Laying the Groundwork

Welcome to the first in a new series here at Amazing Stories. The other series include:

Pulling Back the Publishing Veil

Epic Fantasy Analysis by Date

Technically I could make this part of the “Publishing Veil” series but there is so much about contracts that it deserves its own set of posts so they can be logically grouped. In general contracts are going to fall into one of three categories:

Publishing a full-length novel

Selling a short story for an anthology or magazine

Signing an agent

The one I’ll be concentrating on the most is the first as that is the most important one. Each post will be classified either as Novels, Shorts, or Agent.

One last thing to keep in mind with these contract posts. I’m not a lawyer, and don’t even play one on TV. My no means is this meant to be legal advice and of course you should seek true professionals before signing anything, but my hope is to provide you some insights of things so you have a base of knowledge before you go in.

Okay, with that out of the way, let’s get to it.

I’m going to make no assumptions about what you may or may not know about publishing contracts, and while some of this may seem amazingly obvious you may be surprised how many people have gotten themselves into serious trouble because they don’t understand even basic aspects.

Ownership

Whenever you sign a contract you need to be very clear whether you are transferring the ownership of something you create, or just a right to make that creation available to others. In some cases, you may be signing a contract for something that you never owned in the first place. Let’s dig a little deeper.

The moment your novel leaves your head and is made real by transferring to paper or an electronic file, it is copyrighted by you. This is true even if you never register the copyright for it. You own whatever you create unless you transfer that ownership to someone else. When publishing a novel you should NEVER transfer your copyright (ownership) you should simply grant the right to sell your work in a specified format, in a given territory, for a certain amount of time. Protecting your ownership of your work, your world, and your characters should be your paramount concern when signing any contract, so be on the lookout for any language that seems like you may be giving up more than you think.

In the contract there will usually be language that does speak about the copyright, but it is usually with regards to the publisher filing the copyright paperwork on the author’s behalf. Examine this paragraph carefully. You are looking for language such as the ability to “register the copyright” and “in the author’s name.” Beware any language appointing the publisher as your Attorney or granting them rights to act on your behalf unless it is very narrowly defined.

Pay particular attention to words or phrases you may not understand, for instance, work for hire (sometimes abbreviated as WFH). If you are signing a work for hire contract then you can forget what I said earlier about the copyright being yours as soon as it leaves your head and takes form. This is because you have agreed to become an employee of the organization you signed with and everything you create (with regard to the project in question) is owned by them not you.

Not too long ago there was a huge outcry by L.J. Smith (and her fans) when she was fired from her own series, The Vampire Diaries. When she discovered that someone else was going to be brought in to write the next book in the series that she created she was shocked. It wasn’t until she tried to do something to stop it that she finally understood what “work for hire” meant. Though many blamed Harper Collins, they were completely within their rights. It was their property to do with as they will. The real problem in this was L.J. not knowing what she was getting into in the first place.

In the case of Vampire Diaries this was a series where she was the creator, but most of the times when work for hire comes up it is in regards to franchise titles such as Star Wars, Star Trek, or some writing books with some other media tie-in. These books are always done in a work for hire arrangement and usually has additional restrictions for what you can and cannot do, so be aware of that before entering into the contract.

But, work for hire is not the only way to lose control of your intellectual property. You must pay attention to any clauses that mentions derivatives of your work. For instance, in 2011 Macmillan changed their boilerplate and in it was a new clause 6. b. that granted the publisher the right to the copyright of any derivative work created by the publisher. Can you say WTF? Any knowledgeable agent would have that clause stricken but what if the publisher pushes back? Well at a minimum you have to de-fang such a clause. For instance if you make it so the author must approve any derivative work produced then you can block them by simply not approving anything they create.

Seeing a separate clause about derivatives is easy to catch, but you should be looking for that term or “other versions” throughout the contract. For instance let’s look at a common Paragraph 1. Grant of Rights:

1. Grant of Rights. The Author grants to the Publisher the exclusive rights during the full term of this Agreement: (a) to publish and sell the Work, under its own name and under other imprints and trade names, in all languages throughout the world; (b) to make and sell, and authorize others to make and sell, all translations, abridgements, excerpts, other editions, and other versions and derivatives of the Work, whether in print, electronic, digital, audio, video, or any other form or format now known or hereafter discovered or created;

This is a terrible paragraph one and is filled with “rights grabbing” (which we will talk bout in a future post but note the underlined phrase. Right there you are turning over the right (theoretically) for the publisher to create something “based” on your work and giving them the exclusive right to sell it. I would never sign a contract that had such language in it, and you shouldn’t either.

In the next post of this series we will talk a little more about defining the rights you are transferring. In general, you want to keep as many rights as possible, and the publisher is going to try to grab as many as possible. Considering the publisher creates the contract, can you make any predictions on whose side is best represented?