Ask Author Law

What constitutes a revision?

March 28, 2015

Tags: Author Law, Contract Clauses, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Trade Book, Revision, Ebooks, Grant of Rights, Literary Agents, Subsidiary Rights

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: My editor recently approached me about a doing a revision of a trade book I wrote for her several years ago. But when I found out that the “revision” involved nearly doubling the size of the book and substantially changing the tone, I declined. Now the editor has hired another writer to do the “revision.” The new writer is going to share the copyright with me, get a substantial advance and then get half of my royalties when it earns out. What can I do?

A: Your question raises several issues that revolve around the revision clause of your contract. You should look at that clause to determine whether your editor’s “revision” and the deal with the revising writer is consistent with your publishing contract. Unfortunately, a broad revision clause is an invitation for the publisher to select to a collaborator for you who will share your credit, your copyright and your royalties.

The revision clause will dictate what amount of work may qualify as a revision, when the revision can take place and how the process will be handled. If revision is undefined in your contract, your editor will have some latitude in arguing that her plan is a revision. Ideally, however, your revision clause will include a definition of revision that caps the amount of new matter at no more than 25%. You should address this point when you negotiate the any future contract. If your editor is suggesting changes outside the scope of a permissible “revision” in your contract, you should bring this to her attention. If on the other hand, you have a broadly defined revision clause, then a major overhaul of your book is probably within their rights.

Another issue is copyright ownership of the newly-added material. The ownership of material added by the revision is less likely to become an issue if the amount of material added is small (i.e. a true revision). The issue becomes more complicated when a contract has an overly broad revision clause that permits a publisher to double the size of the work. But again, you must start with the contract - new material added to the book by a revising writer will either belong to the publisher (if the revision is a work made for hire/assignment) or the reviser (no work made for hire/assignment).

Your question also raises the issue of authorship credit. Some revision clauses are silent on the issue, while others give control to either the publisher or the author. Obviously, an author would want the contractual right to sole credit for his work, even if another author is hired to do a revision. In addition, look for a provision that permits you to withdraw your name if you don’t like the book.

The final issue is how you and the revising author will be paid. The revision clause will provide (some more clearly than others) how the payment will be made to a person hired to revise the work in the event that you decline to do so. Some contracts provide for sharing of royalties (on a pro rata basis or by a simple split). Others provide that the publisher will deduct the “actual cost of preparing the revision” from the royalties due to the author. In the latter case, the revising writer is paid a simple fee that will probably have to be earned out.

After looking at your contract, you’ll find that either your editor’s plan is within the contract or it’s not. If it’s not, or the clause is ambiguous on any the substantial issues, you should contact your editor, your agent, or your attorney to attempt to resolve the matter. If nothing else, be prepared to address these issues in your next negotiation.

Where do you get these questions? Do you make them up? It seems like you are biased.

March 13, 2015

Tags: Bias, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: Where do you get these questions? Do you make them up? It seems like you are biased.

A: These questions come from many sources. Some have been asked at writers conferences or classes where I have presented. Many have been updated from a column I wrote for many years in the newsletter of the American Society of Journalists and Authors. A few have reached me via Twitter. And some are composites of common questions that come up often. I guess you could say that those composite questions are “made up” in the sense that they were not directed to me by a single individual. But all are definitely questions that I have been asked. Most questions have come from writers, but some have come from those who disagree with my advice.

When I decided to begin blogging and tweeting a few months ago I decided to use this Q and A format as a way to address common legal issues faced by writers, authors, freelancers and other “content creators” i(in the parlance of today). Law is a second career for me after many years as a journalist, freelance writer, book author, and writing instructor. I went to law school with the express intention of learning how to represent my fellow writers and that is where my law practice is focused. And yes, I freely admit to a pro-author bias. I am a staunch supporter of authors’ rights and firmly against copyright piracy. I definitely believe that copyright law, although not perfect, remains relevant and important today.

I cannot answer questions personally via email. If you have a question for me, the best way to ask it is in a comment below. (Comments are moderated and I don’t encourage general discussion.) As I become a more experienced blogger, I will try to set up a contact area on this website so you can submit questions directly. In the meantime, I have a backlog of questions to answer. Thanks for asking.

More Copyright Bunk

March 4, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright Myths, Publishing, Books, Bunk, Contracts, IP Law, Intellectual Property, Piracy, Infringement

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: Isn’t it true that copyright lasts too long and that it gets in the way of the free flow of information? It seems to me like big companies use copyright as another way to be selfish and greedy.

A: There have been wild and misguided claims that copyright law is outdated and that information wants to be free since the advent of the internet. Such claims are simply not true. Many critics of copyright are really asking: "Now that it's cheap and easy, isn't it OK to steal words, music and art?" And I say that the answer is “no.” Copyright infringement is theft, pure and simple. Copyright law is clear and basic – words, pictures, and sounds expressed in a distinctive way and written down or otherwise fixed in a tangible medium of expression are the property of the creator, not the public.

Copyright owners give permission for the use of their work in a variety of ways. Many authors, for example, license their work to publishers or publish their books themselves and make money from sales. Some authors sell millions of books and become wealthy. For most, however, the income is modest. A few authors choose to their work available for free, and that’s fine. But the pricing decision is rightfully up to the author, not the reader. The same concept applies to music and movies. Musicians and moviemakers have the right to decide whether their work should be free or not.

"Thou shalt not steal," is a core tenant recognized in virtually every civilized society and it applies to the rights of copyright owners today. No civilized society recognizes a right to steal physical property, even when it's easy to do so and tempting to rationalize. No civilized society recognizes the theft of intangible property, either. Just as laws, both civil and criminal, provide penalties and sanctions for the theft of tangible property such as jewelry, bicycles, and soccer balls, copyright laws provide penalties for the theft of creators' rights. Stealing is stealing. And it's always been wrong.

So please don’t buy into the myth that “information wants to be free” or that it’s OK to help yourself to anything on the internet. Don’t be misled into thinking that piracy is noble. That’s all copyright bunk!