Book Contracts 101, Part 7 (copyright notice)

January 19, 2011

Continuing on.

4. Copyright Notice: Publisher shall apply for copyright in the name of the Author within three (3) months of the first publication of the Work. Publisher will include in its edition of the Work on the pages specified by United States copyright law the following notice(s): "Copyright 2011 by Mark Terry".

Seems straightforward, doesn't it? And very nice of them. Copyright is an interesting legal thing and again, I'm not an attorney. But generally speaking, once you write (not when you publish it), the work is copyrighted and you don't even need to put the little copyright symbol on it. Having someone pay for the registration with the US government is a formality and protects everyone involved. This is a standard clause in a book contract.

However, read this one:

14. Copyright and Intellectual Property Rights.

(a.) For purposes of this Agreement “Property” means any invention, technical information, data, computer software, literary works and all documentation thereof including without limitation source code, data base, improvement, design, copyrightable work, trademark or know-how which (1) is conceived, reduced to practice, authored, or developed by Authors solely or jointly with Publisher; (2) during the term, or in contemplation, of this Agreement; and (3) relates to the Book or the subject matter of the Book. All such Property shall become the personal property of the Publisher.

(b.) Property, whether or not copyrightable or protectable as a trademark or trade secret, all proprietary rights therein, and all material objects related to the Property and produced for the Book or Publisher’s benefit or at its request shall be exclusively owned by Publisher. All works related to the Book or specially ordered or commissioned by Publisher which may qualify as a work made for hire under the copyright law (17 U.S.C. 101) shall be considered a work made for hire, and Publisher shall be the exclusive owner of such works. Each Author hereby agrees to assign all such works made for hire and all copyright rights or other literary rights related to the Property or the Book therein to Publisher and hereby grants and assigns to the Publisher all their right, title and interest in and to the Book, and the Property and all literary property therein, including all copyrights throughout the world now or hereafter provided, as well as all renewals and extensions of copyright throughout the world, now or hereafter provided. Authors will assign, and do hereby assign, all right, title and interest in the Book, the Property and all proprietary rights therein to Publisher and will assist Publisher and sign all lawful documents for obtaining and perfecting the proprietary rights for the Book worldwide. All attorney fees and government fees relating to the proprietary rights and the preparation of any assignment or other documents to evidence the transfer of such rights to the Publisher shall be paid by Publisher, including, but not limited to the cost of registering the copyright and recording the assignment to the Publisher.

I highlighted in red the offending clauses. Yes, this was offered to me and my two co-authors for a nonfiction book. At the time, our agent suggested we walk if we couldn't change this. I agreed. The two co-authors agreed. I was basically the ghostwriter in this gig. The publisher refused to change this. The agent walked. The two co-authors caved, and because what I most wanted out of it--after a great deal of arguing on my part--was a published nonfiction book with my name on it and a ghostwriting gig in my portfolio, I went along with it. I'm accustomed to work-for-hire deals, although I wouldn't recommend it for a book project of this sort (certainly not one that has my name on the cover).

This is not an entirely outside-the-norm kind of stipulation in certain types of academic publications. That doesn't make it any less wrong. Basically the publisher is saying they own all the intellectual property. Go back to my first post and read what I had to say about IP and licensing of rights. See the conflict?

If you run into a contract clause like this for a novel or for numerous other types of creative endeavors, I encourage you at the very least to think long and hard about what this means. I encourage you to run for the hills just as fast as you can if it freaks you out sufficiently.

Why? I'll give you two examples. One is from this book project.

1. At one point one of my co-authors wanted an expert to come in and write a chapter of the book. I wasn't too happy about this, but I spoke with the expert on time management and we discussed things, especially in light of that she wouldn't be doing it for any money. Eventually she said she'd do it if she could use that chapter on her website and in her marketing materials. I told her, because of the copyright concerns, that could be a huge problem. She ran it by one of my co-authors who said, basically, "Oh, just put it up, it's not a problem." The expert was smart enough to realize the co-author was blowing smoke (to say the least). So, per my suggestion, we ran it by the publisher. The publisher asked a few dozen questions concerning size of the materials, what she would be using it for, and basically said, "No, you can't without reimbursing us, we own the copyright." The expert quite wisely said, "Thanks, but no thanks." It had the potential, after all, to tie up her intellectual property and create conflicts with materials she routinely used in her own business.

2. My brother is a college professor and music professor and composer. I talked to him about this clause. He had an interesting experience with it as a composer. Back some time ago, in college, I believe, he wrote some electronic music. A recording was made and the publisher paid him money and offered him a copyright deal very much like the contract above did. He cashed the check--he was in college, I think, and undoubtedly needed the money. It's possible he also didn't know any better. Anyway, what happened was a few years later the owner of the copyright resold the music to PBS to be used as the soundtrack for a fairly popular TV show that was on the air for several years. What did my brother get out of this? Zip. Zero. Nada. Not a cent.

And that, boys and girls, is why you pay attention to things like this.