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.