Demystifying Publishing Contracts - new series of posts on Amazing Stories

[MichaelSullivan]

Over at Amazing Stories I'm doing a series of articles related to publishing and the speculative fiction markets. The first in my "Demystifying Publishing Contracts" went live on Sunday and you can find it here. The first one focuses on ownership verses licensing and how to be cautious about losing rights to derivative works or potential problems with series and conflicting publications.

 

[Philip Overby]

I'm going to bookmark this and give it a look when/if I start negotiating any kind of contract in the future. I heard about L.J. Smith losing the rights to her own series before and thought that was rather strange. I guess you have to be careful signing anything. This is especially good for me because I've signed contracts for jobs before without really even looking at them. I'll be more cautious in the future.

In your case, Michael, when you signed your first contract, did you have an agent or lawyer help you or did you negotiate it yourself?

 

[Steerpike]

Sounds like a good series. I'll definitely read it.

Phil - the L.J. Smith example always made me wonder exactly what was in her contract. She must have had a copyright assignment in there at some point, it seems, but from what I've read the contract was with the book packager, not HarperCollins. I'm not sure if that is accurate or not, it seems like a strange party to assign copyright to. Still, a cautionary tale - always read a contract carefully, and if you don't understand something find someone who does.

 

[MichaelSullivan]

In your case, Michael, when you signed your first contract, did you have an agent or lawyer help you or did you negotiate it yourself?

My agent is (or probably more accurately was) a lawyer...and of course she found some things that needed adjustment - in particular some language that would be necessary if screen rights were exercised in the future. But as the one signing, I would't sign anything with a clause you don't understand. If you don't know EXACTLY what a clause means then you need to raise it to your agent and get a clear explanation.

Also always look at a clause with "the worst possible interpretation" For instance, if you read a non-compete clause think about if a sequel or prequel might be considered as a 'competing' product -and if the answers is "it could be" then you need to get the language adjusted before signing.

 

[MichaelSullivan]

Sounds like a good series. I'll definitely read it.

Phil - the L.J. Smith example always made me wonder exactly what was in her contract. She must have had a copyright assignment in there at some point, it seems, but from what I've read the contract was with the book packager, not HarperCollins. I'm not sure if that is accurate or not, it seems like a strange party to assign copyright to. Still, a cautionary tale - always read a contract carefully, and if you don't understand something find someone who does.

As far as I know there was nothing like that in the contract - it did say it was a "work for hire" and she later said she didn't know what that meant when she signed.

 

[Steerpike]

Thanks, Michael.

I remember reading at the time that the author state it was work for hire. The interesting thing (and something which trips up the hiring party a lot on the other end of things) is that there are only two ways to get a work made for hire:

1) An employee produces something within the scope of the employment (and it isn't enough to just say the person is an employee; the court will look at a bunch of factors, including but not limited to tax status, to see if a person really is an employee); or

2) If a person is not an employee, then you have to have a written agreement stating something is a work for hire AND it has to fall into one of nine categories of work.

If it doesn't meet one of the above, it's not a work made for hire even if the contract says it is. A novel isn't generally going to fall into one of the categories.

In this case, she didn't fight it, so I always wondered whether there was something else in the contract, or whether they just told her "we own this because the contract says work for hire" and she didn't look into it further, or whether it is something else entirely.

In any event, I suppose I'm getting off topic. I like the advice, above - don't sign unless you know exactly what you are signing, and interpret clauses in the way least beneficial to you when you're trying to assess them.

 

[MichaelSullivan]

2) If a person is not an employee, then you have to have a written agreement stating something is a work for hire AND it has to fall into one of nine categories of work.

If it doesn't meet one of the above, it's not a work made for hire even if the contract says it is. A novel isn't generally going to fall into one of the categories.

In this case, she didn't fight it, so I always wondered whether there was something else in the contract, or whether they just told her "we own this because the contract says work for hire" and she didn't look into it further, or whether it is something else entirely.

I'm not a contract lawyer but I know there are contracts that are for novels and are work-for-hire. Basically every media tie in book (Star Wars, Star Trek, Halo, on and on, are all work-for-hire ... and if they were't "legal" this wouldn't be so standard in the writing industry. So I'm not sure WHAT they have to say to be kosher but the re is no question in my mind that you can be a novelist and be bound in a work-for-hire contract.

 

[Steerpike]

I don't know. I suspect that in the case of non-employees, those contracts have explicit transfers of copyright in them. It is common for a contract to call something a work for hire when it isn't. In the U.S., works made for hire are defined specifically by the copyright act as follows:

A “work made for hire” is—

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Even if a contract calls something a work for hire, it isn't unless it meets the statutory definition, above. Novels don't easily fall into any of those categories, and the categories themselves are further defined under the Copyright Act.

For example, "A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole."

"[A] “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities."

"A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works."

It's an important issue to be aware of if you're the one paying for a work, because you can call it "work made for hire" all you want in the written agreement, but if it doesn't meet the statute above, it is not a work made for hire. That means that you need to make sure you have an explicit copyright assignment in the contract itself if you want to ensure ownership of the copyright in the work you are paying for.

Often what these contracts will say is that it is a work made for hire, but then will also have language that says "but if it is not a work made for hire, you agree to assign the copyright." That way, even if it is not a work made for hire you can point to the language that says it is to try to make the author go away if there is a dispute, and if the author decides to challenge it you have additional language about the explicit assignment.


EDIT: I have contact with a guy who writes for one of the companies that publishes well-known tie-in novels. I suspect he won't send me a copy of the contract though (also, he's an employee so in his case it's easily a work for hire, but maybe they use the same agreement for everyone).

Also, I could have saved myself some typing - there is a blog topic on this from some law professors at Columbia Law School - http://www.keepyourcopyrights.org/copyright/rights/work-for-hire

In any event, I've actually had cases where the content buyer thinks it has a work made for hire and it does not. It can be a tricky area and it pays to be careful (on either side of the issue).

 

[Nihal]

I've came across a similar situation where a company tries to twist some definitions. I am an illustrator who rarely do collabs with other artists. Professionally, I've never done such thing.

Still, there was this company which presented a contract where all the illustrations I was commissioned to create were considered "collective work". Not that I've seen any of them grabbing a wacom and helping me to complete an illustration. Their argument was that sometimes they opined on the work, requesting some changes. It was clear they weren't willing to use my work under a licensing regime, only wanting to hold the copyright during an unlimited amount of time.

How I reacted? I signed it. Hah. I was beginning my career, they only presented the contract like... 6 months after I was already working with them and I by this time I knew nothing worthy of fighting for would come from this project, I wasn't planning to linger around for much long, for the pay wasn't spectacular either. I don't think they got even a beta of the game out. I'm not proud of my actions anyway.

If I would do this nowadays? No. Now I can afford ditching works coming from unethical companies.