copyright overview





Many writers have a muddy understanding of copyrights. Here is some information to clarify things for you.



What is a copyright?


According to the US Copyright Office ("USCO"), a copyright protects published and unpublished original works “fixed in a tangible medium of expression.”


Copyright protects literary, dramatic, musical, and artistic works including poetry, novels, movies, songs, software, and architecture.


Copyright does NOT protect ideas, systems, or methods of operation. It’s an important distinction.


Your story is protected. Your story IDEA is not.


Side note: Don’t confuse copyrights with trademarks or patents. Trademarks protect specific words, phrases, symbols, and designs. Patents protect inventions or discoveries.


When is a work copyrighted?


Since 1978, a work is automatically copyrighted at the moment of its creation.


This means you don’t have to register your work with the Copyright Office in order for it to be protected by copyright law.


However, just because your work is protected, doesn't mean you can sue for infringement. You have to register with the USCO in order to bring a suit or collect monetary damaages.


What protection do you have without registering?


You can still send a cease and desist or DCMA notice against someone who infringes your copyright, and you can still license your work. It’s not much, but it’s something.


Without registering, how do you prove you're the creator?


Honestly, it’s tough. There are a couple things you can do that can help, but it’s an uphill battle.


First, there’s the myth of the “poor man’s copyright” that says you can mail the manuscript to yourself to prove you wrote it. Unfortunately, this is false. Mailing yourself a copy has no legal significance.


BUT if you’re trying to prove authorship, you can use timestamps. This is one of the many reasons not to save over drafts. Save each draft as a new document and you’ll have the file dates and timestamps.


There are also nonrepudiation websites that can help verify the authenticity of a document.


Nothing guarantees you'll win, but it can help to show that your creation dates pre-date a plagiarist's.


Why not register everything you write?


Money is a big reason. The USCO website has fee calculator to help you figure out the cost. It costs $105 to register one title. Depending on how prolific you are, those costs can add up.


But what if you just have one book? You could still end up with a high bill because of that word we writers love: “revisions.”


Let’s say you’re a nervous person and you’re afraid to show your work to anyone for fear they’ll steal it. So you write a draft, register it with the USCO to protect it, and send it to beta readers. The betas then point out several major problems. So you revise. You now have a different work than the one you registered. So you register the revision. Send to more betas, etc.


A typical writer revises several times before they’re ready to submit. So which version do you copyright? All? That could be extremely costly. Especially considering that most agents revise with their authors before submitting to editors, and most editors revise again before publication.


My debut novel went through seven drafts before going on submission. It would've cost more than $700 to copyright all of those versions.


The reality is that this isn't a cutthroat business. Most writers don’t want to steal your work. Most betas trust each other. You give them your manuscript to read and they give you theirs’. Neither wants the other to plagiarize.


Some writers are afraid to send full manuscripts to agents. I wouldn’t worry about that. Legitimate agents don’t want to steal your work either. You just have to do your homework and make sure you’re submitting to a reputable agent or publisher.


Sure, there are a handful of bad people out there, but most are okay. The good news, is that you don’t really have to register every single draft. You still have some protections without registration.


But do be careful posting your work in public places online. Snippets are usually okay. Someone may take your excerpt and build on it, but that type of infringement is typically easy to prove.


Be cautious when posting your full manuscript, though. A lot of sites have protections that won’t allow you to copy and paste, but that doesn’t stop someone from re-typing your words. Which has happened before. So be smart out there.


What name do you register under?


Your legal name receives full protection: your life plus 70 years.


A pen name is more limited gets either 95 years from the date of pub, or 120 years from the date of creation; whichever is shorter.


It gets further complicated if you register in your name, then end up revising with an editor and publish under a pen name.


Not to mention that copyrights are public information. So anyone would be able to find your home address and other personal information. If you wait to copyright when you're published, the publisher will register for you at their expense and with their information.


One final note


You can also copyright something you didn’t create if you own the rights to it.


