Beware of Hidden Dangers in Short-Form Publishing Contracts

Authors have a lot to watch out for when reading a publishing contract, but one of the most common dangers is actually invisible: the protections typically missing from short-form contracts.

Standard publishing contracts run 10-30 pages, in little type, with wording that ranges from “difficult” to “possibly penned in Hieroglyphs.” Most authors don't know how to approach the dense legalese, or find it uncomfortable and intimidating.

By contrast, many authors see a three-page form and think “Hooray! A contract that makes sense!”

Beware: that way be dragons.

Publishing contracts are long because they address a wide range of legal rights and issues. “Copyright” is actually a group of rights, and each of them must be addressed in a proper contract. Failure to deal with issues creates dangerous ambiguities and loopholes, most of which cut in the publisher’s favor in short-form contracts. (This is because the short-form contract deals with rights as a bundle rather than separating them, and often they simply license the entire bundle to the publisher.)

Sometimes, publishers try to claim their short-form contracts offer authors a “better deal” than “traditional, complex forms.”

Again, beware.

These shorter contracts are often missing a number of critical provisions that authors don’t realize they need to include for their own protection. When a problem arises, the author goes to the contract, only to find that the “friendly short form” doesn’t address that issue (or, when it does, the publisher prevails).

Here’s a list of some important provisions many short-form contracts don’t include: 

1.  Proper reservations of subsidiary rights to the author. The shorter the contract, the more likely it is to simply grant the publisher “all rights” in and to the work “in all forms, formats, and territories.” Publishers don’t need “all rights” to a work. Most publishers need print, ebook, and sometimes serial rights. Everything else is open for negotiation. At a minimum, those other rights (often called “subsidiary rights”) should be separately listed and addressed in the contract language. One-size-fits-all rights language is not the best option for the author, and something authors should be watching for with an eagle eye. 

2. Author termination rights. Publishing contracts often last “for the life of copyright,” but that’s actually only the contract term if the contract isn’t breached or terminated earlier. Good contracts give the author several ways to escape if things go badly, including the right to terminate (and revert all rights) if the publisher fails to publish within a stated time, goes out of business, breaches the contract, or fails to sell at least a specified minimum number of royalty-bearing copies in a stated period of time. (Each of these termination rights often appears in a different paragraph--look for all of them in your contract!) Short form contracts generally fall woefully short on author termination rights. 

3. Sales Statements. Each royalty check should be accompanied by a sales statement detailing  relevant information about the number and format of books sold and returned during the sales period, as well as any reserves being held against future returns. Not surprisingly, short-form contracts often skip over sales statements—and unwary authors often forget the importance of receiving this documentation until the first (unexplained) royalty check comes in...or doesn't.

4. Audit rights. The author needs the right to audit the publisher’s books and records relating to the work at least once in every calendar year. Again, this is often missing in short-form deals.

5. “Out of Print” status tied to royalty-bearing sales. Short-form contracts often omit the author’s “out of print” termination rights altogether ("whoops…") or tie “out of print” status to “availability” – which usually keeps the work in print as long as an ebook version is offered anywhere for sale.  

Note: this list is not exhaustive. There are other important provisions which short-form contracts often omit, but this list is enough to demonstrate the dangers of short-form contracts. Sometimes, publishers try to claim these clauses “aren’t needed,” or that authors can trust them to “do the right thing.”

SHENANIGANS.

It’s true that publishers and authors should be able to trust one another. However, it’s also true that good fences make good neighbors, and good contracts make for good partnerships—in publishing, as elsewhere. Contract law says that a promise which isn’t contained in the contract does not exist as part of the deal. (There are exceptions, but you should never rely on exceptions.)

Never, ever sign a publishing contract—especially not a “short-form” deal—without obtaining a professional opinion from an agent or a publishing lawyer, to ensure the contract offers adequate protection for your legal rights.

 

How–and Why–to Write a Business Plan For Your Book

“Do you know how to eat a whale?" the old joke asks.

The answer: "One bite at a time!”

The same advice holds true for writing a business plan for your book.

Many authors don't actually take the time to write a business plan. Either the process seems too boring, too complicated, or "not worth the time." In some cases, writers simply don't think to do it. Whatever the reason, writers who fail to write a business plan for every book they write are missing out on an important tool for writing and publishing success.

Business plans are important whether you self-publish or work with a traditional publishing house, and though it's generally better to write them before you start the novel, it's never too late to write a business plan for your current work-in-progress--even if the book has already released (though if that's the case, you'll probably focus more on the marketing sections and less on the pieces dedicated to how the book gets written).

