Your Contract Has Horns: Grappling with the Law, for Writers

COPYRIGHT CUTS AND CONVERSATIONS (PART 1)

= Where I abandon a manananggal metaphor, because her lower half is so frikkin' useless=

So why exactly did we spend a chapter getting used to thinking of copyright as not just one right, but a shorthand for a whole number of rights? To avoid a situation like this:

Publisher: We want to publish your book!

Author: Hooray!

Publisher: But to do that, we need to be able to reproduce your book, obviously.

Author: Obviously!

Publisher: But since that's part of copyright, and you hold the copyright, we'll need you to transfer copyright over your book to us first, obviously. [Presents contract, which says AUTHOR HEREBY TRANSFERS COPYRIGHT OVER WORK TO PUBLISHER MWAHAHAHAHA.]

Author:  Obviously! [Signs contract, regrets it forever.]

It's important to think about copyright as a bundle of rights because that makes it easier to remember that (a) don't give COPYRIGHT as a whole away if you don't mean to do exactly that; (b) you can license/give only a select portion of rights while retaining all the others.

Deciding on which rights to license (you're giving them the ability to exploit certain rights that you hold) is an important part of any contract negotiations. Be as stingy as you can, within reason. Remember what we said about copyrights being economic rights -- these rights can earn you income, and you shouldn't part with their use unless you're sure you're getting a good deal. Part of what you should look at is whether the publisher is in a position to exploit that right (make money for the both of you) at a scale that you would be unable to do on your own. If they're simply going to throw an unedited copy of your manuscript up on a website, hell, you could do that and keep all proceeds. Not every publisher / partner / roommate is going to be able to make effective use of every right found in the copyright bundle. Why give a book publisher the right to adapt your comic into a film? Why give Esquire Philippines the right to translate your short story into Chinese?

Of course, you're not always going to be in a position to negotiate your contract. Even then, unless you're publishing with the Godfather, you always have the option to refuse. Also, most publishers aren't going to ask for your entire copyright, just certain specific rights. Being aware of the severability (you can cut off pieces without killing it, sort of like a... oh, never mind) of copyright means you have a better understanding of both what rights you're licensing, and what rights you're keeping with you.

Remember: in the default position we mentioned in the last chapter, you, as the creator, have the whole copyright bundle -- anything you don't explicitly license to another via written contract, is deemed to remain with you.

You can slice your copyright bundle any number of ways, but here are a few angles you can use when deciding where to stick in the knife.

Cut by Type of Right

Remember those five general categories we talked about last chapter? The Right to Reproduce, the Right to Transform, the Right to First Distribution, the Right to Rent, and the Right to Show? You can subdivide your copyright along those lines. A publisher wants to publish -- in otherwise, reproduce and distribute -- your book? Then give them the right to reproduce and distribute your work, and keep everything else. The contract may not use those terms exactly (some contracts will just put this under "the right to publish"; some digital publishers with their own storefronts may also ask for the right to "display" -- think of websites as shop windows),  so when in doubt, seek clarification/amendment.

Remember as well that those five categories are general categories, and you can further limit the rights you grant by being more specific. The Right to Transform, in particular, is a whole other bundle of rights -- sometimes called Derivative Work Rights, because it involves the creation of new works based on your original -- that have the potential to be very lucrative. Not every book is going to end up with a film or television deal, of course, but even an audio book deal can be good money, and you don't want to give up that right to a publisher that has no intention of exploring that medium.

And, of course, if ever those film studios ever do come knocking... you want them to do that at your door.

Cut by Language

Translations -- also classified as derivative work -- can also be lucrative for a creator, especially when paired with territorial exclusives (more on that later). If you're published in five different languages, then congratulations -- you've basically been published five times for the same work, with no extra effort on your part. Remember what I said about a good publishing partner being able to exploit your copyright in a way you never could? Translation into a language you're not fluent in is an example of that, since it allows your work to reach a market you'd otherwise never get into.

Of course, a bad translation can also ruin your work. Don't give translation rights unless you're sure your publisher intends to translate -- and make sure your price goes up accordingly. Remember that every right you give up represents a potential revenue stream for the other party, and one that -- unless you're only giving them a non-exclusive right -- you won't be able to use yourself.

Cut by Territory

You can also limit the scope of the rights to particular territories, usually nations or continents. This is something of particular interest to Filipino authors, because there are very few local publishers who publish and distribute outside the Philippines, and in that case, it makes sense to limit publishing rights to the Philippines. Even for large foreign publishers -- only a few truly publish worldwide, so territory limitations should always be considered. Remember what I said about being published multiple times if you're published in multiple languages? The same goes for multiple territories.

Tomorrow -- on World Book and Copyright Day -- we'll talk about cutting by exclusivity, format, and term/contingency. Same Cop Time, Same Copy Channel!