For example, your uncle leaves you all his papers and writings in his will. You then legally own them and can publish and copyright them.


Mere possession isn’t enough, though. Sorry, but you can’t legally publish and copyright the contents of that journal you bought at a flea market.


You may want to leave your unpublished manuscripts to someone in your will, though, so they can legally copyright & publish your work posthumously.



This has by no means been an exhaustive discussion of copyright. US copyright laws are complicated and can get messy. But I hope this made some things clearer.


You can read further at www.copyright.gov, or feel free to head over to "Contact" or tweet @anchorandquill and ask.








OPTION CLAUSES & NONCOMPETES





Option Clauses


These are also known as “first right of refusal.” It means the Publisher gets to look at your next manuscript before any other publishers.


But it’s not always as simple as that. Keep a close eye on a few things here.


1. Keep the option as narrow as possible. Options usually start with wording like “Publisher will have the option to consider Author’s next work before Author subs to any other publishers.”


Which is super broad. Preferable language here would be “Publisher will have the option to consider Author’s next work of Young Adult fiction featuring the same characters.”


Or, if they won’t narrow it that far, shoot for something like this “Publisher will have the option to consider Author’s next work of Young Adult fiction featuring the same or substantially similar characters or storylines.”


At the very least keep it confined to the next work of whatever category/genre the contracted book is. MG/YA/PB/Adult Thriller etc.


2. Watch the timeline. How long do they have to consider the Work before offering?


It’s in your best interest to keep the timeline short so that you can sub elsewhere. Don’t let them keep it for months.


3. Also watch for language that says if you get an offer from publisher 2 you have to disclose the details to Publisher 1 & give them a chance to match.


You want to have as much freedom as you can to do what’s best for your career.


Options aren’t inherently bad. It’s a promise that the Publisher will consider your next work. But make sure it doesn’t tie your hands.


Noncompetes


Also called “Competitive Works.” A standard noncompete clause will say something like:


“Author shall not publish another Work that will compete or diminish the value of the contracted work.”


There are several ways to narrow this. Narrowing language is in bold.


1. “Author shall not publish another work of Middle Grade fiction” or whatever your category/genre is.


2.during the term of this Agreement” Don’t let the limitation last indefinitely.


3.featuring the same characters” If you can get them to agree to that. If not, then try "featuring the same or substantially similar characters or storylines"


4.in the Territory" The “Territory” will be defined in the beginning of the contract. This will be “North America” or “World English” etc. You want the freedom to publish in other countries or languages not covered by this contract.


5. “that will directly compete or clearly diminish the value of the contracted work.”


A broadly written noncompete may stifle your career. It could prevent you from co-authoring, or writing other books outside the contracted category/genre.


If you contracted a YA, you want to be able to then sell an adult novel to another publisher.


Or, if you contracted a picture book about seals, you want the ability to sell a PB about trees to another pub.


With both of these clauses, just remember to keep it as narrow as possible so that you’re able to take your writing in any direction.







SUBSIDIARY RIGHTS





Subsidiary, or “Sub,” Rights is one of those phrases you see a lot but may not know what it means. Let’s unravel it.




Primary rights are the Publisher’s right to publish the book. All other rights are secondary or subsidiary. Sub Rights are the Publisher’s ability to sell, license, exercise or dispose of the rights in the Work.


What “rights” does that entail? Well, there’s a lot packed under that one heading. Here are a few you should know.


First Serial


First Serial rights allow the Publisher to publish the Work for the first time in any form. You’re guaranteeing the Publisher that no one else can publish your book first. The split here is generally 90/10.


“Split” means how the author and Pub share the revenues. Author should get biggest piece of first serial.


Along the same lines, Second Serial is the right to reprint the Work. Most Publishers will retain first & second serial.


Splits


Let’s talk about splits for a moment, since they go hand in hand with Sub Rights. A lot of different factors determine the splits. In general, you’ll see larger publishers give larger splits, and vice versa, but it depends on the type of book, the likelihood of selling or licensing the particular right, etc.