Today, I thought we'd take a walk through the sections of a book business plan, to take a look at what they contain and offers some #PubLaw pointers on how to write them:

A typical business plan has seven sections, and a book business plan is no exception: 

1.  The Summary comes first (but you can write it last if you prefer, because it basically summarizes the rest of the business plan.)

The business plan summary isn't the same as a summary or synopsis of the book itself (that's Section 2). Instead, this summary contains a one-paragraph synopsis (think "jacket copy") of the novel and a summary of the entire business plan, including the genre, target audience, and other “at-a-glance” relevant facts about the book and the way you plan to sell and market it to the intended readers.

2.  The Book Description contains a synopsis of the book. If you haven’t written your novel yet, it’s OK to create a placeholder – a one-page summary of the story you plan to write. If you write your synopsis (or outline) first, you can add it here before you write the book; if you write it after the manuscript is finished, you can add the completed section to the plan at the appropriate time. 

3. The Marketing Section actually consists of three sub-sections, containing your plans to market the book during its pre-release, release, and post-release phases. The more detailed you can be when planning each section, the better. (And if you have no idea how to do this, I've blogged about it in detail at my own blog, in the #PubLaw category.)

4. A Competitive Analysis follows the marketing section. This part of the business plan requires you to identify where your book will sit in a bookstore (even if you plan for an ebook only release) and to examine similar works in the marketplace, analyzing why readers will (or should) want your book instead of (or in addition to) the other options. This is also where you brainstorm strategies to maximize your advantages and minimize any weaknesses you find.

5.  The Development Timelines Section is designed to keep both you and your work on track during the various phases of writing, producing, and marketing the book. Like the marketing section, this actually consists of three different timelines: one for the writing process, one for the publishing process (regardless of whether you publish traditionally or self-publish, there will be things you do during the publishing process), and one for marketing the work.

6.  In the Operations and Management section, you plan (in detail) who will handle each specific part of the writing, publishing, promotion and sales process. If you publish traditionally, many of the duties will fall to your publisher, whereas if you self-publish, this part of the plan becomes a critical roadmap to the staff and process of bringing your book to market.

7. The Budget finishes up your business plan. As with operations and management, this portion may be simple or complex, depending on the author’s plans and past experience. This is where you plan the budget for everything from production costs (primarily an issue for author-publishers) to marketing and travel expenses associated with the book's release.

In a panic? Don’t be! Business plans take work but they’re not as difficult as they seem. They're also a powerful tool to take control of your book and your writing career.

Have you ever written a business plan for your book? If not, would you consider it in the future? I'd love to hear your thoughts on the business plan!

Debunking Copyright Registration Myths

Authors are often confused about the benefits and timing of copyright registration for creative works. It's a universal issue authors must understand, regardless of the publishing path they choose, so today we're taking a quick and dirty look at some popular myths--and truths--about copyright registration.

Myth #1: You Have to Register Copyright, or You Lose It.

The truth: Registration with the U.S. Copyright Office (or with foreign copyright offices, where appropriate) is not a legal requirement for copyright ownership.

Copyright ownership attaches automatically at the time a qualifying work is created. (For the sake of time and space...short stories, novellas, novels, anthologies and most other published fiction and non-fiction works generally qualify for copyright protection.)

However, copyright registration is required in order to obtain a variety of protections available to copyright holders under U.S. Law. Among them:

  • The right to sue infringers to stop infringement.
  • The right to collect statutory damages (money damages, in amounts set by law) from infringers.
  • The right to recover attorney fees against an infringer in a successful lawsuit.

Myth #2: If You Don't Register Before The Book Is Published, You're Screwed and Cannot Register At All.

(And yes, "screwed" is the technical legal term.)

The Truth: To maximize access to legal rights, an author's copyright should be registered within 90 days of the initial publication date. (Note: publishing the work for free online can constitute "publication" - so consult an attorney before you self-publish or release the work to the public in any form.)

However, authors can register copyright at any time. ANY. TIME. Although some legal rights--for example, the right to recover statutory damages and attorney fees--are lost if the 90-day window passes, other legal rights are available to the copyright holder at any time after registration, no matter when the registration is filed.

In other words: it's never too late to register. It just might cost you some rights if you delay.

Myth #3: Authors Should Register Copyright Before Querying Agents.

The Truth: Not unless the work is already published--and even then, the registration trigger is publication, not queries.

Sometimes authors think they need to register copyright to protect the work from being stolen by unscrupulous agents or publishers. To this, I have two answers:

First: why are you querying unscrupulous agents and publishers?? Do your homework and query only reputable industry professionals.

