Getting Published – Understanding your Contract
By the act of creating a work in tangible form (this including digital forms), the law says you own the copyright and related proprietary rights. As you consider publishing your work in a scholarly book or journal, you need to understand which rights you are transferring to your publisher and which you are retaining. Be sure to review your publisher's contract thoroughly, and keep a full archive of your work and correspondence. There are often copyright differences between publishing an article and publishing a book:
- When you sign with a publisher or a society to publish your article, the contact most often transfers all rights to the publisher, unless you request otherwise.
- When you sign with a publisher or society to publish your book, there are often varying degrees of what rights you may retain and what rights you may transfer to the publisher.
Author Responsibilities - Read and understand your publisher's contract
As you review the contract, you can be guided by three major questions: 1) What rights are you granting? 2) What rights are you retaining? 3) What are you warranting (claiming to be true)?
- What rights are you granting?
- Right to publish and sell
- Other rights
It is very common in scholarly books, book chapters, and article contracts for copyright to be granted/transferred to the publisher. If your copyright is transferred to your publisher, all is not lost; there are often good reasons to do this. And if you retain copyright, you may or may not be retaining secondary rights that allow you to do anything with it.
Language to look for: "author hereby grants, assigns, and transfers . . . all copyrights and the right to secure copyright in the name of the [author or publisher]."
The right to publish is one of many rights included within copyright. Granting this right gives your publisher clear permission to publish your work, even in cases where copyright is registered in your name. Often, the contract will grant the publisher exclusive rights to publish. Sometimes, this grant is non-exclusive, meaning you are free to grant the same (non-exclusive) publishing rights to other publication venues as well. As a corollary of publishing rights, the contract will often grant the publisher the exclusive right to sell the work. That is, to protect the publisher's investment in the work, the contract may disallow you from engaging others to sell the work, too, unless they have your publisher's permission. For example, it might be a violation for you to sell copies of a PDF through your personal website, or to engage the local copy shop to print the work for sale to your students or family. Permission must be obtained from your publisher, because you have granted them the exclusive right to publish and sell the work.
Language to look for: "the exclusive right to publish, co-publish, or cause others to publish . . . and sell" vs "one-time, non-exclusive right to publish."
The contract may also address other rights, called subsidiary rights. These might include rights to grant permission for others to use the work (as in reprints by other publishers, coursepacks, e-reserve, online "custom publications"), or the right to license translations or derivative works based on the publication. If your work is in a literary or other artistic genre, subsidiary rights might include performance rights, dramatization rights, serial rights, musical adaptations, even theme park rights. With your grant of these rights, your publisher becomes your licensing agent, and they will handle correspondence, billing and collections, and income related to licensing these rights. In another clause, the contract will stipulate how any related income will be divided between you and your publisher.
Language to look for: "the full, sole, and exclusive right to grant, sell or license the following rights."
- Competitive/derivative work
- Institutional Repository
In some contracts-often in contracts on creative work-the author is said to retain copyright. This is achieved by registering copyright in the author's name instead of the publisher's, and it can be arranged by mutual consent in any publication contract. However, it is important not to over-interpret what this retains. Copyright is essentially a cover term for a bundle of specific rights (publishing, licensing, selling, etc.). Without an exclusive transfer of most of those specific rights, the publisher will have little incentive to publish the work. But if those rights are transferred, then registering the copyright in the author's name becomes a mere courtesy, and actually retains little power over the work for the author.
Language to look for: "secure copyright and renewals thereof in the United States . . . in the name of the Author."
Sometimes the contract will retain republication rights for the author. This is often the case, for example, when the work is a short contribution included along with contributions by other authors/creators-an article, a poem, a photo, a chapter in a book. In these cases, you will not need formal permission from your publisher to submit the work for publication elsewhere in the future. With this right often comes the contractual duty to acknowledge your original publisher and copyright date in any republication.
Language to look for: "Author retains the right to republish . . . subject only to" etc.
Normally, a publisher will not agree to publish your work if you intend to release a competitive or derivative piece based on the same research, or an abridgement of the work. This is called "protection of the work," because the second publication may reduce demand for the first. However, occasionally, the contract will also allow this.
Language to look for: "Author retains the right to publish a work of similar character . . . subject only to" etc.
Newer publishing contracts increasingly are written to accommodate the need of academic authors to deposit their work with their local IR. Publishers sometimes see this as a risk to the work, especially where institutions have mutual access agreements with other institutions, or general open access policies. If language allowing this is not included in the contract, it is often possible to get the publisher to insert it or to include an addendum allowing deposit in the IR.
Language to look for: "author retains the right to deposit an electronic copy of the work in her/his institutional repository," etc.
- Libel, unlawful, etc.
Normally, the contract will ask you to warrant that you are the true "sole and original" creator of the work. In case of a future dispute over rights, this shows that your publisher acted in a good-faith belief that you were the author/creator-because you warranted it was so.
Language to look for: "Author warrants that the Work is original with [you] . . . that [you are] the sole and original creator thereof."
This is different from authorship, because sometimes ownership of a work is not held by the person who created it. A common example is a work made for hire, in which the author is only an employee or contractor of the copyright owner. Ownership likewise might have been sold, bequeathed, granted, or otherwise transferred to someone beside the creator-like another publisher. Warranting ownership again indicates to your publisher that they are contracting in good faith.
Language to look for: "that the Author is the sole owner of the rights granted herein"
By warranting that you have the authority and power to make the agreement (to grant the rights you are granting in the contract), you are assuring your publisher that the work is not bound by legal constraints-as it would be if there were a lien on it, or if it were currently the subject of a legal dispute, like an inheritance or divorce.
Language to look for: "that the Author has full power and authority to make this agreement . . . that no right in the work has been sold, mortgaged, or otherwise disposed of; that the work is free from all liens and claims."
Many scholarly and some creative publications include or embed work that was created by someone else (including students). By warranting that you have permission to use the embedded work, you are assuring your publisher that you have cleared permissions with whoever controls the rights to reprint, or that you have not exceeded the bounds of fair use under the Copyright Act. Normally, you will need to provide originals or copies of written permissions during the editorial process.
Language to look for: "that the Work does not infringe any copyright or violate any proprietary rights."
Often, the contract will include your formal warrant that your work contains nothing libelous or unlawful, that it does not infringe any rights belonging to others, and is not an invasion of privacy. Exposure to a libel suit is one of the greater risks in publishing, so, in this clause, your publisher is asking for your formal warrant that what you have presented in the work as fact about other individuals or entities is indeed factual and documentable, and that where you are expressing opinions that might be objectionable, those are clearly represented as opinions.
Language to look for: "does not contain any scandalous or libelous matter, or invade the privacy of any person."
Here you agree to take full legal responsibility for the content of the work. You agree that, should a legal action be filed, you will indemnify your publisher against negative judgments.
Language to look for: "agrees to defend, indemnify, and hold harmless the publisher against all claims, demands, suits, losses, damages, costs, and expenses incurred by reason of" etc.