Rights vs. Copyright: Untangling the Confusion

Copyright, literally, is “the right to copy.” It guarantees the authors of creative works–including books,  artworks, films, recordings, and photographs–the exclusive right to allow others to copy and distribute the work, by whatever means and in whatever media currently exist. It also prohibits copying and distributing without the author’s permission, and includes moral rights: the right of attribution (the right to be named as the creator of the work) and the right of integrity (the right to control changes to the work).

In countries that are signatory to the Berne Convention,, the international source for copyright law (including the USA, Canada, the UK, Europe, and  many other countries), you own copyright, automatically, as soon your work is fixed in tangible form–i.e., the minute you write the words. Your ownership extends beyond your death–between 50 and 70 years, depending on which country you’re in.

Contained within copyright is the entire bundle of rights that authors can grant to others or utilize themselves. For book authors, that includes primary rights (the right to publish in print and digital formats) and subsidiary rights (the right to make translations and audio recordings and films, to create serializations or abridgements or derivative works…the list goes on, and continues to expand as technology makes different forms of publication and distribution possible).

When you sign a publishing contract, you are granting the publisher permission to exploit (i.e., to utilize for profit) some or all of your rights, and/or to license those rights to others, in exchange for a share of income. Because you own the copyright, granting rights doesn’t mean you lose or abandon those rights: merely that you authorize someone else to exploit them for a time, either exclusively (the publisher is the only one that can exploit them) or nonexclusively (you can simultaneously grant them to others).

Eventually, once the contract term expires, or the publisher decides the book is no longer profitable, the  publisher will cease publication and terminate its claim on your rights. This is known as rights reversion. Sometimes reversion is automatic (as in a contract that extends for a set period of years). Sometimes you can request reversion after certain conditions have been met (as in a life-of-copyright contract). Once your rights have reverted, you are free to re-sell them or to use them yourself, as you choose.

For many readers of this blog, the above will seem pretty elementary. But confusion about the difference between rights and copyright is common–not just among authors (one especially frequent misplaced fear is that granting rights to a publisher means you lose them forever), but among inexperienced publishers. If I had a dollar for every small press contract I’ve seen that hopelessly conflates rights and copyright (for instance, taking possession of copyright but reserving a variety of subsidiary rights to the author), my husband and I could treat ourselves to a very fancy dinner.

Some suggestions on how to untangle the confusion and protect yourself:

– First and foremost, understand copyright and the rights it gives you.

There’s detailed information on the Copyright page of the Writer Beware website (including a discussion of various copyright myths). Countries’ copyright offices, such as the US Copyright Office, the UK Intellectual Property Office, and the Australian Copyright Council, are also good sources of information.

As always in publishing, the more you know, the more likely it is that you’ll recognize bad contract clauses when you run across them.

– Try to submit only to reputable publishers.

Super-obvious advice, I know. And easier said than done, because what publishers say about themselves can’t always be trusted. But it’s absolutely worth investing the research, and while it’s not a guarantee of a standard, author-friendly contract, it does give you better odds.

See Writer Beware’s Small Presses page for more information and research resources. You can also email me to see if I’ve heard anything.

– Except in specific circumstances, such as doing work-for-hire, don’t give away your copyright, not even temporarily.

Inexperienced publishers sometimes ask for this, believing they need it to properly exploit authors’ rights. They don’t–and if things go wrong, it can work out very badly for you…for  instance, if your publisher goes out of business without bothering to return your copyright.

Something to watch for: contracts that transfer copyright ownership to the publisher, yet require the publisher to acknowledge the author’s ownership by registering copyright and/or printing a copyright notice in the author’s name. This is a major internal contradiction: you and your publisher cannot own copyright at the same time. It’s a major red flag, not just because it potentially poses legal issues, but because it suggests that the publisher doesn’t understand its own contract language–or doesn’t care that it’s contradictory. (For a more detailed discussion of this surprisingly not-uncommon issue, see this post.)

– You don’t need to fear life-of-copyright contracts–as long as there’s solid reversion language.

In a fixed-term contract, you grant rights for a defined period of time–say, three years. Especially for new small presses, which have a high failure rate, a fixed-term contract may be more desirable, since it ensures that the contract will expire eventually, even if the publisher doesn’t bother to return rights before disappearing.

