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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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