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etc., such as a weekly column, where no written contract exists. In these cases the publisher is usually small and has never asked for a contract because its relationships with the authors are thought of as“ family” ties, where any disputes can be worked out within the friendly clan. In such instances, there is only an informal arrangement established over a number of years under which the author sends the manuscript to the publisher, the work is published and then the author receives a check. In fact, these kinds of relationships can work for long periods and many times only come to an end when the publisher is sold.
A new owner often will look over the legal status of the works being published and will demand that all freelance contributing authors enter into a contract. When this happens, the most typical question I get from authors is,“ Who owns the copyrights to my columns from the last ten years?” The answer: In the case where the authors are truly freelance writers, they alone own the copyrights to the past articles, not the publisher.
The Copyright Act of 1976 is specific about ownership: He who creates, owns. Therefore, if A, a freelance author, has written a monthly column for Gardening Fun Magazine for 10 years and has no contract with the magazine, he may continue to use his columns in any way he sees fit. Once an author creates a copyrightable work, he owns the copyright to it and can only give it up by signing a contract that disposes of the copyright. In the above example, the magazine has no claim on the copyright because there is no written agreement containing provisions for copyright ownership.
Note: The above rule does not apply to authors who are employees of the publisher that is publishing their works. An employee who is hired to write columns, articles or Early Registration ends on July 14!
other materials for a publisher does not own the copyright to those works. The publisher owns the copyright through what is known as the“ work for hire” doctrine. Furthermore, most employee / writers do not have written contracts that deal with copyright ownership matters.
3. Payment provisions: Is the contract language involving compensation— advances, royalties and other payments— intelligible? Consider the following paragraph, which contains the only treatment of compensation within a poorly drafted agreement:
Compensation: Author shall be paid a royalty based on sales of the Work, which shall be determined for by publisher no less than four times per year per the schedule distributed by Publisher from time to time, with advances accounted for Worldwide rights. Syndication rights are to be 50 % less returns and costs of promotional copies distributed.
What does this paragraph mean? It is impossible to say, but let us engage in some guesswork. It sounds like the author is to receive a royalty, but since the amount of royalty is not stated, the author will not be able to make even a reasonable estimate of what he is due for the sales of his work.
Let us also guess that there will be an advance paid to the author. But the amount is not stated and neither are the times for payment of the advance given. The worldwide rights and syndication language is hopelessly vague and cannot be deciphered from the incomplete data provided( e. g. 50 % of what?). This sort of paragraph gives credence to the unfortunate aphorism that most publisher generated contracts are inept and often require explanation, revision, addition and, for passages like the above paragraph, total
deletion in order to initiate a fresh start.
It is nonetheless surprising how many authors are willing to enter into poorly drafted contracts, even while suspecting that the payment terms( arguably the most important provision in the agreement, at least from the author’ s perspective) are incapable of any reasonable analysis. In reviewing a publishing agreement, I encourage authors to employ this rule of thumb: If you cannot understand it, demand that it be explained. In my experience, it is also equally surprising how often a publisher’ s representative is at a loss to explain befuddling compensation language.
Many authors ask me,“ What is the‘ standard royalty rate’ for a book?” The answer is that there is no standard rate. Whatever the publisher and the author negotiate is the royalty or compensation that will be paid. A fact of life for beginning authors is that they will be paid less than more experienced authors. This fact is tempered, however, by the reality that the beginning author, who earns only a pittance on his first book, can be well paid in terms of experience and budding reputation, particularly if the work is well received.
To reiterate, clarity is the coin of the realm in regard to author payment. For this reason, do not hesitate to have a third-party— a lawyer or agent— review your contract before you sign it.
John W. Hazard Jr. is a partner with Webster, Chamberlain & Bean LLP in Washington, D. C. His firm is on retainer to aid GWA members with legal issues such as contracts, copyright infringements and other intellectual property matters.
Part 2 in the August-September edition of On the QT explores out-of-print clauses, length of contract, indemnification and dealing with publishers.
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