A Publisher's Conversation with Authors: What Does My Contract Mean and Should I Sign It? -- Paragraphs 2-4 (Copyright, Warranty, Permissions)

 

It is Tuesday. Time to tall turkey. Monday's madness is over, and Wednesday will take us over the hump, so Tuesday it is--for some serious discussion with authors. Tuesday talks mean to address authors in waiting and self-published authors who would like to go a more traditional route or who would at least like to take their steps with a publisher by their side.

Today's topic addresses contracts -- what is a good one, what is a bad one, and what do the specialized terms actually mean? I will answer these questions in a series of posts, using, to start, our contracts, and will go through them paragraph by paragraph. Then, I will look at some other publishers' contracts for differing content. Last week we looked at the introductory paragraphs, mostly general information, including who is the author, what is the title, what rights are being offered.

Paragraph 1 states what rights you are offering -- specifically and in detail. The next three sections spell out related understandings (your contract may have a different ordering of paragraphs, but this information must be somewhere or should not sign the contract). These are generally an onus on you, so you need to understand what it is you are guaranteeing or expected to do to cover the publisher (and yourself) legally should authenticity of your book be questioned (or should your book be purloined -- it happens).

Copyright:

• Your book is covered under copyright law from the minute you put pen to paper. Proving it is yours, though, is another matter. Registering the book with the U S Library of Congres copyright office protects it. If you have to go to court, it is best (but not completely required) that you register the book within 90 days of publication. It takes quite some time after registration (the LOC is understaffed), but you will get a certificate of copyright from the LOC.
• If is okay to register your unpublished manuscript, but you will need to register the finished product as well. One copyrights words (not titles, not ideas). If those words change -- and they will differ from a manuscript to a completed book -- then you will need to register the published version as well.
• Generally, you do not need to register any drafts or prepublication versions of your book, but it is definitely a good idea to do so if it will be some time before your book comes out (or the information comes out as part of another book to which you contribute) and you will be sharing the work with others along the way. I once had a rather famous person (in my field) steal the work -- actually, a diagnostic instrument we invented and its explanation -- and published it as his own. He was very blatant about and had apparently gotten away with it before. He was very interested in our work when we presented it at a conference, and then he even gave us a copy of his lauded new book with a note that he regretted that he was not allowed to give us credit because the publisher did not allow it. (Tip-off that he was a con artist: ALL publishers not only allow but require that authors give credit to other authors' work.) We lambasted him, but we went straight to the publisher, providing our certificate of copyright registration of the prepublication manuscript. We did not have to go to court. Certificate in hand, the publisher made the author rewrite the book and give us credit. We also found references to that book online before that could help -- we got every site we found that had referenced the book to take down the reference to it because it contained stolen work.
• Often the publisher will register the book for you. Make sure that if the publisher is doing this (a convenience for you) that it is registering the book for YOU and not for the PUBLISHER. Your contract will specify this. We used to perform this service, but it is now easier for authors to do it, so we have authors register their own. This is becoming more common, and especially so with hybrid publications.
• If you register the book, use the link to the copyright office provided above. Do not pay a service a couple hundred dollars to register your book. There are such services out there, preying on gullible and uninformed authors. The LOC asks a modest fee to cover cost, currently $43. They also want two copies of the book for the record. (Note: these are not books that they will put on the LOC shelf. If the LOC shelves a book, it will come from the publisher.)

Warranty:

• Here you are confirming that the book you are offering is yours and yours alone. If not, but you have rights to the material, that needs to be specified and documented (proved). This means that the work original and not in the public domain. Again, any deviation, if acceptable to the publisher, is documented in this paragraph.
• Generally, the publisher will want you to declare that you have included no copyrighted material from another source, that your work does not infringe on the copyright of another author. That does not mean you cannot cite people. Citing is always possible, but there are legal limits to the amount of citation that you can use without express permission from the author/publisher of that material. This is called "fair use." Sometimes, you can get permission for more copious citations without charge; other times there will be a chtoarge -- and some publishers charge a lot. It depends upon who, what, and how much.
• Most publishers will want you to confirm that you have contained nothing libelous; they do not want to be hit with a libel lawsuit. If they are, chances are they will take YOU to court. Typically, the contract will state this. As a rule of thumb, if someone is mentioned by name in your book (unless it is a public figure and the information is well known and provable), the publisher will ask you to provide written permission from the individual to be included in the book. (In that case, you should show the person what is in the book.) Permission forms are pretty standard, and most publishers can supply you a form that they prefer.
• There is always an indemnification statement. You are asked to indemnify the publisher, i.e. accept accountability yourself, for any libelous or other matter that could wind up in court. Indemnify includes paying any costs (court fees, lawyer fees, judgments, etc.) that a publisher incurs because of the content of your work. 

Permissions:

• Permissions do not refer to individuals mentioned in your book; those are included in the Warranty clause.
• Permissions refer to those who have contributed to your book directly (e.g., illustrators) or indirectly (e.g., long citations). Whether you have paid someone for illustrations, someone provided them for free, or you got them from a stock house like Shutterstock, you will need to provide a signed permission of some sort. (Stock houses usually include a statement when you purchase or download the graphic.)
• Typically, the publisher will provide you with a copy of the permission form it prefers to use.
• This section will usually state when the permissions are to be obtained and submitted, typically together with the submission of the manuscript. Publishers will not and cannot begin to process your book for publication without these permissions in hand.
• Here is where you must decide whether the illustrator or contributor will be considered a co-author (and listed at the beginning of the manuscript and share in royalties -- that information will be noted in the royalties clause) or a (un)paid contributor granting permission to use his/her work.  

The bottom line is that you live well or suffer by your contract. The terms are difficult to understand sometimes, but understand them you must. Take them to an intellectual property rights lawyer if you do not understand them; it is worth the money.  

Lesson for today's Tuesday talk: While many things may be negotiable with your publisher, generally copyright, warranty, and permissions cannot be. These things are legalistic and pretty much set in stone in intellectual property rights and copyright law.

Read more posts about publishing HERE.

The Tuesday talks reflect real discussions between the management of MSI Press LLC and our own authors or those would-be authors who come through our doors but don't make the cut--yet. If you have a topic you would like addressed, leave the question in the comment section. Chances are, in our 18 years of publishing first-time and experiences authors, we have had a conversation with one of our authors that we can share with you.

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