public. Publishers may also seek to acquire certain other rights that they feel can be monetized, such as the right to prepare derivative works including foreign language translations, or dramatic adaptations in the form of movies or phonorecords. But these are always negotiable points and the basic concept is that authors retain all rights in their books, whether those rights are known at the time of the contract or developed in the future, unless they specifically and explicitly contract them away to another party.
The territories in which the publisher may exercise those rights, for what duration of time, and to what degree of exclusivity, are also all negotiable depending on the circumstances. While its perfectly fine and well for a publisher to begin by seeking to acquire an exclusive, worldwide grant of all conceivable legal rights in the work now known or hereafter conceived for the full term of copyright in the work, that all comes at a price and it isn’t the case these days to see such agreements in practice. But unless the publisher (or other acquiring party) has a reasonable means and ability to exploit or exercise the rights being granted, there is no reason to grant them.
In most cases a manuscript will have already been finished by the time a publisher signs it up, in which case the author will also seek as much control as possible over its ultimate presentation as a published work. This typically means final approval over any suggested edits that the publisher may wish to make, as well as final approval over the cover and jacket art for the book and related promotional materials. The parties will also negotiate and agree upon when, exactly, the various appointed rights will either be exercised by the publisher or returned to the author to contract elsewhere. But if the publisher believes in the author so much that they contract his or her work before it’s even been written, delivery requirements and measurements to ensure the writer’s performance under the agreement will be imposed.
Either way, the author’s final delivery to the publisher will be contractually required to be their own original work, created by them and free and clear of any claims or encumbrances from others. To the extent the book contains excerpts or portions of other copyrighted works within it, say some lyrics from a popular song, the author will be required to obtain the necessary reprint permission from the song’s copyright owner(s) at their own expense. It’s therefore typical for the publisher to seek and obtain legal indemnification from authors against any such occurrences.
When and how much the author is paid for his or book is yet another negotiable point. Writers are typically advised to get as much money as they can upfront, particularly when a manuscript has already been completed, whereas a publisher will invariably seek to stretch out any remunerative obligation for as long as possible throughout various points in time. Thereafter, publishers will typically pay royalties to the author resulting from the sales of the work for as long as it is “in print” and distributed by the publisher.
Publisher will keep works “in print” and available to customers for as long as they are allowed, and for as long as they perceive a commercial value in distributing it. However, most books have limited commercial lives in publishers’ eyes, so authors can and should also ensure in their negotiations when and how rights granted to publishers may be returned to them for whatever reason. This may even include the right to purchase physical stocks of existing inventory which the publisher might seek to dispose at any point.
The foregoing is by no means a complete or exhaustive listing of authors’ concerns – we’ve barely scratched the surface – but they are common to almost all book publishing agreements. Like so many other fields of so-called media or entertainment law, industry practice and custom (including clout and leverage) are important factors in the negotiating process and only a handful of attorneys/advisors are likely to have the requisite knowledge or experience in this area to sufficiently represent their clients’ interests. This doesn’t mean that they cannot be found; it simply means you have to know how and where to find them.
(c) 2023 Frank Rittman