Splits also vary depending on book type. Picture books may have lower splits than novels, especially if the Publisher hires their own illustrator. The splits may also be different for text only versions versus text and illustration versions.


Work for hire (also known as intellectual property or “IP” deals), splits are typically lower than standard percentages.


Foreign and Translation Rights


The difference here is subtle but important. This will differ depending on your home country, so we’re going to focus on US pub law here.


Foreign rights are the rights to publish the book in other countries in the English language.


Translation rights are the rights to translate the book into other languages & publish in other countries.


Whether you grant or retain these rights depends largely on your book & the market. If the book is about a ring of thieves stealing art across Europe, it will likely have greater appeal overseas. Greater overseas appeal means you probably want to hang onto those rights because authors stand a greater chance of making more money exploiting foreign/translation rights themselves.


If the book is on a uniquely American topic, like an election or say the Gold Rush, the rest of the world may not be as interested. In that case, you may want grant foreign/translation rights & let the Publisher exploit them. If you give up foreign/translation rights, you may be able to negotiate a higher split.


Speaking of splits, they range here. They can be as low as 60/40 or high as 80/20, it just depends on the Publisher, the book, and what else each party has already given or retained.


There’s a lot that goes into determining whether to grant or retain these rights. You need to know the current markets, predict trends, etc. This is where an agent comes in handy, but if you don’t have an agent remember this: each party wants to keep as many rights as possible and each party will have to compromise. There will be give and take in any contract negotiation.



Audio Rights


Watch the contract wording here. There’s a difference between Audio and Electronic rights, but they use some of the same terms.


Audio encompasses electronic transmissions, but only of sound reproductions of the Work.


Electronic Rights are e-books. Written transmissions of the Work.


Contracts typically divide these into two diff Sub rights. Just be aware of the distinction.


Ancillary Rights


Ancillary rights are rights that can be reasonably linked to other rights.


For example: you give up dramatic rights. The ancillary rights would be the right to perform the Work.


There is no strict definition of “ancillary rights.” If the Publisher brings it up, make sure they specifically define it in the contract.



This has been by no means a full discussion of Sub Rights. We could talk about it for hours & barely scratch the surface.


Movie/Dramatic rights, calendars, commercial, merchandizing, theme park, selection, book club. These are all Sub Rights too, each one with its own nuances. And each Publisher defines these terms in slightly different ways, and includes different rights in their lists.


The point of this #AandQChat has been for you to know what sub rights & splits are. School House Rock said it best: knowledge is power. If you’re going to be in this business, you should familiarize yourself with these terms. You may rely on someone else to negotiate these things for you, but you need to know what these things mean.


One final note: a good term to include in your contracts is a reversion clause if any Sub Rights aren’t utilized w/in a certain period. That way your rights are languishing. You can utilize them and make some money/get your work out thru other avenues.


As always, if you have any questions, please ask. I’m here to help!







AGENcy agreements





Congratulations, an agent offered on your manuscript! Here are some things to look out for in your agency agreement:



Insist on Writing


a. Always put it in writing. Don’t rely on oral agreements.

b. You need to be able to look back later & know exactly what’s expected of both parties.

c. Written agreements protect both writer & agent, & tell you from the beginning what the expectations are for both

d. AND, most importantly, you can go back to it later if you have a question, or if the relationship goes south. Oral relies on your memory. Memories of conversations aren't reliable. Especially in the middle of a dispute.

Number of Books


a. Some agents will want to represent you for your entire career.


b. Others will sign you for one book.


c. Know what you want first. Are you looking for an agent for now, or one for the long haul? This should be one of the questions you ask the agent when they offer representation.


d. Then know what you're agreeing to up front. What does the contract say? Does it reflect your understanding of what you and the agent discussed?