Second: Although this scenario might have happened to someone, somewhere, registering copyright to avoid an agent stealing your work is about as effective as wearing bulletproof briefs to prevent a random stranger from shooting you in the crotch as they pass by. Again...it might have happened, but if you're hanging out in places where this sort of thing goes on, a re-evaluation of life choices might be in order.

Registering copyright too early can create problems for traditional publishers, most of whom register copyright on the authors behalf. If the work is already registered, the publisher has to complete a different kind of registration, for a 'revised edition' of the work--which creates extra paperwork and headaches all around.

Myth #4: Legitimate Traditional Publishers Always Register Copyright for the Author.

The Truth: Many do, but some don't.

If you publish traditionally, your contract should contain language stating; (a) who is responsible for registering the copyright, and (b) that the publisher will include a copyright notice which satisfies the requirements of U.S. law in all copies of the work published and sold. If the language isn't there...ask for the publisher to insert it. If you don't know what language to ask for...consult a publishing lawyer.

Myth #5: Registering a Copyright is Difficult/Expensive/Requires a Lawyer

The Truth: None of the above.

Most copyrights can be registered online at the U.S. Copyright Office website (www.copyright.gov); in most cases, registration costs less than $50. The copyright office website has a tutorial for copyright registration that can walk authors through the process, step by step, with useful explanations for some of the more confusing terms.

The copyright office's tutorial isn't perfect--there are some areas where I think it could use improvement, and I'm planning a #PubLaw copyright registration booklet (when I get the time to write it...and a unicorn that takes dictation). Even so, it makes what might seem confusing much simpler, so anyone can do it.

So...when SHOULD you register copyright?

If you plan to self-publish, register copyright on your publication day if possible; definitely register within the 90-day window to preserve your rights.

If you publish traditionally, ensure your contract dictates who will handle the registration, and if the task falls to you follow through on publication day or within that first critical 90 days after initial publication.

And there you have it...a whirlwind tour of common copyright registration myths and the truths behind them. We now return you to your regularly scheduled summer fun.

Susan SpannSusan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI (Shinobi Mystery #2), released in 2014, and the third installment, FLASK OF THE DRUNKEN MASTER, just released on July 14. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

Respect for the Law…and Copyright…Starts at Home

By Susan Spann

In the digital age, it's easy to break the law and call it "harmless."

For example:

...Copying a photograph or an inspirational piece of art from someone else's website.

...Re-blogging a blog post without obtaining the author's permission in advance.

...Downloading pirated ebooks, songs, or videos off the Internet, because after all...those people make tons of money and surely my single download doesn't hurt.

I've heard the excuses a thousand times. "[The artist or creator] doesn't need my money." "It's only one download." "I'm crediting the original author--(s)he should be glad that I wanted to share the work!"

Excuses are not justifications, and wrongful taking, copying, or even re-blogging of someone else's work without the legal permission to do so constitutes copyright violation...regardless of your motives.

In simpler words: the fact that you didn't intend any harm doesn't make an illegal choice okay.

Few artists get paid even close to "enough" for the time and effort they spend creating their works. If you're reading this, you're probably a writer (or an artist, or both) and you know the previous sentence is true. More importantly: it's not for the consumer to decide "how much is enough."

Bloggers rarely receive any monetary compensation for the work they do. The benefit they receive consists mostly of website traffic--which might, in time, develop into a platform allowing the blogger to sell a nonfiction book or other creative work. When you re-blog an article (a term that normally refers to cutting and pasting a blog or other content onto your own blog or website, usually--though not always--crediting the original author and often linking to the original source), you're depriving the author of much-needed website traffic. In other words: you're using their content to promote your blog or website instead of the author's own.

If you do this without permission, it's illegal--and it's also morally wrong. If you believe an article or blog entry merits reading, it's better (and legal!) to post a sentence or two on your blog, describing the article, along with a link to the original source. For example:

Read a post about respecting copyrights on the RMFW Blog today. Do you know the difference between legal linking and copyright infringement? Susan Spann explains why, "In the digital age, it's easy to break the law and call it "harmless" -- and why it's really not so harmless after all. Check it out: [Insert Link to the post you're reading...]

See what I did there?

Here are some quick tips for sharing content without violating copyright:

1. It's okay to capture a short "pull quote" or teaser to use along with your link. Just make sure it's short, and a "teaser" rather than the heart of the useful content.

2. Links are legal--and the original blogger or author will appreciate you for doing it! Link to the original source, rather than copying the material over to your own blog or website.

3. If you really want to duplicate the entire article, ask permission. Many times, bloggers or writers will gladly grant permission for you to re-post content (sometimes with a few reasonable restrictions). I often grant permission for re-blogging or re-posting of articles (subject to restrictions like my byline, a link to my website, and no alteration of my original content). However, if the author refuses permission, don't be a jerk. The content does belong to its creator.

