Your Contract Has Horns: Grappling with the Law, for Writers

COPYRIGHT CUTS AND CONVERSATIONS (PART 2)

= Where we continue to talk slicing things for fun and profit=

[Note: I'm originally posting this on World Book and Copyright Day 2014. If you're interested in copyright at all, there's an NBDB event at the Fort today,  and a copyright-centric creators forum organized by Adam David on April 26. If you're interested at all in copyright, do try to attend!]

Cut by Exclusivity

In most cases, you're going to be asked for exclusive rights, and that's understandable -- publishers are a brand, and publishing a book that's available from another publisher doesn't do much for their brand or their bottom line. But in some cases, such as with short stories, or short comics, or when you're not dealing with a publisher per se but a distributor, there will be a market for your work in more than one venue.

In the case of short stories, what is commonly asked for isn't a broad exclusive right to the story but a First Right, usually in conjunction with other qualifiers -- "First Philippine English Print rights" for example, means that what the publisher is buying the right to publish your story, in print, in English, before anyone else in the Philippines. Note also that usually (unless the law provides for a different presumption) a lack of a qualifier means you're not limiting the right granted in that category -- "First English Print rights" means that you're not qualifying the right by territory, which means this is a Worldwide grant, unless qualified somewhere else in the contract. It's always best to be specific.

Selling a work after it has already been previously published in a language/territory is what's called a Reprint. This is a separate right and not deemed included unless explicitly mentioned in the contract.

Cut by Format

Some publishers are purely print publishers, others are purely digital, and others do a little of both -- but nowadays, it's not surprising for publishers to ask for both print and digital rights, or simply not specify which (in which case they'll have a claim to both), regardless of their specialization. The amount of money some publishers lost by not asking for ebook rights before the rize of Amazon and smartphones is likely ginormous, and many would rather be safe than sorry.

An ebook is not considered a derivative work, so simply reserving those rights to yourself will not do -- you need to be sure that the contract is clear as to whether you are selling the rights to publish in print, digital, or both. Remember, while there are some publishers who handle both print and digital books, that doesn't mean that publisher is your best choice for both formats. Weigh your options.

Also note that the right to publish electronically can mean different things -- you'll want any contract to be specific as to what is granted. "Electronic rights" can technically cover distributing an ebook through retail chains, publishing the work only on the web, etc.

Cut by Term/Contingency

Usually, what is asked for -- and what you should be giving -- in a publishing contract is the license to exploit a right that will remain with you. It's why the copyright notice in your typical novel remains in the name of the author, and why the nightmare scenario with which we opened up this chapter is such a con. It's your work, your copyright, and you're just letting another person/persons exploit that right in return for you getting a cut of the proceeds, for as long as the other party complies with certain conditions.

One of the most important conditions to place is one which specifies exactly when your grant of license will END. The primary way this is done is by way of a set term -- say, a year, five, ten. Generally speaking, a renewable contract for a shorter period of time is preferable. Take note as well if the procedure is one that automatically renews, or requires some action on the part of you or the other party. An automatic renewal usually means you have a window of opportunity to tell your publisher that you're not renewing, and if you miss that window, you're locked in for another term. Circle those dates in the deepest, bloodiest red (or, you know, just put the alarm on your calendar app).

But it's make sure to go beyond a simple statement of the number of years a license should last -- that covers the ideal situation, where you're happy with the publisher. If that's the case, great, good for you, good for them, but a prudent creator prepares for the worst -- and I don't think you'd be reading these little missives if you didn't want to be a prudent creator.

So make sure that you have the right to terminate the contract if the publisher doesn't hold up their end of the bargain.

Beware: Some contracts will have a termination clause -- but one that only lists the ways that the publisher can terminate the contract. Make sure it allows for you to do the same, under analogous conditions. Those conditions usually involve a party not complying with their contractual obligations --

So, ah, make sure that your publisher has some obligations to you in the contract, and not just the other way around.

If the term of your contract is suitably lengthy, one of those obligations should be to keep your book in print or circulation. After all, the reason you entered into a publishing agreement is precisely to ensure that your book is published and sold. If your book is unavailable for more than a short time, then that undermines the reason you entered the contract, and you should be allowed to terminate the contract and look for another publisher if the problem isn't resolved ASAP.

Cut by... Oh, You Get the Idea

There are more ways to cut up copyright than there are to skin a cat. Just don't get too carried away -- no one is going to pay money for a license that is too specific to be of use ("I hereby grant you the Exclusive First Barangay Hustisya Taglish Newsprint Print Rights"), and keep track of the rights you do license, so that you don't double dip.

But when in doubt, cut, cut, CUT! (Please note that this advice only holds true for copyright, and not in any other situation. Yes, I'm talking to you. You, with the knife. Please put it down and back away from your tax forms.)