chapter3

Chapter 3

Licensing Your Work and Assigning Your Copyright

This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License.

This chapter deals with one of the most exciting aspects of copyright: deciding how your work will benefit the public - and how it will benefit you! We will discuss some important concepts you'll want to know before entering into negotiations with another party to disseminate your work. While happiness may lie "in the joy of achievement" and not in money - having adequate compensation for your creative efforts certainly doesn't hurt.

Image provided by QuiteLucid

Part I: Contemplating Your Goal

This section touches on ideas that you, as the author of a copyrighted work, may want to consider as you look to disseminate and profit from your labor. While you have the option to work entirely without the help of third parties, many authors and artists interact with entities such as publishers, producers, or licensees when marketing their work. These enterprises need your permission to utilize your work in a way that will benefit everyone involved. Almost always, permission comes in the form of written contracts. This is not just to keep copyright lawyers employed � it is an opportunity for you to bargain and craft your agreement so that your goals, both present and future, can be met.

Speaking of goals, the best place to start is to sit down and think �what do I want to do with my work?� One goal may be to make as much money as possible. Another goal may be widespread dissemination � you just want as many people as possible to read your work. Many scientists and scholars are happy receiving no money at all for their publications. They just want their works read and their names associated with their work. It is up to you.

In addition, it might be helpful to consider where you want your work to be in 5, 10, 20, or 50 years from now. Do you see your work in a movie? As part of a video game? An e-book? The possibilities are endless!

For example, here is a collection of "Hairspray" items - a wig, cards, CD, and movie book - all inspired from a single work. Image (and collection) provided by Room317. And this is just one collection!

Once you�ve identified your goals, you should prioritize them. Figure out which ones you absolutely must have, and which ones are nice but not as important. There are at least two important reasons for doing this. First, organization is simply a means of helping you get what you want. If you don�t know what you want, you probably won�t get it. The second reason is that bargaining, like most things in life, ultimately involves compromise. A publishing company or a licensee will have its own set of goals. You may have to give up some rights in order to secure your most important goals. Knowing ahead of time what you are willing to give up will make life much easier and will help form a more satisfactory contract for you.

When formulating your goals, you should identify every individual that contributed to your work. You will need to know if others have potential claims to your work. Co-authors or contributing associates may be entitled to a portion of your profits. If your work was created as part of an employment agreement or in the context of a job, your employer may have a claim to the work. You should also check the sources of information you used or funding you received to see if you have contractual obligations from prior arrangements. Any claim on your work by others could significantly affect what you can do with your work. We'll talk about this more in chapter 7. And, if nothing else, the publisher will want to know this information during the negotiation process.

For purposes of specific instruction, I will assume you have authored a book and will be negotiating with a publishing company to have your book published and sold. This will help illustrate, with a more detailed example, what issues you might consider when negotiating your own contracts. The principles and notions raised in this context should easily translate to other works or mediums.

Part II: Rights and Comittments

Your publishing contract will allot certain rights to you and certain rights to the publisher with respect to your work. Your contract may also bind you and the publisher to perform (or to restrain from performing) certain actions.

Publishers generally want you to assign your copyright to them. This is a transfer of ownership from you to the publisher. But the assignment does not have to cover the entire copyright. For example, you can agree to assign the right to publish the book in hardcover form, but reserve the right to publish (or assign to another publishing company) the right to make the paperback version. You can slice your copyright virtually any way you'd like. Realize, however, that the publisher will insist on receiving certain rights. You will need to use your prioritized goals to determine which rights you can negotiate away (i.e. the paperback rights) so you can retain other rights (i.e. motion picture rights).

Assigning your rights means more than transferring the right to produce your work - it also transfers the right to exclude others (including you) from using the work in an infringing manner. Sometimes it is in your interest to transfer rights to the publisher because they have greater resources to pursue infringers. On the other hand, you lose control of your work. How you fashion your agreement is up to you and your prioritized goals.

Second, in your discussion with the publisher, you might negotiate schedules for when certain actions need to be taken. While there are many ways to format a contract, schedules provide an organized way for you and the publisher to make clear (and in writing) who needs to do what and by when. These schedules act like a project manager to oversee the entire operation. For example, one schedule will probably dictate when you, as the author, will have your manuscript completed. But don�t worry; these timetables don�t have to be set in stone. Often, the contract includes a term that allows the parties to agree to change the schedules from time to time. The important part is to think of everything that needs to be done from start to finish � and get it all written down.

