Contracts 101: Copyright

November 22nd, 2006

Long time ago I started to talk about contracts and what they mean. I figure it’s time I took up the gauntlet (as opposed to the gantlet) again. Last time it was Grant of Rights; the next paragraph in my contract covers Copyright.

The copyright in the Work will belong to the author. The Publisher is hereby authorized to register the copyright in the United States copyright in the name of the Author. The Publisher agrees the imprint the copyright notice authorized by the United States copyright laws in each copy of the Work distributed by the Publisher. The Author agrees with respect to any rights reserved to the Author hereunder to take all steps necessary to protect the copyright in the Work.

At the end of the graph my Lovely Agent (hereafter LA) has inserted an important sentence: “The publisher will require all sublicensees to imprint the copyright notice.” Why is that important? While you (technically) own copyright from the moment you write something, your hold on the copyright depends, to a certain extent, on vigorous defense thereof (which is why there’s that sentence about the Author agreeing “to take all steps necessary to protect the copyright in the work”). So if you and the Publisher make a deluxe subrights sale to AudioBooks Am Us, the publisher is required to make AudioBooks Am Us include the copyright notice (and make them include it correctly–no slugging in someone else’s name instead of yours).

In the days when I worked at Tor, I was the person responsible for filing the TX forms (the forms registering copyright in a text). My understanding of the law is that you do own copyright from the moment you’ve written your Work–but filing the form cements your copyright in the finished work as it appears.

To return to that vigorous defense business: this is where things like fan fiction can cause trouble for a copyright holder. If Mona Ffysh-Ripple, author of Love’s Avocado Dip, sues Deirdre Deebleknight for infringement of copyright, and Deirdre can prove that there are dozens, maybe hundreds of fan fic stories on the internet using her characters, plot and situations, Deirdre can argue that Mona has failed to “vigorously defend” copyright in her work, leaving the door open for her to borrow stuff too. This is a vexed subject: a lot of publishers/production companies know that there’s a marketing benefit to having people so immersed in your world that they want to continue that experience; still, you don’t want to lose copyright and its economic benefits.

And really, that’s what it comes down to: yes, copyright protects you from somone who might steal your work and say it is hers. But in the final analysis it’s copyright that protects your right to make money from your work (and the publisher’s right to make money from your work, and you’d better believe they care about that–publishers have mortgages and food bills too).

7 Responses to “Contracts 101: Copyright”

  1. […] 9 – Contracts 101: Copyright Madeleine Roberts discusses copyright as pertaining to author contracts at DeepGenre. (tags: books publishing licences rights copyright legal contract authors writing) […]

  2. Kathrynon 23 Nov 2006 at 1:01 pm

    That is really interesting, thank you! I’ve never seen it written out so clearly.

    I;ve probably got this all wrong, or from a web myth to amke people feel better about doing it, but I did think that there was a defense for fan fic that has no commercial gain. This is in the strickest sense, I don’t think the web company can even make money for advertising on a page which utilises copyrighted work. Although this might be over-ruled by something like no ‘publication/reproduction of any part (including characters)…’ so display on a website of any sort would be out, but possibly not mailing lists? Otherwise would your vigorous up holding have to extend to someone verbally day-dreaming ‘what ifs’ for your characters and worlds?

    Meh, it is a long time since I dabbled in fan ficery any way, it isn’t nearly as satisfying as reading the next installment of a series or working on your own stuff. I can’t really understand anyone wanting to make money from someone else’s work.

  3. Madeleine Robinson 23 Nov 2006 at 2:59 pm

    I think that many publishers/corporations feel that fan fic isn’t a problem because of the profit thing (and because it often perpetuates a brand that might otherwise diminish with time). However, my understanding is that there is some danger for the artist/publisher that a failure to discourage fan fiction and other use of copyrighted material might be construed by a court as failure to “defend” the copyright. It’s a vexed subject precisely because no one knows exactly where the line will turn out to be.

    I’ve really enjoyed some pastiches and fiction (I’m a huge fan of Laurie King’s Holmes-Russell books, for example). But I haven’t yet felt the impulse to write fic. Maybe someday…

  4. Joeri Samsonon 23 Nov 2006 at 11:36 pm

    You can’t lose copyright by not defending it. You can lose a trademark by not defending it though.
    10 Big Myths about copyright explained 5th myth.

  5. Madeleine Robinson 25 Nov 2006 at 1:08 pm

    You’re right. Legally the fan fiction battles are really about trademarked characters like Harry Potter or Superman.

    The problem, of course, is that in practice no one entirely believes that. If you get into a copyright battle, unless you’re really Simon Pure, a publisher might cut you loose if they feel you haven’t defended your work and they might have to. That fear–on both sides of the publisher/author line–is what gives rise to sentences llke the one above which requires me to defend my copyright until death…

  6. Kathrynon 27 Nov 2006 at 6:03 am

    I guess the problem, from what I read on that first site, is that it has never been resolved in court and no publisher wants to be the first in that postion. As you say that turns on the author and what is specifically required in the contract. How they expect you to root out fanfic I don’t know, there are so many private groups online it would be impossible.

    In reality does it mean that you have to vocally object to the use of your work in that way?

  7. Madeleine Robinson 27 Nov 2006 at 12:09 pm

    In practice (and unlike trademark) I don’t think anyone expects you to root out fanfic…unless it’s being offered for sale and someone is making money off of your characters (which is why the Conan Doyle estate is still trying to rootle out Holmes pastiches, despite the fact that most of the canon is out of copyright). Some years ago, when I was working at Tor, one of our authors had to explain (in person and later via lawyers) that it wasn’t being mean and unfair to demand that a fanfic chapbook that was being sold to her fans be taken off the market. The authors were making money using her intellectual property, and when it was explained to them that what they were doing was legally wrong, they went public, trying to persuade the author’s other fans that Big Rich Writer didn’t understand that they were doing this for loooooove, and was a meanie. Author didn’t back down, but was frustrated and miserable throughout the experience. There was plenty of fanfic out there about her characters, but not only was the chapbook being sold, but they sent her a copy!

    Even if the work isn’t being sold, if someone sends you a copy of a story they’ve written using your characters, particularly if the quality of the story is really bad, you have to deal with the question of whether you really want to countenance stories written badly in your universe. Will anyone confuse a fanfic using your characters and situations with your own golden prose? Probably not. But that’s what a slippery slope is all about. And indeed, there just isn’t enough case law out there to be definitive.

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