Don't be afraid that sending people to someone else's website will cost you traffic. "Aggregators" are blogs or websites known for providing links to useful content elsewhere on the web. People who value your opinions will come to you even if you "only" point them to useful content (as opposed to posting it yourself). Respecting others' copyright reveals a professional attitude, and raises your reputation far higher than taking other people's work without permission--whether or not you attribute the source.

The good that we do in this world comes back to us eventually--so do the right thing, and remember: respect for the law, and copyright, starts at home.

How do you handle sharing valuable content you find on the web? Do you link it on social media, or post a "look at this" on your blog? Have you ever asked an author for permission to re-post? If so, how did it go?

Susan SpannSusan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI (Shinobi Mystery #2), released in 2014, and the third installment, FLASK OF THE DRUNKEN MASTER, will release in July 2015. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

Five Ways to Improve YOUR Conference Experience

Many (if not most) professional authors understand the value of attending writers' conferences. In addition to offering valuable writing tips and marketing classes, conferences provide an unparalleled opportunity to network and connect with other authors and industry professionals.

But are you getting the most from your conference experience?

Here are some tips for turning a fabulous, educational weekend into a practical boost for your writing career:

1. Identify your conference goals and make a "conference plan" before you go. Whether you're attending to improve your writing skills, develop a network of business contacts, find an agent, or simply re-connect with writing friends, you'll achieve the most success if you go in with a plan.

A conference plan doesn't have to be complicated (or even in writing, unless you like making lists). Think through your reasons for attending the conference. Why are you going? What do you hope to achieve? When you leave at the end of the weekend, what will you feel happy about accomplishing (or disappointed not to achieve)? Those are your conference goals.

Try to establish at least three goals for each conference: a personal goal (such as "meet and remember one new person each day"), a professional goal ("learn to pitch my book effectively in a single sentence"), and a "reach goal" - which could be anything from "finding an agent" to "learn how to use Twitter properly for my writing career." The key is making sure you have a range of goals, at least some of which are within your exclusive power to achieve.

2. Get involved! Teach, Volunteer, or Serve on a Conference Committee. It can be difficult to get panels or workshop teaching spots before you achieve publication, but try to find the places where your special skills or experiences can benefit the conference. If teaching isn't your thing, consider volunteering or joining the organizing committee. Making a personal investment in the conference's success can help you have a successful experience too.

3. Identify and attend conferences that focus on your genre. General conferences are great, and definitely worth attending, but many conferences also offer specialized experiences. Bouchercon (the World Mystery Convention), RWA National (for romance writers), and the Historical Novel Society Conference are merely three examples of national-level conferences that promote in specific types of writing. Local and regional conferences also offer topic-specific choices. Some are writers' conferences, while others cater primarily to readers. Find and attend the ones that work best for you.

4. Select a "home conference" to attend every year. It's nice to experience different types and sizes of conference, both to discover your personal preferences and to reach the broadest possible audience. However, it's also important to establish a presence at a conference where people can get to know you well. Having one conference you "always" attend can help develop your personal and professional networks, and offer a "safe harbor" where you always feel welcome and at home.

5. Have fun, and let it show. People are drawn to happy, confident people. Readers like authors whose attitude is friendly, open, and fun. Conferences may seem overwhelming (especially when you go in with a plan and have things you want to achieve) but don't forget--for many of us, a conference represents a chance to meet up with old friends, make new ones, and take a vacation from reality. For three, glorious days, you can be a writer---and only a writer-- around other people who love books and writing as much as you do. Take the time to enjoy it!

15C18 networking

And while you're looking for that conference home, may I recommend our own Colorado Gold? It's happening September 11-13, 2015, at the Denver Westin, and registration opens May 1. It's been my "conference home" since 2010, and I look forward to it all year. I hope to see you there in September!

Susan SpannSusan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI (Shinobi Mystery #2), released in 2014, and the third installment, FLASK OF THE DRUNKEN MASTER, will release in July 2015. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

Don’t “Gag” on your Publishing Contract

Today's guest post relates to a topic I'm seeing more than I'd like to in the publishing lawyer side of my day: contracts containing a "nondisclosure" clause which prohibits the author from discussing the publisher--or the author's relationship with the publisher--in public.

Too many authors sign these contracts without an understanding of industry standards -- or the fact that this kind of nondisclosure clause gives the publisher far more power than it deserves. As a result, I want to shed some light on these clauses, and why they're bad news for the author.

Nondisclosure is not the same as "confidentiality."