Agent Commission


a. 15% is standard. More than that is a red flag.


b. Another red flag is if your contract includes additional fees. The cost of making copies, postage, and typical office expenses is pretty standard. But if the agent is charging reading or submission fees, run away. No agent worth their salt will charge you to read or to submit your work to editors.


c. Think of it like a real estate agent. They get paid when they sell your house or when you buy a house. Literary agents are the same. They get paid when you get paid. You sell a book. The publisher sends the advance and royalty payments to the agent. They deduct their commission and send you the rest.


d. Also make sure your contract states how long the agent has to remit your advance and royalties to you. 30 days is fairly standard.


Termination


a. Upon termination, you're entitled to a list of every editor/publishing house your agent submitted to. You have a right to know where your book has been. And your next agent will need to know so they don't submit to those same editors again.


b. The author/agent relationship is a business arrangement, but think of them like a high-profile marriage for a moment. No one gets married expecting it to end in divorce, but sometimes couples sign a pre-nup just in case the relationship goes south. You don't expect the author/agent relationship to sour, but you need to be prepared in case it does.


c. Know what events trigger termination.


d. Know the duration of the agreement. Does it end after a certain number of years? The duration of the copyright? Does it auto-renew? Can you both end the agreement by mutual writing?


e. Know what your rights are upon termination, and your agent's rights. This gets tricky if you sell a book with one agent, then change agents. What does the prior agent retain and what does the new agent get?


f. This goes back to the very first point. Have all this in writing from the outset. Have your pre-nup so to speak, so that it's clear from the beginning what each party gets in case things don't go like you think.








FINDING AN AGENT





Are you a writer looking to get traditionally published (i.e. see your book on shelves across the country/world), but you don’t know where to start?

The first step is often finding an agent to represent you.
How do you find an agent? Here are a few methods:



Agentquery.com


a. Agentquery is a database that allows you to quickly search for agents by category/genre. You can then filter down.

b. It’s a great place to start, but it’s easy to get overwhelmed. It’s good to search in small batches while your manuscript is with beta readers.

c. You can make a spreadsheet, breaking down agents you like & their submission requirements. Mark off those closed to queries

d. Agentquery doesn’t always have the most updated info. So be sure to go to agent/agency sites for updated sub guidelines.

Manuscriptwishlist.com and #MSWL on Twitter


a. Manuscript Wishlist is the creation of literary agent Jessica Sinsheim (@jsinsheim). Agents/Editors tweet their current wish lists, and you find those looking for what you wrote.


b. You then go to their sites, find their submission guidelines & query them like normal.


c. Note: #MSWL is not a pitch event. It's a way to narrow down the many agents to find one that fits you


d. You can also go straight to the website and sift through all the tweets/wish lists.


e. Look through #MSWL, even if you’re not ready to query yet. It's better to start your "to query" list now, so you won't be tempted to procrastinate when your manuscript is ready.


Other Writers


a. Go to the bookstore, find comp titles, books that are similar to yours’. They could be in the same genre, or just with a similar feel, writing style, or tone. Are you writing a light-hearted romance? Look at some contemporary books. Is your writing a dark fantasy? Check out some thrillers, or dark contemporary. Flip to the acknowledgements & see if their agent is mentioned.


b. You can also check your favorite and comparable authors' websites, twitter bios, etc for agent info.


c. Make some writer friends. The publishing world is small. You’ll find the same agent names coming up again and again. You can find friends on Twitter, through contests, and writing forums like Absolute Write and Agent Query Connect.


A few tips:


a. I've been in the query trenches & know how scary/overwhelming it can be. Break agent finding into small, more manageable parts.


b. Query a dozen or so at a time. Too few can drag your query process out forever. Too many can overwhelm you if you start getting requests, and it can be hard to keep track of them all.


c. Make each query personal. Agents/editors hate mass queries. Don't CC/BCC. Remember: always follow the guidelines on the agent's site, be courteous & respectful.


d. And always, do your research. Anyone can tweet to #MSWL. Anyone can call themselves an agent.