Despite your best efforts, your contract probably won�t anticipate every situation. But that�s ok � you can negotiate default rules to cover any unexpected or surprise situations. The default rules are broad guidelines which fill in any missing parts in the contract. In other words, they act like a safety net to guide you and the publisher in the event that something really weird happens.

Part III: Author�s Representations and Warrantees

Due to the way copyright law is structured, if a company published a book containing infringing material, that company is in trouble. It doesn�t matter that it didn�t write the material, only that it made and distributed copies of the work. So, in order to protect themselves, publishers will want you, as the author, to make certain representations and warranties. Mostly they want you to declare that your work is legitimate, accurate, and is not infringing anyone�s rights in any way. The company may also ask you to identify anyone who may have a claim to your work, such as a co-author or employer. This is one way they protect themselves and why you will want to double check to make sure you know every source that contributed to your work. Contributing authors can be a problem downstream.

There are a couple of items a publisher may want which require serious thought on your part. A publisher is likely to ask for some level of indemnification. This basically means that if the publisher is sued because of your book, you are responsible and are on the hook to pay for it. This can be a heavy load if you are flying solo.

At the same time, there are different levels of indemnification. You and the publisher are free to structure the agreement any way you choose. The specific terms can very greatly. For example, the publisher may retain the right to choose the attorneys but require you to pay the legal fees. As you might guess, this can be costly. Some agreements, however, only require an author to provide his best efforts to help resolve the issue.

On the other hand, you may want to use this agreement to ensure that your publisher stands with you in the event you are sued. Having a powerful company on your side can go a long way. In any event, the responsibilities between you and the publisher in the event of a lawsuit will be an important issue to address during your negotiations.

Think of the form or mediums in which you want your work to appear. Modern technology has made digital forms of a work more valuable than ever - make sure you cover these avenues as well.

I want to quickly reiterate some of the realities of the process. Barganing a publishing contract requires compromise - there will be certain benefits you want and certain benefits the publisher will demand. You will likely need to concede or modify some of your goals in order to get others. By identifying the primary goals you must have, and secondary goals you are willing to sacrifice if necessary, you will have a much greater chance of creating a successful and agreeable contract.

Your contract will also identify the publisher�s obligations, such as when it will publish your book, what marketing efforts it will make, or the format of the publication. In addition, you may want the publisher to identify any proposed reviewers and the nature of the revisions. Some authors want the right to approve any changes whatsoever to the book, and others only want to see substantive changes rather than grammatical repairs. Your contract will also contain the compensatory terms of the contract. This covers the specific terms of advances, royalties, or any other methods of compensation.

Contracts can indeed limit your liability but also the publishers. Be careful! Image provided by Suffrboy.

Part IV: The Negotiation Process

The contract might also include other responsibilities allocated to you, such as marketing responsibilities (i.e. book signing tours). For some people this can be an enjoyable experience. For example, you may have the chance, as did Nora Roberts, of meeting and greeting your loyal readers. Also, having marketing responsibility lets you continue to have a direct impact on the success of your work. Overall, think of what you would be willing to do to help make your book a sucess.

On the other hand, you should identify possible commitments or obligations you would prefer to avoid. For example, a publisher may want you to refrain from selling a competing work or may want you to commit to publish any future work with them. If you have different ideas for your works, both present and future, you will want to negotiate a better bargain. In our present example, a publisher might be willing to accept a "first refusal right" - basically an agreement that gives the publisher the right to match or beat any other offer for your future works. In this situation, you may want to research the publishing company to find out how it treats authors. Is it the kind of company you would like to be tied to in the future? Or would you prefer the option to go somewhere else?

The publisher may want you to do other things as well, such as getting a written document from any contributing author. They want this to avoid any potential problems down the road once your book becomes a best seller.

Image provided by devillibrarian

As you form the overal strategy and goals for your work, I would suggest the following: consider how you can use your copyright to increase the value of your work in the digital age. For centuries, people paid for access to a work. Access came through distributed copies - that is one reason why copyright law is written the way it is.

But things are changing. The internet is based on copying and distributing - all done freely and efficiently. Thus, the value of a work may no longer lie in access and distribution. In fact, Paul Sweeting reported that Gerry Faulhaber, a professor at the Wharton School of Business at the University of Pennsylvania and the former chief economist for the FCC, stated "If you have a business model based on copyright, forget it."

I highly recommend reading Kevin Kelly's "Better Than Free." In it he proposes "Eight Generatives Better Than Free" from which value may be derived in a digital world. He suggests ways in which your work can generate a profit while existing open and available to all on the internet. I suggest reading his ideas and then thinking about how to best utilize them in marketing and distributing your work.

Part V: Some Unsolicited Advice