A Contract Clause to Beware: Claiming Copyright on “Publisher’s Content”

Hi, everyone. My name is Michael Capobianco, and although I’ve been an adjunct member of Writer Beware for some time now, this is my first official blog post.

I’m also the Chair of SFWA’s Contracts Committee, which means I see a lot of bad contracts, both for book-length and short fiction. I’ve gotten used to much of the unfortunate and often contradictory clauses in these contracts, but last week I ran into something that caught my attention: a virtually identical terrible clause in two separate small publishers’ book contracts, a clause that I had never seen before.

Both contracts were for original fiction, but aside from the fact that neither paid an advance, they looked fairly different from one another until they came to this clause. To save you any further suspense, here it is:

The Publisher reserves all copyright, trademark and other intellectual property rights in and to the titles (including series title, if any), logotypes, trademarks, trade dress, formats and other features of the Work as published and promoted by Publisher (collectively, “Publisher’s Marks”), and any and all content that may be added to the Work by Publisher (collectively, “Publisher’s Content”). The Publisher shall have the sole right to develop sequels or prequels, new or additional titles in a series, or related works using any and all such elements, and shall be free to commission or contract with any other person(s) for the preparation of such sequels, series, or related works.

Now, I’m used to encountering incomprehensible wording in bad contracts. It was only when I saw the same clause again in another contract so close together that it seemed like a good idea to issue a warning about it.

My first response with something like this is to try to figure out what the publisher was actually trying to say and if there was any legitimate justification for it. Needless to say, I couldn’t think of any. On the face of it, this seems like an egregious rights grab.

The crux of the matter is a little more complicated, though. Why does the right to “Publisher’s Marks” include an undefined “other features of the Work?” And what exactly does “Publisher’s Content” mean here? It gives the publisher ownership of any and all content “added to the Work by Publisher,” yes, but normally the publisher doesn’t add a lot of original material to a Work, and, even if they do, it doesn’t confer any rights to them, much less the right to hire other writers to develop sequels, etc. from this additional material and “other features of the work.” What are they thinking here? Why in the world would they stick this into an otherwise normal bad contract?

Could they, under this clause, add a paragraph or two in which they create a character and then commission sequels, prequels, and anything else using the character as well as the series title and other features of the work without the original author’s approval? Apparently so.

Is this what the Publisher intended? Who knows, but hopefully not. Notwithstanding the Publisher’s intention, this is what the contract says. And with publishing contracts, that literal wording is the bottom line–not what the publisher may or may not intend (or may or may not claim that it intends).

Victoria mentioned that she, too has seen similar wording in contracts, which suggests that it’s coming from somewhere. My best guess is that it may be originating in work-for-hire contracts where the publisher takes all rights, including copyright.

In any case, if you see this wording in a contract for original work, cross it out and let Writer Beware know.

18 Comments

  1. Maybe I am reading the paragraph incorrectly, but I read 7 things the publisher is claiming. This is based on my grammar knowledge in an academic environment, not a publishing environment.

    We have serial commas that distinguish the items, not parenthetical commas of explanatory information. Parentheses are used for that.

    1 = copyright
    2 = trademark and other … to the next comma
    3 = trademarks
    4 = logotypes
    5 = trade dress
    6 = formats and others … to the next comma
    7 = and any and all … added [work].

    Please correct me where I am wrong.

    Definitely a rights grab. Highly worrisome whichever way that it reads.

  2. Scary!
    This whole scam thing is scary.
    I found out about this blog as they were scamming me. I was lucky to get my money back from the bank. However, they are emailing me to death.
    Asking me did I received a contract, did you see the reviews, we trying to reach you.
    All these different numbers.
    I’m not the best writer, but wow…really!
    This suck.

  3. Would like to suggest a topic for a future post: Say you have a 20-year-old contract with a reasonable reversion clause, but since ebooks weren’t really around then, the word “reprint” in the clause referred to actual printed copies of the book. Fast forward to ten years after publication and you want a reversion, but the publisher insists the ebook counts as a reprint. Fair and reasonable? Honestly, I can see both sides. Just wondering about other perspectives. I argued that the word “print” is right there in “reprint,” so an ebook doesn’t count as a reprint—at least not in my ancient contract. Didn’t get a reversion.

    1. With the caveat that I haven’t seen the language of your reversion clause…Did they issue the ebook _after_ you asked for reversion? If so, I think (and keep in mind I’m not a lawyer) that they might have a case for designating it a “reprint”. If the ebook was published at some point _before_ you asked for reversion, however, that would merely make it another format or edition of the original publication–not a “reprint”. I’m assuming standard language here, which is that if the book is “out of print” you send a reversion request and the publisher has X amount of time to reprint, and if they don’t rights revert to you.

      Email me the reversion clause as well as any other details about your situation, and I’ll try to give you more informed advice.

      This might be of interest: a post about how a publisher tried to weasel out of the language of their reversion clause using a different ploy (and get a payday into the bargain: https://writerbeware.blog/2011/10/18/guest-blog-post-fitzhenry-and-whiteside-writer-beware/

      1. Just now saw this. Thought I’d checked the little box for notifications. If I recall correctly–and it’s been a lot of years–the ebook already existed when I asked for the reversion. We went ’round and ’round on it for years, and honestly, I can see their side of it. I will email the clause to you. Thanks!

  4. This article makes me think that there is much to be said for self publishing with Amazon (or another company) where no monies are paid to the publisher (other than the percentage they take from book sales), and where all copyright remains with the author. Kevin

  5. The truly egregious aspect of this clause is found here:

    “The Publisher shall have the sole right to develop sequels or prequels, new or additional titles in a series, or related works using any and all such elements, and shall be free to commission or contract with any other person(s) for the preparation of such sequels, series, or related works.”

    In short, if your genre book and protagonist take off, you have given away all rights in the property. Worse yet, the publisher can fire you, and hire someone else to write further books in the series you launched.

  6. Hi LitPrime Solutions LLC in Torrence California. This company has been giving me a real headache, They had my audiobook done by a narrator, of which I did not like, it came across completely wrong for the story. I told them that I didn’t aggree with it and wanted it stopped and not to place it for sale on Amazon. They completely ignored me. After a while when they were not getting back to me. I asked them to remove all my books from the sales platforms and cancel all publication with them.
    Even though I had received a royalty schedule of 100 books sold for the first quarter. I have yet to receive a royalty payment.
    I sent them by mail a formal letter of cancellation and by email a signed letter of cancellation, with no reply.
    What do I do? Any suggestions? I live in the UK.

  7. Are we talking about ‘self-publishing’ companies here? The second paragraph of your post mentions ‘small publishers’ but later comments seem to be from authors who are self-published. I’m published with a small ‘traditional’ publisher (and quite happy with them) but a genuine small publisher never asks for payment but pays Royalties and is different from a self-publishing company.

  8. A reporter thought my father who. was in professional sports had some interesting stories. He asked my father if he could tape record him. As far as I know there wasn’t a contract or anything. After 6-8 months he said he had written a draft of the first chapter. They invited him and their neighbors over for dinner to review it but the reporter showed up without the draft. They never saw him again after that dinner. (He told them he had to leave the country as he was marrying a girl from Columbia). My father recently passed away. I would love to hear my fathers voice and his stories. I located the reporter in a city about an hour away but I have not contacted him. Do you know who has the rights to those tapes? If my family writes a book based on our memories of his stories and they turn out to be what this reporter has recorded can we get in trouble if he has the rights to those stories are what he has on tape? Thank you:)

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