PROTECTING YOUR COPYRIGHT (Part 1 of 2)

From Rick:

In the last two blogs I discussed copyrights at some length: what they are, how you get them, and what they protect. One thing I didn’t cover was how to protect your copyright rights.

“Wait a minute,” you say. “What do you mean ‘protect’ my copyright? Don’t I have one automatically once I start writing my story, and it’s mine for a very long time, and I don’t even have to register it to be protected?”

All true. Copyrights are automatic once you begin to create your work, be it writing, music, audio, or photographs. You don’t have to do anything except put your creative thoughts in some tangible, transferable media—hardcopy, digital, or electronic—and you’re protected. But that leads me into…

Screwing yourself out of your copyright

Like any legal right, a copyright can be sold or transferred—temporarily or permanently—and the most frequent way this happens is when you enter into a publishing contract. To do their job, publishers need to be in full control of a work (or think they do/should be) in order to print and sell it, and that means the publisher needs your permission in writing. This is what many authors who sign with a traditional publisher fail to understand.

There are two ways by which copyright rights may be transferred: assignment or license, and we’ll discuss the difference in more detail in the second part of this topic.

But let’s back up a minute. A copyright means that the owner controls the rights to copy the work in any form (as well as the rights to do other things with it, including adapting it to other media).

When you enter into a publishing contract, you need to give the publisher permission to make those copies for sale. Even when you self-publish through Amazon, Apple, Smashwords, Kobo, etc., you agree to let those companies distribute copies for sale.

The difference is that, by self-publishing, you do not relinquish control of the copyright (hopefully not, anyway). You are normally giving those companies permission to print, copy, and distribute according to your wishes, and you can tell them when to stop doing so, within limits.

NOTE: Here begins a long stretch of doom and gloom for an author.

Assigning your copyright

With a traditional publisher, the situation is different. Let me illustrate with an excerpt from a typical publishing contract. This wording or similar is usually found under a heading of “Grant of Rights”:

Author hereby grants and assigns to Publisher for the term of the copyright the sole and exclusive right throughout the world to print, use, manufacture, publish, distribute and sell the Work in book form, in digital format…

Some contracts with smaller publishers may limit the term of the contract to a few years. I’ve seem those be anywhere from 3 to 10 years. More typically with larger publishers, the term is for the term of the copyright (as stated in the contract above). And how long is the term of the copyright? In Part 2 of this copyright series, I showed you that it’s “the author’s life plus an additional 70 years.

Whoa. That’s a LONG time to give up your copyright for. Probably not even your kids will be able to touch it—maybe your grandkids will, though. So, if you sign a contract like that, you are basically giving up the copyright until or unless the rights revert back to you. (But I’ll talk about a possible legal out in the second half of this.)

Any good contract should have a reversion clause that specifies under what conditions you get your rights back. Sadly, many reversion clauses can be (and often are) written in such a way that, while they seem to protect the author, in reality they screw the author and are basically meaningless in terms of your ever getting back the rights in any reasonable timeframe.

For example, let’s say the reversion clause says you get back your rights if the book goes out of print. What does “out of print” mean today? In the past, publishers did print runs, and if they decided not to do any more and used up all their stock, then the book was usually declared be out of print, and your “out of print” reversion rights kicked in.

Just to be clear, “out of print” was usually defined in the contract to mean something like “no longer available to purchase from the publisher or its distributors” or “not available in sufficient quantities to meet the current demand.” And the contract often specified some time period for it to be in this state of unavailability before the author could ask for the rights back (and you usually had to ask—it wasn’t automatic).

I’ve even seen contracts that give the publisher the chance to reprint it or make it available through some other source (such as a book club) once the author asks about getting the rights back. This was put in the contract to prevent the rights from reverting, at least easily.

Today, with print-on-demand technology, in theory a book would never go out of print because publishers don’t need to do print runs. As long as someone can print it on demand, it’s still “in print.” Likewise, with e-books, “out of print” is all but meaningless because there’s no printing necessary. With e-books, the only clear definition of “out of print” is that a book is made unavailable for purchase anywhere by the copyright holder. Before signing a contract, it’s up to the author (perhaps with an intellectual property attorney) to ensure that the rights can indeed revert under some reasonable and attainable conditions.

In the past, authors often had no choice about assigning their rights for the term of the copyright. It was either that or no publishing deal. Most authors, wanting badly to be published, agreed to the terms, rarely realizing the potential negative consequences.

I was fortunately enough to have my first publisher agree to revert the rights because they no longer planned on doing anything with the book, but that isn’t always the case. Some publishers doggedly retain the rights even though they don’t plan on selling your book ever again. Or maybe they’re hoping a movie deal will come along years down the road and they’ll be able to reprint the book and make a killing. It’s just something some publishers (more often the bigger ones) do. If you plan on going with a traditional publisher, be sure you understand what you’re signing away and for how long.

Therefore, an assignment of copyright means that you no longer have control over whatever rights that you assigned (meaning signed away). If you attempt to re-publish your work on your own (or with another, publisher) without getting the rights back, you can be sued for violation of copyright, the same as if someone copied your work without your permission while you control the copyright.

—HERE ENDS THE DOOM AND GLOOM.

Next time, I will finish up this series on copyrights on more positive notes.

–Rick