No Room for Negotiation: The Rigid Realm of Publishing
Attorneys have been known to write more than the occasional appellate brief. Many are accomplished authors with several fiction books to their name—John Grisham, Scott Turow, and Meg Gardiner, to name a few. Other attorneys have devoted their careers to writing legal treatises—Hiroshi Motomura, Stephen Yale-Loehr, and myriad others. Some even have their names as part of the book’s brand, for example, Kurzban’s Immigration Law Sourcebook (Ira Kurzban) and Gibber on Estate Administration (Allan Gibber).
These authors published their work through traditional means—i.e., a contractual agreement between the author and a medium– to large-scale publishing house that takes ownership of the work in exchange for remuneration.
A new author can certainly benefit from signing with a well-known publishing house. However, traditional publishing contracts can be restrictive, offering little to no room for negotiation and demands for broad ownership rights that last for an eternity.
Although not all publishing contracts are the same, they share many similarities. For any author who is about to enter into a long-term relationship with a publisher, it pays to understand the rights involved.
Anatomy of a Publishing Contract
A publishing contract is divided into several sections that cover the rights and responsibilities of the parties as they pertain to preparation of the work, delivery, acceptance, indemnities and warranties, royalties, disputes, applicable state law, delivery of notices, and, above all, grant of rights. The grant of rights is probably the most important aspect of the agreement.
In a publishing contract, “grant of rights” refers to copyright ownership. Copyright exists first with the author. It protects an original work as soon as it takes a tangible form, in this case, when the author either writes or types the manuscript. The author does not need to do anything to receive this level of protection, also known as common-law copyright.
Full Grant of Rights
Some publishing contracts require the author to grant only a license to the publisher to reproduce and distribute the author’s work. However, it is typical to find language that requires the author to assign his or her rights in the work to the publisher, and it might read like this:
The Author hereby fully grants, transfers, and assigns exclusively and irrevocably to the Publisher all rights in the Work, including copyright and the right to secure and renew copyright in its own name, and use the Work in all media now known or later developed.
This full grant of rights allows the publisher to control the use of and access to the work for the life of the author plus 70 years. Relinquishing “all rights in the Work” normally is in exchange for a royalty. Royalties are a percentage based on gross or net revenue received from the sale of the work, commonly 10 to 15 percent.
Scope of Rights
Reproduction rights include the right to make hard copy prints of the work; burn the work to CDs and/or DVDs; record an audio version of the work; develop an app based on the work, convert the work to an electronic format, such as ePub and/or .mobi (or Kindle); convert the work to HTML; translate the work to other languages; and adapt the work for a screenplay or film, among other things.
Distribution rights include, but are not limited to, the right to sell and distribute the work to the public; rent or loan print and/or electronic copies of the work to entities and individuals; publicly display copies of the work in the form of print, audio, or public performance; deliver in whole or in part the work to the public in digital or print using various forms of communication.
Other Related Provisions
A clause indemnifying the publisher against any claims arising from the work is nonnegotiable. This clause reads similar to the following:
Author further warrants and represents that the Work infringes no copyright, trademark, or other intellectual property interest of another person or entity; that it violates no property or personal rights … including the right to privacy; and that it contains no matter that is scandalous, obscene, defamatory, or libelous … .
If the author’s work includes the work of others (e.g., illustrations or photos), the author is responsible for acquiring written permission and providing it to the publisher for the record. The publisher will then include attribution within the work as set forth in the written permission.
Before signing, an author must be prepared to honor the terms of the contract for a lengthy period of time. Although some rights under the contract can be negotiated, oftentimes, the author has no choice but to agree to the overarching language.