On the QT | The Official Newsletter of GWA June - July 2017 | Page 8

G WA M E M B E R B E N E F I T S
B Y J O H N W. H A Z A R D, J R .
Publishing Contracts: Issues
and Guidance – PART 1
The adage that a con-
tract is not relevant
until it is breached
is only partly true. In
my experience, the
writers who, by way of
their contracts, know
exactly what they
are to write and how
they are to be paid
are confident in both
their economic status and writing results. A
well-drafted, written contract is the foundation
for authorial success.
Although an article of this kind cannot
touch on every conceivable contract issue, I
will discuss the important parts of publishing
contracts, including recurring issues that writ-
ers (particularly first-time authors) encounter
in such agreements—those for which GWA
members most often request my legal advice.
As always, I am happy to help any GWA mem-
ber with publishing and copyright matters.
Certain writers, typically those who are
freelancers or independent contractors, some-
times work for a publisher, such as a news-
paper, without ever entering into a contract
except one that is verbal and informal (see
question 2, below). Although such arrange-
ments can work, a written contract is always
a good idea, if for no other reason than the
security it provides in the knowledge that the
definite obligations of both parties have been
set down in writing.
These are the most import que stions to ask
when entering into a contract:
1. Does the contract state exactly what is
supposed to happen in terms of what is to
be written and what will be published?
In other words, is the project that the
author is to accomplish adequately stated
and described? Although this seems like a
simple concept, it is one I often find missing
in publishing contracts, particularly those of
smaller publishers. A contract should state that
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it is an agreement for the creation of a 50,000-
word book on daffodils or a weekly column on
gardening topics, such as soil maintenance.
The description of a work in a contract is the
beginning of clarity for both the publisher and
writer.
2. Who will own the copyright to the
published work?
If the contract is one for a book, it will likely
give the publisher an “exclusive license” to
publish the book. In practical terms, the exclu-
sive license language is almost the same as an
outright transfer of copyright from the author
to the publisher—but not quite. The exclusive
license means that only the publisher, and no
one else, will be able to publish, distribute and
create new editions of, and otherwise exercise
dominion and control over, the book. This kind
of license usually lasts for the entire term of
copyright, i.e., a very long time–your lifetime
plus 70 years.
Sometimes instead of a license provision,
the contract will contain an outright transfer
of the copyright to the publisher. This means
that the author gives up any semblance of
ownership. As a result, the publisher owns
everything and is not bound by the strictures
that a license might impose.
Whichever manner the contract employs
to deal with a work’s copyright, the author
should ask, “Do I want to be able to continue
to use the text, photos or other parts of the
book in my continuing work as an author?” For
example, A writes a book, Successful Peren-
nials, signs a contract with Acme Publishing
pursuant to which the book is published.
Does the contract allow A to use portions of
Successful Perennials in her other subsequent
works? A careful reading of the contract might
or might not reveal the answer.
If it is important for you to be able to
continue to use your writing in other works,
such as speeches, articles, presentations
and seminars, then the contract should be
fashioned to allow for this. A word of warning
here, particularly for book contracts: Not all
publishers will agree to contract language that
allows the author to use the published work in
future endeavors. Newspaper and magazine
publishers seem more willing to allow authors
to use portions (or all) of their works, once the
article or column has been published.
I sometimes receive questions from free-
lance authors who write continuous works for
a newspaper, newsletter, magazine, website,