No matter how or why you publish your book, eventually you’ll have to deal with some kind of publishing contract. There are many kinds of contracts and they cover many areas of publishing. We chatted with Joe Sisto, an entertainment lawyer, to help us make sense of the basics of publishing contracts.
Joe is the founder of Montreal-based Sisto Entertainment & Business Law Services, a boutique law office that provides legal counsel to clients in the media and entertainment industries. Sisto’s focus is on all aspects of the development, production, financing, licensing and distribution of film, television, book publishing, theatre, music, and new media.
Listen to our podcast episode with Joe, and don’t forget to share, rate and review! Keep reading for the most important takeaways from our conversation.
Why are publishing contracts important?
When two parties make an agreement, having a well-crafted written contract explains clearly what each of them brings to the relationship: what their rights and obligations are. This helps to minimize misunderstanding and disagreement between them later.
Oral contracts are usually valid, but with a written contract, you have proof of who agreed to what.
What is copyright and how does it compare to moral rights?
Publishing contracts will usually include clauses related to both copyright and moral rights.
Moral rights are not the same as copyright. In fact, different countries have different ways of interpreting the concept and in some, it doesn’t really exist. Moral rights have to do with the artistic integrity of the work.
Say, for example, that the singer who bought a portrait from you takes a Sharpie and draws a big moustache on it. If you still have the moral rights to the painting, you can say that they have violated the artistic integrity of your work. If you’ve waived your moral rights to the painting, however, the singer can add a moustache in Sharpie or they can cover the whole thing with glitter or do whatever they want with it.
In a publishing contract, waiving your moral rights as the author means that the rights holder can completely rewrite the story and turn it, for example, from a heartwarming childhood memoir into a horror story featuring dinosaurs and there’s nothing you can do about it.
Copyright is essentially the exclusive right to produce, reproduce, publish or perform an original literary, artistic, dramatic or musical work. The person who created that work is the owner: in the case of a book manuscript, that will be the author. The work is considered intellectual property, which is an asset. As the owner of that piece of intellectual property, you have the exclusive right to copy it and to exploit it. You are the only one who can decide how to use that work.
As the copyright owner, you can decide to license or sell rights to the work to other parties.
- When you license rights to your work, you’re giving someone permission to reproduce the work or excerpts from it. It’s almost like painting a portrait of a singer and allowing them to use a copy on their album cover: they get to use it but ultimately, you still own it. A licence can have unique characteristics. For example, it can be revocable or irrevocable, exclusive or non-exclusive, limited to one geographical area or worldwide.
- When you assign the rights to your work, you’re selling the copyright. The buyer then becomes the owner. If you sell your painting to the singer you painted, you don’t have any say in what they do with it. Similarly, you can’t really dictate what the new owner of the copyright to your work does with it.
Why should I care about publishing contracts if I’m self-publishing?
If you self-publish, you don’t need to draw up a publishing contract since the publisher is you. However, you’ll still have to sign publishing contracts. For example, the agreement you sign when you upload your book to Amazon or IngramSpark is called a contract of adhesion: it’s a standard “take it or leave it” kind of contract that may cover similar issues that a contract with a traditional publisher would cover, including who owns which rights.
What if I want to sell my book in other countries?
Because different countries have different laws governing copyright, a publishing contract that is valid in Canada isn’t necessarily going to be valid in the United States, the United Kingdom, Europe or Australia. For this reason, every publishing agreement will mention territory. Big publishers often push for having the worldwide publishing rights in all languages, media and formats. As an author, this can benefit you because the publisher can better exploit those rights and this means more money for you.
However, if a publisher is weaker in certain territories, they might get smaller publishers in those territories to publish your book for you. This means more expenses and less money for you. It may serve you better to negotiate a deal where those weaker territories aren’t included in the territorial rights and you can negotiate better deals with those smaller publishers directly. Similarly, you may decide to grant only the English language rights and retain the right to have your work translated and published in other languages.
Can I get my rights back?
If you decide, for instance, that you would like to switch from a traditional publisher to a hybrid publisher or would like to self-publish, you’ll need to get out of the publishing contract and get your rights back. Unfortunately, this is easier said than done: typically, you can only do it if there is a breach of contract on the part of the publisher.
The good news is that the publishing contract, aka the agreement, is usually only valid for a certain period, and when it expires, you can decide not to renegotiate. The bad news is that period can be quite a long wait. The lesson to learn is to never negotiate publishing deals yourself: always hire a reputable lawyer with experience in publishing contracts to at least explain the terms of the contract to you before you sign anything.