Some contracts contain a "confidentiality" clause which states that the parties (if mutual) or one party (negotiate for mutuality whenever possible) cannot disclose the other party's "confidential information" in public without permission from the party which owns the information. This is more common in business and employment contracts, which often involve the disclosure of business methods and proprietary information (like software), than in publishing.

If you work for a company which owns proprietary information or uses trade secrets, you've probably seen this kind of clause before. It appears in employment contracts, contractor agreements, and "nondisclosure agreements" (also known as NDA's).

Confidentiality provisions don't make sense in the publishing context the way they do in business. In publishing, the author's information (the manuscript) is supposed to become public (that's what publishing means, yo) and the publisher generally doesn't share trade secrets or other confidential information with authors. Therefore, there's really no reason for confidentiality provisions.

However, sometimes publishers do include a confidentiality clause in publishing agreements. A "standard" confidentiality clause should always be mutual and should state that neither party to the contract can disclose the other party's legally protectable trade secrets and proprietary information without the permission of the party that owns that information. Although obnoxious, this kind of clause isn't necessarily a deal breaker -- as long as it's not overly broad and relates only to certain kinds of "legally protectable" confidential information.

Even so, I'd suggest you ask the publisher to remove it.

If you see a confidentiality clause in your contract, don't sign without an attorney or an agent reviewing the contract and either negotiating it out or letting you know that the wording and content isn't a trap.

By contrast, "Nondisclosure" provisions are contract clauses which prohibit one or both parties from any public discussion of either: (a) the terms of the contract, or (b) their relationship.

General "nondisclosure" provisions do not belong in a publishing contract.

Good publishers don't want to stifle the author's ability to talk about the publisher or the publishing process. Publishers would prefer that authors spoke about them in a positive way, of course--and authors should behave professionally in public whether or not a contract requires it. However, it's dangerous for the author, and for publishing generally, for publishers to try to stifle the author's freedom of speech.

Publishers can attempt to enforce a general nondisclosure provision in ways which prevent the author from speaking out if the publisher fails to comply with its contractual obligations. Sometimes, these clauses can be invoked to stop the author from mentioning when the publisher behaves inappropriately, or to prohibit authors from warning others away from the publishing house.

Overreaching nondisclosure provisions can be used to prohibit the author from speaking either in public (e.g., on blogs or social media) or in private - meaning that the author is completely barred from discussing the publishing house in any way without the publisher's permission (which publishers like this usually grant only for purposes of advertising the author's book and experience in positive ways).

If you're offered a contract which contains a nondisclosure provision, ask the publisher to remove it. If the publisher refuses, be willing to walk away--or to hire an attorney or agent to negotiate on your behalf.

Don't let yourself get stuck in a situation where you have no power to speak about your experiences. Insist on industry-standard contract terms which don't prohibit you from discussing your publishing experience. If you're not sure what that entails, or how to ensure you've obtained it, don't sign anything without an agent or lawyer reviewing the contract on your behalf.

Finally, remember: HAVING NO DEAL AT ALL IS BETTER THAN HAVING AN UNFAIR DEAL OR A DEAL YOU REGRET. 

This can be difficult to remember in the heat of the moment, or when your dream appears to be on the verge of coming true, but remember: Bad contract language can turn that dream-come-true into a waking nightmare. Keep your business wits about you and insist on a contract that respects your legal rights as well as the publisher's interests.

What do you think about confidentiality in publishing?

Susan SpannSusan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI (Shinobi Mystery #2), released on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

For Your “Consideration” – Royalties in Anthology Contracts

This month's RMFW #PubLaw post continues our ongoing series on writing for anthologies. Specifically, it's time to show me the money - and look at royalties in the anthology world.

IMG_5212

When it Comes to Royalties, Anthologies Vary. Know the Terms Before You Commit.

Some anthologies pay contributing authors a royalty on copies sold. Some anthologies do not. Always ask--and get a clear answer--about the royalty structure before you agree to contribute your work to an anthology. Also, make certain your contract states, with clarity, how sales proceeds will be handled and whether or not you receive a royalty share. If the anthology doesn't pay royalties to authors, the contract should state who receives the money earned on anthology sales.

What Does it Mean if the Contract Says I Receive "Consideration"?

"Consideration" is the legal term for value a person receives in return for entering into a contract. By law, consideration can be money, rights, an exchange of promises, or a unicorn--essentially, any (legally permitted) object or value the person signing the contract agrees to accept. One court famously stated that "even a peppercorn will do" if that's what the signatories to the deal agree on.

