Publishing Contract Red Flag: When a Publisher Claims Copyright on Edits

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From Writer Beware:

It’s not all that common, but I do see it from time to time in small press publishing contracts that I review: a publisher explicitly claiming ownership of the editing it provides, or making the claim implicitly by reverting rights only to the original manuscript submitted by the author.

Are there legal grounds for such a claim? One would think that by printing a copyright notice inside a published book, and registering copyright in the author’s name or encouraging the author to do so, publishers are acknowledging that there is not. It’s hard to know, though, because it doesn’t seem to have been tested in the courts. There’s not even much discussion of the issue. Where you do find people talking about it, it’s in the context of editors as independent contractors, such as how authors hiring freelancers should make sure they own the editor’s work product, or how freelance editors might use a claim of copyright interest as leverage in payment disputes.

In 2011, Romance Writers of America published a brief legal opinion on its website (still on the website, but unfortunately no longer accessible by the public), indicating that the claim would probably not prevail in court. But that’s the only legal discussion I’ve been able to find.

The legal ambiguity of a copyright claim on editing is good reason to treat it as a publishing contract red flag. But that’s not all.

It’s not standard industry practice. No reputable publisher that I know of, large or small, deprives the author of the right to re-publish the final edited version of their book, either in its contracts or upon rights reversion. One might argue that in pre-digital days, this wasn’t something publishers needed to consider–books, once reverted, were rarely re-published–whereas these days it’s common for authors to self-publish or otherwise bring their backlists back into circulation. But publishers haven’t been slow to lay claim to the new rights created by the digital revolution. If there were any advantage to preventing writers from re-publishing their fully-edited books, you can bet it would have become common practice. It hasn’t.

Link to the rest at Writer Beware and thanks to The Digital Reader for the tip.

PG says this is a carryover from olden days when publishers felt they could bully authors and authors would have to take it.

PG thinks most judges would look askance at an editor’s claim that he/she owned the copyright to the completed work, especially in a situation in which the author had provided an editor with a complete draft of the book and the editor made editorial corrections and suggestions.

Additionally, if a fee for the editor’s services was negotiated in advance and paid according to the agreement of the parties, PG thinks a broad license to use any part of the editor’s work that was provided per the agreement would be implied by the relationship.

You can also look to the custom of the trade, whether, prior to starting work, anyone had mentioned anything about the editor retaining a copyright interest in and to the work, etc.

Additionally, what, exactly, does the editor’s copyright include? A period that replaces a semi-colon in the original ms. and the capital letter that replaces the lower-case letter in the first word following the period?

If, according to US copyright law, the author owned a copyright to whatever the author sent to the editor, how does the editor overcome an argument that, if the editor’s work is potentially copyrightable, it is a derivative work based on the author’s copyrighted original work. Absent some sort of agreement with the author, how does the editor gain an ownership interest in a derivative work?

Here’s what part of what the US Copyright Office says about derivative works in its Circular 14:

A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.

To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and add new original copyrightable authorship to that work. The derivative work right is often referred to as the adaptation right.

. . . .

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work. The owner of a copyright is generally the author or someone who has obtained the exclusive rights from the author. In any case where a copyrighted work is used without the permission of the copyright owner, copyright protection will not extend to any part of the work in which such material has been used unlawfully. The unauthorized adaption of a work may constitute copyright infringement.

So, when did the author grant the editor permission to use the author’s copyrighted work to create a derivative work? If the editor used the author’s work without the author’s permission, none of the editor’s work is entitled to copyright protection.

9 thoughts on “Publishing Contract Red Flag: When a Publisher Claims Copyright on Edits”

  1. The Author’s Revised Edition is often published when an author who wasn’t pleased with the revisions required by the publisher gets rights reverted.

    But this is also a strong reason for rigorous self-editing – it may ultimately save a lot of grief.

    Another slippery slope.

  2. Granting publishers a partial copyright on a work was part of the EU copyright reform proposal of 2016, described as a “neighboring right”:

    “Thomas Höppner, professor of business and IP law at Technical University Wildau, Germany, and partner with law firm Hausfeld LLP Berlin. He argued that extending neighbouring rights to publishers by equating them with phonogram producers would be justified given that press publications can be easily replicated and distributed whereas the press publishers have put time-consuming investment into the concept realization and the complex publishing process such as the structural editing, copy-editing, design and typesetting.

    The Commission proposal is an appropriate, necessary and proportionate measure to the specific and legitimate pursued purposes, he said. Höppner was a strong supporter of the German initiative of amending the German Copyright Act that came into effect on 1 August 2013 by introducing the press publishers neighbouring right. ”

    This was distinct from the ancilliary right to be established for mandatory licensing for citations and links but both were justified by the need to squeeze money from internet companies. Presumably hoping nobody would notice the damage to authors.

    I haven’t bothered to check if the proposal is still hidden in the mess they’re fighting over.

    The idea has been around for a while and it figured as an argument in both the Random House–Rosetta lawsuit of 2001 in the Hachette–Open Road lawsuit of 2014, though both were eventually settled on other terms.

    It doesn’t sound like it’s been established either way whether traditional publishers have some kind of right over an edited manuscript that wasn’t licensed from the original.

    It is the kind of thing that is more rooted in European moral rights than US copyright or contract law.

    Yet another reason to default to ignoring tradpub.

    • “… justified by the need to squeeze money from internet companies.”

      Which isn’t going to work anywhere like the they expected/hoped it would.

      I can see EU writers all flocking to Amazon as a way to be discovered.

      Like when the qig5 pulled their stunts – the party they did the least harm to seemed to be Amazon – funny that.

    • Having worked for a subsidiary of a major European publishing conglomerate many years ago, I’m not surprised by efforts of major publishers to gain more power over authors and just about anyone else.

      I’m not an expert on “neighboring rights” but I think they may provide a basis for an ultimate rights grab by those who did not write/draw/paint/sculpt/photograph/etc. a creative work.

      • That was where the squawking came, because even a fractional ownership would allow the publisher to torpedo a deal, even after their original contract expired.

  3. Not exactly the same, but when one of my books was being reverted the publisher didn’t what me to use any of the edits they’d suggested. I said the edits hadn’t been material, which they hadn’t. The publisher then backed off.

  4. I was around when this happened. Small publishers, particularly epublishers, had such generous contracts that the author could pull the book at any time for any reason. Some jerks would sign the contract, have free professional editing done for their book, then withdraw it so they could submit it to the big publishers. After this, some contracts got tightened up, some required editing payment if the author pulled after this point which caused a sh*t storm from various author groups and ruined some publishers’ reputations, and some used the edited copyright as a boogie man deterrent which really wasn’t legal.

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