Thursday, March 24, 2011
Lesson 3: Lease, Don't Sell
If you sell your house, you give up control. The new buyer can remodel your "perfect" kitchen or even tear the house down, and there is nothing you can do about it. If you rent it out instead, you can restrict the tenant's ability to make changes, say how long the lease will last, and even provide for early termination if the tenant trashes the house or falls behind in rent payments. While it isn't a perfect analogy, the same is true for copyrights.
Copyrights are property, and you can sell them. You can also rent ("assign" or "license" in copyright lingo) some or all of the exclusive rights that go with them.* These include the right to reproduce your book and to distribute it to the public. I'll deal with others next month when I cover subsidiary rights.
A grant-of-rights clause establishes who owns the copyright and who gets to exercise which of the rights that come with it. At a minimum, royalty publishers expect authors to assign them the exclusive rights to reproduce a book and distribute it to the public. And they should expect that. These rights are the main thing a royalty publisher receives in exchange for taking the monetary risk from publishing the book: a risk that wouldn't be worth taking if the author could compete with the publisher.
While a royalty publisher expects to have the benefit of these exclusive rights, it can protect itself by renting them from the author; it does not need to buy the copyright. If the publisher is responsible for registering the copyright, the contract should say it will be registered in your name. Personally, I would never sign a contract giving the copyright to the publisher. That is a sale rather than a lease, and if I wrote it, I want to own it.**
This is one place where the house analogy breaks down, however. A contract that sells the copyright to the publisher may contain provisions limiting what the publisher can do with it and providing for the publisher to return the copyright to the author if certain events occur. This is how some academic publishers handle the situation. So if you do decide to sell the copyright, make sure you can live with the terms of the sale.
The copyright lease may be, and often is, for an indefinite time, but the contract should contain some provisions for terminating it. I will talk about those clauses in a later post.
If you are paying to have the book published, there is no reason to lease out your exclusive rights. You can give the publisher permission to reproduce and sell books on your behalf and to register the copyright in your name without giving up your ability to find a different publisher or distribution method any time you want.
But if you are entering into a contract with a royalty publisher, you will have to give up some of your rights. That's just the way it is. So what do you look for when deciding whether to sign a particular contract?
For me, it's as simple as "lease, don't sell."
Kathryn Page Camp
* The term "exclusive rights" is misleading, because the law allows certain fair uses. Absent a fair use, however, these rights belong exclusively to the copyright holder unless the copyright holder assigns them to someone else.
** The one exception is a work-for-hire, which I talked about in my November 25, 2010 post.