In many publishing contracts, the "consideration" is money, but where the author is not receiving royalties on sales of the work, the anthology language may look something like this:

CONSIDERATION, AUTHOR COPIES. Consideration of the Work for possible publication in the Anthology and, if appropriate, inclusion of the Work in the Anthology constitutes the full and complete compensation due to Author by [Publisher], under this Agreement or otherwise. No additional compensation is due Author whether or not [Publisher] ever Publishes, distributes, markets, or sells any copies of the Anthology. If the Work appears in the Anthology, [Publisher] will also provide Author with [some real number of] complimentary copies of the first edition of the Anthology, in printed format, after publication. Author acknowledges that no royalties are due, payable, or owed to Author on sales of the Anthology, regardless of the number of copies of the Anthology produced, printed, and/or sold. All receipts, revenues and profits from the Anthology will belong to [Publisher] exclusively.

Note that the language includes the important elements mentioned above:

1. What the author receives: "inclusion in the Anthology (if appropriate) and author copies." This is the author's consideration.

2. Whether or not the author receives royalties (here, no): "no royalties are due, payable or owed to Author..."

3. Who does receive the money earned on sales of the anthology: "All receipts, revenues and profits...belong to [Publisher] exclusively."

The contract may also allow the author to purchase copies of the anthology at a reduced price, and may specify whether or not the author can re-sell those copies at a profit.

Whether or Not to Participate in Non-Royalty-Bearing Anthologies is a Business Decision for the Author Alone.

If you ask three different people whether or not you should publish your work in a non-royalty bearing anthology, you'll get at least three different answers (more, if one of them is a lawyer).

Sometimes, it makes business sense to participate in a non-royalty bearing anthology.

People do die of "exposure," but for authors seeking a jumpstart publishing credit, anthologies may offer a chance for the kind of exposure that earns revenue by another means. Publication alongside more established authors exposes the newer author to readers who may then purchase the newer author's works as well.

Sometimes, non-royalty bearing anthologies provide a financial benefit to important nonprofit organizations. Contributing to these anthologies helps authors "give back" to groups that provide education and other helpful services to the larger community--and contributing work on a non-royalty bearing basis allows the author to contribute to the nonprofit's activities.

Finally, non-royalty bearing anthologies may offer an author a chance to participate in a project with other like-minded authors in circumstances which were never designed to generate a profit. Some groups publish anthologies at cost, or free of charge, as a service to certain communities or to readers. In this case, the author knows from the start (and the contract should state) that the anthology will be sold "At cost" and that its existence is not intended to generate significant profits. (Note: even here, the contract should state what happens to any profits or proceeds the anthology does generate.)

Some authors never contribute to anything which doesn't pay royalties. Others may choose to publish in non-royalty bearing projects now and then. As long as you know up front what kind of situation you're entering into, the choice is yours--and yours alone--and you should treat it as a business decision, taking all of the relevant facts and circumstances into account.

Has your work been published in an anthology? How do you feel about royalties in anthology situations?

Susan SpannSusan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI (Shinobi Mystery #2), released on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

Protecting Your Copyright in Anthology Contracts

By Susan Spann

Happy Holidays!

Today, we continue our ongoing series on writing for anthologies with a look at copyright clauses in anthology contracts.

IMG_5212

Anthology writing differs from other forms of publication, and though the contracts often look similar, authors need to be aware of the critical differences between anthology contracts and those which govern publication of single-author (or even two-author collaborative) book or novella-length fiction.  

Anthology contracts should contain at least two clear statements of copyright:

1. A declaration that copyright in the author's work remains the sole property of the contributing author; and

2. A declaration that the copyright in the anthology "as a collective work" belongs to the anthology publisher.

Let's look at each one in more detail:

1. The Author's Retention of Copyright.

The anthology contract should contain the following statement (or something substantially similar): "Author is the sole copyright owner of the Work, and retains all rights to the Work except for those expressly granted to [Anthology Publisher] in this Agreement."

This ensures that the author owns the story, even after its publication in the anthology. Elsewhere, the contract should also address any limitations on the author's right to publish the story elsewhere (tune in next month for more details on that issue). However, the contract needs to contain a clear statement of copyright ownership -- which declares that the contributing author remains the sole owner of the copyright in the story.

2. Anthology Copyright in the Publisher.

The anthology contract will probably also contain a statement similar to the following: "To the extent a separate copyright attaches to the Anthology as a collective work, [Anthology Publisher] is the copyright owner of any such copyright on the Anthology as a collective work."

The reason for this second clause is to ensure that no one else can infringe the publisher's copyright by reproducing or publishing "pirated" (i.e., infringing) copies of the anthology without permission. A statement of the publisher's ownership in the collective work gives the publisher the sole right to produce that collective work. The copyright in the work as a collective work is not the same thing as the copyright on the individual stories, however, and you should never give the anthology publisher ownership of your copyright in your work.