In a life-of-copyright contract, you grant rights for the duration of copyright–currently, in the USA and most of Europe, your lifetime plus 70 years. That’s a daunting amount of time, but the intent isn’t so much to allow the publisher to hang onto your rights until long after you’re dead (how many publishers will actually be around 70+ years from now?), but rather to make it possible for the publisher to keep your book “in print” for as long as it continues to sell.

New authors often find life-of-copyright contracts scary, or have been told that they’re bad. But life-of-copyright is standard for larger publishers, and it’s not unusual in the small press world, either. It shouldn’t be a completely open-ended situation, however. Publishers love to sit on rights for as long as possible, since even low-selling books can be profitable if the publisher’s catalog is big enough–but from an author’s perspective, there’s no benefit to a book remaining “in print” if it’s not selling in decent numbers. At that point, it’s better to be able to revert your rights and do something else with them.

A life-of-copyright grant term, therefore, must be balanced by a termination clause that ties rights reversion to sales numbers or royalty income (see below).

– Speaking of grant terms, make sure there is one.

Whether it’s three years or life-of-copyright, your contract should state the exact period of time for which rights are being granted. You’d be surprised at the number of contracts that lack this important detail.

– Make sure your contract includes clear provisions for rights reversion.

While you want to grant rights to a publisher that will properly exploit them, you also want eventually to be able to regain your rights. There’s no good reason to allow a publisher to sit on your rights if it’s not doing anything to promote your book, especially if sales are low. When and how this happens should be clearly spelled out in your contract.

As noted above, a time-limited contract is one way to ensure reversion–but beware of automatic renewal clauses that make it difficult for you to terminate, or that rely on you remembering to send the publisher notice before the renewal date and thus can easily be forgotten. Beware also of excessive grant terms–ten years or longer. For a smaller publisher, three to seven years, with the possibility of renewal if both parties agree, is probably the most you want to consider.

For life-of-copyright contracts, there should be a termination clause detailing when the work is no longer considered to be “in print”, making it eligible for rights reversion. This should be tied to minimum sales or royalty levels: for example, if there are fewer than 100 sales in the previous 12 months, or less than $50 in royalties due for two consecutive royalty periods.

“In print” should not be keyed to mere availability for sale (look for terms like “available for sale through the normal channels of the book trade” or “on sale in any edition from the publisher”), since that could enable the publisher to keep your book “in print” indefinitely merely by offering a digital edition it does nothing to promote.

There should also be clear direction on the steps you must take to notify the publisher that you’re requesting reversion. Ideally, reversion should be automatic upon request, as long as the sales or royalty benchmarks are met. More often, however, the publisher will have a period of time to respond (if that’s the case, make sure the time period is clearly stated). Try to avoid contracts that allow the publisher to game the termination clause by doing promotion or something else to artificially and temporarily inflate sales, or to rush out a “new edition”.

Never sign a life-of-copyright contract that does not include a precise, actionable termination clause. Yes, they exist; I’ve seen them. (For a much more detailed discussion, see my blog post on the importance of reversion clauses in book contracts.)

Also look for language requiring the publisher to publish within a specific period of time (say, 12-18  months), or else return rights. This will prevent the publisher from sitting on your book without ever publishing it, or from pushing the pub date back indefinitely.

– Last but very definitely not least: never rely on a publisher’s extra-contractual assurances.

A confused or devious publisher may assure you that, even though its contract requires you to give up copyright, “you aren’t really losing your copyright, because we’ll give it back later on.” Or, even though its life-of-copyright contract doesn’t include a reversion clause, “you don’t need to worry, because we never hold on to rights forever.”

Maybe the publisher means it, maybe it doesn’t–but do you really want to risk signing with a publisher whose contract doesn’t match its promises? One principle by which authors should always abide is this: If it’s not in writing, it doesn’t exist. (In fact, many publishing contracts include an Entire Agreement clause, which invalidates any oral or written promises or representations that may have been made to you up until the moment you sign.)

For a more detailed discussion of this very important issue–as well as other ways in which publishers may attempt to bamboozle you, in hopes you will bamboozle yourself–see Evaluating Publishing Contracts: Six Ways You May Be Sabotaging Yourself.