Yesterday I got a question from a writer who’d been offered a publishing contract by a small publisher, and was concerned because the contract language seemed to indicate that the publisher intended to register copyright in its name, not the writer’s.
I asked the writer to send me the contract, so I could look at the actual wording. Sure enough–a transfer of copyright was demanded. But there was a twist: a rights reversion clause. Once the contract terminated, at the end of a period of years, the copyright and all rights would return to the author.
I don’t know if it’s a growing trend or just coincidence, but I’ve seen a fair number of contracts like this lately–most from small presses, but some from sizeable independent publishers. I’ve touched on the temporary-transfer-of-copyright issue in a previous post about precautions for small press authors, but I think it’s important enough to warrant a more detailed discussion.
Most writers know that unless you’re entering into a work-for-hire agreement, it’s not a good thing to transfer copyright (transferring copyright means that you give ownership of your intellectual property, and all rights thereto, to a third party). But what if the transfer isn’t permanent, but only temporary? If you’re going to get your copyright back someday, is it really so bad to surrender it for the duration of a publishing contract–especially if, as in the case of my questioner, the contract is time-limited?
In a word–yes. The fact that you’ve been promised you’ll get your copyright back eventually doesn’t change the fact that, while the publishing contract is in force, you no longer own it. This means that the new owner can alter, adapt, license, sell, or do anything else it wants with your work without consultation, compensation, or even credit to you. Because you gave up copyright, even if temporarily, you have no grounds to protest, and no recourse if the use the publisher makes of your work is offensive to you or changes the meaning or the quality of the work.
Of course, with many small presses, the above may be moot, since the publisher may not be able actually to do anything with your work beyond simply publishing it (such as selling subsidiary rights). There’s another concern, however, and that’s the fact that small presses–especially if run by people with tiny budgets and limited publishing experience–often have a very brief shelf life, and go out of business within a few years of starting up. When that happens, they may do the right thing, voiding contracts and returning rights. But they may also simply vanish without notice or communication, leaving writers with in-force contracts they have no way to get free of.
If your publisher does that kind of bunk, and you’ve given it ownership of your copyright, you are, to put it mildly, not in a good position. It’s not very likely that another publisher will be willing to take on a book whose rights aren’t free and clear, even if the previous publisher no longer exists. Even self-publishing services require you to warrant that you are the copyright owner.
If this sounds like a hypothetical situation, it’s not. I know of at least two temporary-grant-of-copyright publishers that have gone out of business in the past year. Both, as far as I know, returned copyrights to their authors. Other authors with other publishers–for instance, the writer I mentioned at the start of this post–may not be so lucky.
Beyond all of the above…what advantage does a publisher gain from a temporary copyright transfer? If it intends to eventually relinquish ownership, why not just have an ordinary grant of rights? Assuming that the publisher understands its own contract language (many don’t), perhaps it’s a way for a greedy publisher to make a rights grab more palatable to nervous writers. “Yes, you’re giving us ownership of your copyright,” the publisher can say. “But it’s okay, because in the end we give it back!”
Don’t be fooled. Whether permanent or temporary, a copyright transfer is a copyright transfer, and its presence in a publishing contract should always give writers pause.