To repeat: The publisher doesn't need your copyright to publish your work as part of an anthology or other collective work.

You may ask the publisher to add: "provided that no collective work copyright will limit or prevent Author's rights to exploit, publish, and profit from the Work separately from or in addition to the Anthology except to the limited extent provided in this Agreement." That language isn't absolutely required, but it's something authors might ask for if there's any ambiguity in the contract with regard to copyright. (It's also something to ask for if you don't know the publisher well.) 

A Word About Copyright Registration

Publishers often want to register copyright on an anthology as a collective work. That's OK, as long as the registration is clear that you, the author, own the copyright in your contribution. Make sure the contract is clear about the manner in which copyright may (and may not) be registered, and states that:

(a) The publisher will include an appropriate notice on the verso page (commonly known as the "copyright page") of the anthology, properly identifying the contributors as the owners of the copyrighted material contained in the work; and

(b) If the publisher registers copyright with the U.S. Copyright Office, that registration will cover the collective work only, and will acknowledge the author(s) as the copyright owner(s) of the contributed works. 

A little attention to detail can help protect your copyrights and ensure a more successful anthology experience.

Have you contributed an an anthology? Did you notice the copyright language in the contract?

Susan SpannSusan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI (Shinobi Mystery #2), released on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

Limiting Grants of Rights in Anthology Contracts

By Susan Spann

Last month, my #PubLaw guest post took a look at important legal issues authors face when writing for anthologies. Today, and in the months to come, I'll be taking a closer look at anthology contracts, and at the special issues unique to anthology writing.

Today, we start with a look at the grant of rights in anthology contracts, which differs significantly from the grant of rights in a standard book-length publishing deal.

The following are all normal or standard grants of rights which authors can expect to see in anthology contracts:

1. Grant of "first" print rights (or, sometimes, "non-exclusive print rights") -- and limits those rights to use in the specified anthology only. Many anthologies want "first print rights" to the stories they contain, which means those stories cannot appear elsewhere, in print or electronic formats, before they are published in the  anthology. (Most of the time, publishers of book-length works want first print rights as well.) For this reason, the grant of rights in anthology contracts typically reads: "Author hereby grants first English-language publication rights" or "Author grants first English-language anthology publication rights."

When the work has appeared somewhere else before, the anthology contract may modify this language by removing "first" and inserting "non-exclusive," or "second" or some other appropriate identifying word.

Note: if the work in question has appeared in print or electronic form somewhere else (including publication on a blog) in whole or in significant part, you must let the publisher know before you sign the anthology contract, to be sure the grant of rights is properly phrased (and that the publisher is willing to take previously published work).

Be careful to ensure that the grant of rights enables the publisher to publish the work as part of a specified anthology only. The grant of rights is for anthology publication, not for standalone or other unspecified purposes.

2. Grant of continuing, non-exclusive print or publication rights (as part of the specified anthology only). Authors writing for anthologies should always be careful to ensure that the contract's grant of rights contains the word "non-exclusiveand clearly states that the anthology's publisher has the continuing, non-exclusive right to reproduce the author's work as part of the specified anthology only.

Publishers need "continuing" non-exclusive rights so the work can be included in future editions or subsequent printings of the anthology.

Never surrender your rights to publish the work in other formats, other anthologies, or in other collections. Some anthologies may require the author to wait for a stated period of time before publishing the work elsewhere (6-12 months is reasonable--go longer only if you decide you want to agree to a longer term). That's okay, and reasonable if the time requested isn't too long. However, beware anthologies that bar you from ever publishing or using your work again in other places. That's not reasonable, and not something authors should grant.

Note: NEVER grant or transfer your copyright in your work to an anthology publisher. We'll deal with "anthology copyrights" in next month's post, but for now, remember: an anthology publisher DOES NOT NEED to own the copyright in your story. The author should always retain copyright ownership in his or her work.

3.   Grant of English language rights only (no translation rights). Unless the anthology's publisher regularly translates anthologies into foreign languages (and this is rare), the publisher needs only English language rights to the author's work. Retaining foreign language (and translation) rights enables the author to sell those rights elsewhere, or arrange for foreign-language publication in foreign anthologies, without limitations.

4. No grants of subsidiary rights. Film, TV, apps and gaming, merchandising, and other subsidiary rights don't generally belong in anthology contracts, except to the extent the contract specifies that they belong to the author alone.

5. A statement that the author retains all rights not expressly granted to the publisher in the contract. This is standard language, but should appear in all contracts an author signs, just to ensure all parties are clear that the only rights being granted are those the author states, clearly, that (s)he is licensing to the publisher.

