A Sketchy Introduction to Copyright and Contracts
Ursula K. Le Guin
Under current U.S. copyright law, you own copyright in your work as soon as you put it down on paper. By writing it, "you create rights to that work that make it entirely and exclusively your own. Those rights are generically known as the copyright, and the mere act of writing your book is sufficient to protect your work from misappropriation." (Richard Curtis, in the SFWA Handbook, 1990) You may put the formal notice: Copyright © 1998 by Mom de Plume on the first or last page of a MS you are submitting to publishers, but it's unnecessary.
After publication, if the publisher has not done so, you should file or register copyright with the Copyright Office in Washington. You can find out how to do so at any library or U.S. Government information office, or on the Web.
When you sell a work to a publisher, you are "conveying" or assigning (i.e. selling or lending) some or all of your copyright in that work to that publisher. The contract is an agreement between author and publisher specifying which rights you are assigning and to whom, for what compensation, for how long, and other qualifications. (Note: Literary contracts are so strange that Contract Law knows almost nothing about them, and there are only a few lawyers in the country who handle them. Film contracts are a lawyers' playground, but an author turns to a lawyer for help with a literary contract only in the direst and most unusual circumstances.)
Most poetry magazines do without a contract. Their letter accepting your poem serves as an agreement. It gives them "First Serial Rights," which means that you cannot give or sell the poem to any other magazine. Your poem is covered by the copyright on the magazine, and copyright on the poem usually reverts to you as soon as the issue comes out. All your editor normally expects is that, if the poem is reprinted in a collection or anthology, they get a credit line in the Acknowledgments for its first appearance in print. Occasionally they ask to keep the rights for a year, or ask for reprint rights in case they do an anthology. Money is usually not involved or is token payment, and agreeement can be reached simply by discussion. If you're unclear about their policy, ask. You always have a right to ask.
Not many magazines publishing fiction make a contract with the author, except some of the high-payers. They simply send an acceptance letter with a check, or the check comes on publication. (Sometimes a rudimentary terms-of-agreement is stamped on the back of the check; in other words, they want to make you sign their agreement by countersigning the check. Don't countersign it. Mark it "For Deposit Only" and deposit it. Ha!)
Magazines seldom negotiate (discuss, change) their contracts. Usually this is OK, because they usually only want limited rights in your story. They should ask for, and get, only "First North American Serial Rights." The word serial here means magazine, periodical, and again the idea is that you cannot sell the story to another magazine. They should get no other rights. You should retain the right to reprint the story in book form (collections, anthologies) forever; to sell it in translation abroad; to get the money for a film option on it; to control media exploitation of it, and so on.
Unfair demands: Some contracts ask you to grant the publisher "Second Serial Rights." This means they control all future reprintings of the work. You could lose a lot by granting them this. If they ask for other specific rights, such as stage, TV, film, electronic, etc., again ask yourself why they should get the future profit from your work. Strike the clause if you can.
Illegitimate demands: If you sell or give "all rights" to a magazine or book publisher, you have given away your copyright forever. The publisher owns the work. It isn't yours. No lawyer can help you. You have placed yourself in the position of a peon, an employee with no rights at all. Out of self-interest and in solidarity with other writers, a freelance writer should not let any publisher take "all rights." If the contract asks for them, refuse If the contract describes your work as a "work for hire," refuse. Negotiate if you can, refuse the contract if they won't, and find a publisher with at least a minimal respect for writers.
When the publisher accepts your book, they send you an unsigned contract for it. Certain clauses, referred to cutely as "boilerplate," are non-negotiable. Others can be changed: you can negotiate, you can ask for changes, you can rewrite clauses which favor the publisher unjustly. You may wish to limit the rights they get; you may wish to improve their arrangements for advance and royalties; you may wish to include guarantees about publication date, payment dates, publicity expenses, and so on.
With a small press all this can often be talked out between author and publisher. With the big companies negotiation will be impersonal, sometimes confrontational, often daunting.
It's not paranoid, but good sense, to assume that a big commercial publisher will grab whatever you let them grab. They'll look after their interests, which (stupidly) they don't see as consistent with your interests, and so you must look after your own. University presses and small publishing houses vary enormously in their professional competence and the greed or generosity they show to their authors. Some are very hard to work with, others offer the satisfaction of real collaboration in settling the terms of the contract and in producing your book.
You should be quite sure of what you're talking about when you ask to negotiate the terms of a contract.
Mark L. Levine's Negotiating a Book Contract (Revised edition, Acorn Alliance, Sept 30, 2005) is a reliable introduction to the complexity of book contracts. In order to read and understand a contract and negotiate it, you probably need help. You do not need a lawyer. What you need is to learn the business end of the writing trade. You will find a great deal of sound education and advice in these matters at the library. Consult with friends and acquaintances who have published professionally the more experienced the better. Best of all, get a professional literary agent. The best time to seek an agent is when you're holding an unsigned book contract in your hand!
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Copyright © 2005 by Ursula K. Le Guin