Rights and Wrongs: a little talk about publishers and authors

Publisher to Author: You do the work. We pay you nothing. You relinquish all rights to your work forevermore. Oh, and about that word “commissioned” in the Guidelines. It means nothing.


You’re thinking, she’s kidding, right?


You are wrong. Let me tell you a little story.


I am the author of a book about Philip Pullman’s His Dark Materials. You’ll be hearing more about that later.


I was asked by a press, founded in 1887, which I will call – wait while I pull something out of the blue here, don’t want any litigation in my life —  “Closed Session” to write an essay for a book about His Dark Materials, a forthcoming volume in a series. By the way, there are 37 titles in this series.


The Guidelines sent by the editor included this statement: “4. This is a commissioned essay. Be prepared to revise your essay several times in cooperation with the volume editor and the series editor. Even the very best essays require some revision.”


Commissioned=money, right?


As the deadline approached I started fretting. If this is a “commissioned” work, does that mean it is a “work for hire.” Won’t that mean I’m selling my rights? And why haven’t I gotten a contract or agreement or something of that ilk? Shouldn’t that come before I’ve done the work and sent it off?


So I asked for clarification. The volume editor told me that there is no payment for the work (but I would get 10 copies of the book! If I had 9 kids, I might have some use for these.). And he included a clause from previous contracts to indicate what I could expect:


You hereby grant all right, title, and interest in the Work of every
kind, nature, and description to us, including, but not limited to (a)
the right to use, print, publish, license, exploit, sell or otherwise
dispose of the Work and any translation thereof in such form as we may
at any time see fit; (b) all subsidiary rights therein, such as internet
or intranet on-line network rights, electronic database, CD-ROM,
mechanical, or other electronic storage system (video or audio) rights,
including without limitation, e-book rights, and stage, radio,
television, and commercial exploitation rights, and the like; (c) all
publication rights therein, whether in book form or in magazines or
newspapers or electronic form, or otherwise; and (d) the right to secure
copyright in the Work in our or the Publisher*s own name and for us or
its own benefit in any country throughout the world and in any language
and to secure any renewal of copyrights.  Without limiting the
foregoing, you agree that we may transfer all grant of rights hereunder
to the Publisher.”


Reader, I bristled. Time to have a little talk…


I wrote the series editor who responded to the question about payment with the usual: tough market, hard times, limited readership. He said nothing about the contract clause. I replied, fine, I understand about lack of payment, but the question of my giving up all my rights remained.


Ten days passed: no reply: my take on this is that you can’t defend the indefensible.


While it is likely I’d lose nothing tangible by signing such a contract, and stand to gain nothing by not signing, I won’t be a party to this.  


I wrote the editor and told him that I simply can’t sign that contract and this means, of course, that I won’t be contributing to the book.


I also directed him to a great site I discovered as I thought about this situation called keepyourcopyrights.org, a service of the Kernochan Center for Law, Media, and the Arts, and the Program on Law and Technology at Columbia Law School. The clause in the contract I was expected to sign clearly belongs in the “incredibly overreaching” category. See: http://keepyourcopyrights.org/contracts/clauses/by-creator/2/overreaching.


The Assistant Director of the Kernochan Center, Pippa Loengard, agrees with me. I expect to see the offending clause added to the examples of “incredibly overreaching” clauses on that site. “Incredibly overreaching” is the very worst rating in its scheme and is delightfully designated by a nasty, fiendish, Grinch-like grabbing hand.


Tune in tomorrow, or some time soon, for an account of why a professional author can get away with violations that could ruin a high school student’s academic career. An alternate description — if I had as much money as Penguin Publishers – would include the word plagiarism. But I don’t. So I won’t be writing about plagiarism.


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