How do you research agents? While not exhaustive, here are some resources to help:


Preditors and Editors


a. Preditors and Editors is a database of agents, attorneys, publishers, etc. It tells you who is reputable & who isn't.


b. Like Agentquery, Preditors and Editors isn't always up to date, but it's a good starting point.


Writer Beware


a. They maintain a list of agents, editors, and publishers who you should look out for.


b. Do a search on Writer Beware for the agent you’re interested in and see if anything comes up.


The Bewares forum on Absolute Write


a. Like Writer Beware, search for the agent you’re curious about. See what other writers are saying.


b. If you’re afraid to voice your concerns publicly, you can send private messages.


Publisher’s Weekly


a. Look at the Publisher's Weekly Rights Reports each week. Run a search for the agent you’re interested in. Have they had many sales? How long ago was their last sale?


b. It's not a perfect method because agents don't have to report to PW, & many don't. But it's another tool at your disposal.


Research Tips:


a. Ask other writers if you're not sure about an agent. Look at their record of sales.


b. Reputable agents/editors will let you talk to current clients.


c. Remember: author/agent relationships don’t always work out. This doesn’t necessarily mean those are bad agents, they just weren’t a good fit for that author, and that’s okay.


d. Along the same lines, some people don’t handle rejection well and take it out on the agent.


e. So, if you find an agent being trashed on a Bewares page, look at who is doing the trashing. One person? Take it with a grain of salt. Multiple people? There are probably some red flags.









Inaugural #AandQChat






The amazing Susan Spann was wonderful enough to include Anchor & Quill in her #PubLaw chat on 6/21. Here is what we discussed:




Professional Contract Review.


There's value in someone who knows what to look for and be wary of. Professional review doesn't have to be cost prohibitive. There are cost-effective options, and a lot of publishing attorneys are willing to work with you. Spending a couple hundred now could save you thousands down the road.

Too often authors get excited just to have an offer. And you should be. A publishing offer is a huge thing, but remember that a bad deal can be worse than no deal. It's hard to see in the moment, but don't let fear push you into a bad deal.


Agent or Attorney: which do you need?


It depends on the author's career choices. If you want traditional publishing with one of the Big 5, an agent is probably your best bet. But if you want to self-publish, or put your work in an anthology, or go with a smaller publisher, an attorney might be the way to go. Just remember to use an attorney familiar with publishing contracts. There are a lot of terms that are publishing specific.


Publishing Pitfalls. Here are some clauses to watch out for:


Competitive Works. This can limit what you write. Most of these clauses say you can't release a work that might compete for x number of years. Make sure the period of time isn't long (5 years is max. If it says "for the term of the agreement" make sure the term isn't the length of the copyright, or you could tie up your work for life plus 70 years), and make sure the restriction is narrow. Try to limit it to re-publication of the contracted work. At the very least, limit it to the same characters or topic. Never agree to limit your next work of fiction.


Option Clauses. Similar to the Competitive Works clause, keep option clauses narrow. When you can, limit to the next book in the same series, or the next book with the same characters. There should also be a time constraint on the option. Give the publisher 30-45 days to make an offer before you're allowed to submit elsewhere.


Failure to Publish. Along the same lines, make sure you have a Failure to Publish clause. There needs to be some sort of penalty if the Publisher fails to publish the work within the deadline. This keeps them from sitting on your book forever. 18-24 months is standard.


Morality Clauses. Some contracts try to dictate how the author must act, and penalize you for "bad acts." Negotiate this out when you can. Some contracts also sneak in nondisclosure clauses that try to muzzle authors--usually to keep authors quiet about the publisher's own bad acts. Watch out for both of these.


Advice


Susan and I each gave one piece of advice to help protect authors' careers. I said to always have an agreement in writing--don't let an agent or publisher talk you into an oral agreement--and know what the agreement says. And above all else, don't sign a bad agreement.


Susan said to never let emotion interfere with your business judgment. Having no contract is better than regret. Publishing is a wonderful business, but remember that it is still a business, and treat it like one.



That's all for now. Check back in next week when #AandQChat kicks off in its Jeopardy format.