Some of these terms resemble the ones in a book-length publishing contract, but authors need to ensure that anthology contracts contain only the limited grants of rights the publisher needs to publish, print (and reprint) the work as part of the anthology in question. Anything beyond that should remain with the author alone.

Susan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was named a Library Journal Mystery Debut of the Month. The second Shinobi Mystery, BLADE OF THE SAMURAI, released on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

The Legal Side of Anthologies (Part 1)

By Susan Spann

Anthologies offer a great opportunity for authors to publish creative works and find new readers. Some anthologies feature works by authors from a specific group (for example, RMFW's own CROSSING COLFAX, which contains short stories from members of the Rocky Mountain Fiction Writers organization), while others have open submissions on a specified topic, like horror or science fiction. Still others feature a publisher's in-house authors, or a group of authors who come together to write about a topic of mutual interest (such as A DAY OF FIRE, a novel in six parts, about Pompeii and the eruption of Vesuvius).

In short: the options are almost limitless.

Anthologies lend themselves equally well to traditional publication and self-publishing, and can help new or lesser-known authors achieve much broader exposure, due to shared marketing efforts and the ability to "cross pollinate" from other authors' existing readership.

But I'm a lawyer, so you know there must be a fly in this ointment somewhere.

Handled properly, anthologies have many benefits and relatively few drawbacks (aside from those common to publishing as a whole). However, it's important to ensure--before you submit-- that the anthology you're considering provides both you and your work with proper protection and consideration of your legal rights.

In the months to come, we'll break down the legal issues surrounding anthologies here on the RMFW blog. Today, we'll take an overview look at the biggest legal traps and pitfalls present in anthology publication.

1. Contract, Contract, Contract.

Never publish your work in any anthology that doesn't have a professional, written publishing contract. Never. No exceptions. No ifs, ands, or buts. NO.

The contract needs to contain the same type of language, and address the same issues, as any traditional publishing contract (plus some special terms applicable only to anthologies)even in the case of self-published anthologies. Why? Because you're allowing someone else (the anthology publisher) the right to publish your work. The terms upon which that publication happens must be spelled out clearly in a written contract, so both you and the publisher (whoever that is!) have a written reference and foundation for publication.

2. Don't Sign Away Your Copyright.

Anthology publishers need only a limited license to publish the work as part of the anthology. Anthology publishers do NOT need copyright ownership of the individual works. While authors have the right to transfer copyright to the anthology publisher, that eliminates the author's right to use and publish the work in other contexts later on. My law school contracts professor taught us that "you can make as good a deal...or as bad a deal...as you are able," but why make a bad deal about your writing?

Anthologies are plentiful, and most of them do not take the author's copyright. The decision is yours to make, but I strongly recommend you refuse to submit to any anthology that tries to take the copyright in your work.

Note: the anthology contract probably will contain language stating that the publisher owns the copyright on the anthology as a collective work. This is different from owning the copyright on your story. Copyright on the collective work means the right to publish the anthology itself, as a collection consisting of all of the stories within it -- and that copyright exists to ensure that no one else can copy and sell the anthology as a whole without permission. If you can't tell what your contract says in this regard, be sure to get an opinion from an experienced copyright attorney before you sign.

3. Show Me the Money (and Where it's Going).

Sometimes the participating authors get a share of royalties on anthology sales. Other times the proceeds go to the organization sponsoring the publication, to charity, or to someone else entirely. Make sure you know, and evaluate, where the money is going before you agree to participate.

4. Consider the Source.

All publications are not created equal. Some anthologies carry more cachet (and sell more copies) than others. Evaluate the publisher, group affiliations, and other aspects of the anthology before you submit, and  publish only with groups that you want your name affiliated with.

5. Stand and Deliver - on Time.

Anthologies have deadlines, like any other publication. Don't submit your story late, or unfinished, or in non-publishable condition ... and if you do, prepare to accept the consequences.

6. Ask About Purchase and Marketing Requirements.

Some anthologies require participating authors to purchase a specified number of copies of the finished work and/or to participate in specific marketing efforts. (Note: no matter what the requirements are, be prepared to help market the anthology when it releases. It's rude to expect someone else to do all the work.) Know what your obligations are beforehand, so you don't have rude surprises down the line. 

In the months to come, my #PubLaw posts here at the RMFW blog will look in-depth at these and other anthology-related issues, including those sneaky contract provisions specific to anthologies. Have questions I haven't answered? Feel free to ask in the comments, and I'll work them into future posts!  

Susan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was named a Library Journal Mystery Debut of the Month. The second Shinobi Mystery, BLADE OF THE SAMURAI, released on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann).