Protecting your rights
Allowing your work to be published without a copyright notice can be like allowing squatters to build themselves permanent dwellings on your land. As in real estate, where someone using your property, even without your knowledge, might set a legal precedent for them to continue to do so, so can the author lose or compromise his literary rights by not properly protecting them. And you cannot sell what you do not own.
Although under the Copyright Law of 1978 you do have ownership of your literary material from the time you create it, protecting these rights requires that you be conscientious about filing for copyrights. The copyright should be in the author’s name (although it will be the publisher’s job to register it) and the copyright notice must appear in the proper form in the published work.
If someone wants to use an excerpt of your copyrighted work in his book, he must get permission from you (or your publisher) in writing. Usually, this involves a payment, even if it’s just a token amount.
Material that can be used by anyone without permission is said to have entered the Public Domain. It can include material for which copyright protection has not been provided, and material for which the copyright has expired or not been renewed. (The latter applies only to books published before Jan. 1, 1978. Copyright for books published after that date automatically extends to 50 years after the author’s death.)
Selling the “rights” to use your literary material is separate from selling the actual “ownership” of the material. You are not really selling your property, you are selling the rights to use your property for a period of time. Your agent will see to it that your literary contract will have provisions for your rights to revert back to you.
The publisher should supply the author’s agent (or the author) with copies of the licenses entered on the author’s behalf, but unfortunately, this is not standard procedure. Even if your publishing contract is later terminated, these licenses remain in force for the time period specified in the license agreement, and the publisher and author each still receive their respective share of the profits.
If you sell the copyright, you lose ownership—at least for 35 years, after which time you may get the property back. But most material has lost its market appeal by then, and who knows if you’ll be around to benefit from it anyway?
Selling your writing as a work-for-hire is not a good idea, since all rights, as well as the copyright, go to the publisher, usually for one flat sum. Your name may or may not appear on the published piece, and your work can be altered or used in any manner the buyer pleases. You will not get royalties (with some exceptions), you may not get recognition of your work, nor will you even necessarily know how your material has been used. Think carefully before selling your rights this way.
Having said the above in 1993, when I was vehemently opposed to work-for-hire agreements, I now must add that the publishing landscape has changed. Sometimes, in certain instances, doing a work-for-hire or a variation of work-for-hire project makes sense as a means to launch a career or to build writing credentials in a difficult marketplace. Before doing so, however, get expert advice.
An author must understand that his literary properties involve a myriad of rights and each right should be given knowledgeable consideration when any sale is made. Not only should you understand what rights you are selling, you also should know how you and your publisher will share the earnings from the rights you grant to them—all of which will be spelled out in the publisher’s contract.
It’s desirable to pursue every possible subsidiary right. Not only does this translate into more earnings for the author, but also it greatly enhances the sale of the published book. If the publisher has no interest in pursuing certain rights, these should be retained and marketed by your agent.
Copyright 1993, 1994, and 1998 by Barbara Doyen. All rights reserved.