PROTECTING YOUR COPYRIGHT (Part 2 of 2)
Last time, I painted a doom-and-gloom picture of copyrights from a publishing contract standpoint. This time, I’ll continue on a brighter note.
First, let’s examine how traditional publishing differs from self-publishing when it comes to copyrights. To refresh your memory, I’ve copied below the sample traditional-publisher contract clause from last time:
“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…”
The important word here is “exclusive.” You gave that publisher the sole right to your copyrights. When you publish through someone like Amazon, the terms of the agreement specify “non-exclusive” rights. I’ve copied the relevant passage from the current online Amazon terms and conditions (as of the date of this blog post) for Kindle Direct Publishing. I’ve emphasized the keyword. These terms are subject to change, so read the latest ones carefully before you agree.
Grant of Rights. You grant to each Amazon party, throughout the term of this Agreement, a nonexclusive, irrevocable, right and license to distribute Digital Books, directly and through third-party distributors, in all digital formats by all digital distribution means available.
“Nonexclusive” means that you’ve given this party permission to copy and distribute your work, but you can still copy and distribute it yourself and give others permission to do so.
Assignment versus license
The other key in the Amazon terms and conditions is “license” as opposed to “assignment.”
ASSIGNMENT means you give another party some or all of your copyright rights, and you no longer control your copyright, not until it reverts back to you. The other party can use the assigned rights however they choose.
LICENSE means you retain ownership of your copyright and you’re giving another party permission to use some or all of your copyright rights.
A rough analogy is like the difference between renting out your house versus selling it. When you rent it out, you still own and control it; when you sell it, you lose control unless you later buy it back. Where a house sale and a copyright assignment differ is that with copyright it’s still in your name—you just don’t have any control over the rights. Once you sell your house, it’s no longer in your name.
One other thing to pay attention to in a contract is to note exactly what rights you’re assigning. With a copyright, you have many rights that go with it including, print, electronic, audio, film, and derivative rights.
The contract may ask for ALL rights or just some of them. You never want to give up any rights that a publisher won’t or can’t use. If the publisher is only going to do e-books, you shouldn’t give up the print, audio, film, or any other rights.
My first publishing contract grabbed ALL rights, but as I said, I was lucky enough to get all rights back at no cost. My second contract, with a different publisher, took only print, e-book, and audiobook rights, and only for a period of five years.
Now, here’s the semi-good news. All is not lost if you signed one of those “forever” contracts. The framers of the 1976 copyright law provided an out for works published after January 1, 1978.
Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.
The copyright law prevents anyone else from taking permanent control of your copyright, not even if the agreement you signed stated that the assignment of copyright rights was permanent and irrevocable. Here’s are two links about what you need to do.
If you signed away your rights in a grievous contact, your book is out of print, and the publisher won’t return your rights (not cheaply anyway), you can still get your rights back as long as you know the law and don’t do anything stupid like ignore it. And you can be very sure the NO publisher that had you sign the contract in the first place is going to give you a heads-up about exercising this right.
I’ll end with one more word of caution. Take careful note of how “publish” is defined in your contract. While we think “publish” is the same as available for sale, it has happened that some books are published but never distributed—for whatever reason the publisher decides. A book can also be immediately declared out of print before it’s distributed, and if there’s no decent reversion clause based on the “out of print” declaration, you’re screwed. Yes, publishers have done this. The publisher fulfilled the terms of the contract by printing it and making it technically available, but you may have no recourse if nothing in the contract states that people must actually be able to purchase it. No one can buy your books, and you signed away your rights to it for however long.
I hope none of you ever find yourself in this position. This is another reason why you need to protect your copyright in any contract you sign. If you are going to lose control of your copyright to another party, be sure you have an out if things don’t go as you expected.
Finally, do NOT sign away any other rights (film, audiobook, derivative, foreign, etc.) unless or until your publisher proves and guarantees that it’s going to use those rights in a way that brings money to you.