Deborah Cooke: Author

Good things can still happen in tough times, and we’ll talk about one of them today. The book market had been going through a lot of changes in the last six or seven years, and although that creates challenges for everyone in publishing, one of the nifty things that has been happening is that authors’ rights have been reverting.

To understand what that means – and why it’s so fantastic – we need to talk first about copyright. (This is a long post, but I’m not inclined to break it up. Read part of it tomorrow, if you prefer.)

The basic concept of copyright is that the act of creation entitles the creator to certain rights of ownership. So, if you paint an image, or write a book, or compose a song, you own that work and the rights associated with it. Those rights include the right to reproduce and distribute the work.

How do you get copyright? Well, you get it automatically, just by the act of creation – or more specifically by committing your creation to a fixed format. When you commit your creation to a physical format – when that painting is done or the book manuscript is printed out of the computer – you have common copyright registration. Presto. You don’t have to do anything. Some people ensure that this act has a legal date associated with it – you can, for example, send a copy of the work to yourself by registered mail and keep it sealed. That way, if your ownership is ever challenged or the date of creation is ever challenged, you’ll have proof. I’m not sure this actually works in the real world, but it’s something you commonly hear of people doing.

The other way to register copyright is to actually register it with the copyright office in the country of jurisdiction. Books printed in the U.S. typically have their copyright registered with the Library of Congress, and print publishers do this for the author according to the terms of the contract. The copyright registration will match the publication date, incidentally, not the date of creation which obviously must have been sooner.

The other idea we should mention here is work-for-hire. Work-for-hire is more common in the non-fiction world – the concept is that creative impetus for the work comes from client not from the author. The author is essentially a hired pen. So, the documentation of corporate policy, manuals for companies or their products, even the text in annual reports and grant applications falls into this category. The writer – if freelance – is compensated for the work (often quite well compensated) but the copyright is held by the corporate client. Employees who do this kind of technical writing generally have it stipulated in their contract that the copyright for everything they write at work for the company will be held by the company, or it may be stated in corporate policy guides.

This notion of work-for-hire also appears in fiction, when authors are hired to write the next volume in the (for example) Amazing RatBoy series. In this case, the author is usually anonymous – there may be an established pen name used for every volume in the series – and copyright is held by the client. That might be the publisher, or it might be the author who initially dreamed up the RatBoy concept or it might be a literary trust because that author is dead but the heirs still want to perpetuate the series.

The notion is similar to technical writing – the idea is that the creative impetus for the work is coming from the client, thus the client holds the copyright. It’s common with this kind of work for the author to receive character sketches, backstory, details of the world, even the storyline for the specific volume itself. (These supplied materials can be called “the Bible” of the series.) The author fleshes out the basic story idea provided by the client, and does not hold copyright on the result. Harlequin’s continuity series are examples of work-for-hire, too – although the author’s name or pen name is on the cover, the copyright is held by the company because they create the notion of the series.

Why do authors do this kind of work? It’s often well-compensated, it can give the author the chance to try something different, and it also gives the author more exposure (because industry people know or can find out who wrote RatBoy #23, which was so much better than all of the other RatBoy books.)

Okay, back to regular copyright stuff. When an author creates a work of fiction and sells it to a publishing house, what the contract is really about is licensing the rights inherent in the author’s copyright, particularly the right to reproduce the work and sell it. And publishers traditionally have provided compensation to the author for that assignment. This happy union – and it can be happy – leaves the author free to write more works while the publisher goes about the packaging and selling bit of the business, leaving each party to do what he or she does best.

But embedded in the notion of licensing those rights is the idea that any surrender of copyright rights (like the right to reproduce the work) is a temporary consignment of rights. It’s not forever. It’s for now. So, every publishing contract spells out the terms under which the rights surrendered in the contract to the publishing house will be returned or reverted to the author.

These terms can be anything – rights can revert automatically one year after publication, for example, or five years after the work is deemed to be out of print, or four years after the house has exercised any of the rights surrendered in the contract. The possibilities are nearly endless. The only thing contracts have in common is that rights usually automatically revert if the publishing house goes bankrupt.

Why does anyone care? Well, when authors become famous, their older work will have been sold under less advantageous terms to the author – the publishing house that still owns those rights has the right to exercise them at the negotiated price. Most authors refine their skills over the duration of their career, or change their focus, and it’s common for authors to not want those older titles reprinted — especially if they’re repackaged to look exactly like the author’s new titles. If the rights have reverted, in contrast, the author can revise the text before republication and place the work again, negotiating better terms and having more involvement in the process.

Sounds sensible, doesn’t it? Well, the reality has shaken out somewhat differently from the concept. In the 1990’s, for example, it was considered a given that rights would never revert to the author. The terms of reversions clauses had steadily gotten longer, and the To Do list for authors pursuing a reversion of rights had gotten more complicated, and it was assumed that the first placement of rights would be the only one because that huge confluence of variables just wouldn’t happen.

In addition to that list of terms and conditions was added one more industry practice – the house would usually only discuss a rights reversion with the agent of record. What that means is that the agent who negotiated the initial deal is the only one who could discuss the reversion of rights to the author. Well, a great many authors have one agent at the beginning of their career and change to another once they become more established. So, only that original agent could negotiate the reversion – and why would that agent do that? The new agent is the one currently representing the author and thus the one who would make any new placement for the work – the old agent would do the work (and rights reversions are a pain to pursue) so the new agent could make more money. Some agents do it, out of courtesy to their former client or for the sake of professionalism, but others – especially if the parting of ways was less than sweet – don’t.

Finally, the rights that tended to be available for reversion were the rights for works of authors who were no longer writing. In a real sense, they were rights with no market value. Authors might pursue the reversion, but there wasn’t a whole lot of placement going on subsequent to the reversion.

So, rights tended to stay put and the first placement was the only one — until about five years ago. The interesting thing that is happening now is that the burden of backlist is evidently becoming too great for publishing houses. They can’t keep everything in print in some format, even digitally – of course, there are upfront costs for making digital versions available, too. Rights are reverting like crazy. Woo HOO! It’s quite wild. Pubbed author meetings over the last couple of years have included a lot of incredulous whispering and high fives. This is a fantastic opportunity for authors to regain control over their own backlists.

And when the market turns around again – because everything is cyclical – a lot of us will have a whole bunch of backlist rights jingling in our pockets. That’s a good good thing. (Funny but I always think that authors having more choices is a good good thing!)

What’s reverted for me? (Or what prompted this soliloquy?) Funny you should ask. The rights for all six of my books published by Warner/Grand Central (the Ravensmuir trilogy and the Kinfairlie trilogy) all reverted last month.

ALL SIX! Jingle, jingle. Hear those rights in my pocket? Rosamunde has returned to the Château! She’s already been hassling me about her story, and I’m trying to figure out the best way to tell it and place it. But I’m glad to have her back, that’s for sure.