categories: Bad Advice / Cocktail Hour
Most agents and many writers know to strike any clause in a contract that gives away copyright, but not all. Here, from the Author’s Guild (which you might want to join if you’re not already a member) is the straight poop on a terrible practice that seems to be growing. And ask your university press to cut it out. You can also read it here, on the Author’s Guild website. [Used by permission.]
Authors should not assign their copyrights to publishers. As our Model Contract emphasizes:
“CAUTION: Do not allow the publisher to take your copyright or to publish the copyright notice in any name other than yours. Except in very unusual circumstances, this practice is not standard in the industry and harms your economic interests. No reputable publisher should demand that you allow it to do so.”
Most trade publishers do not ask for an outright assignment of all exclusive rights under copyright; their contracts usually call for copyright to be in the author’s name. But it’s another story in the world of university presses. Most scholarly publishers routinely present their authors with the single most draconian, unfair clause we routinely encounter, taking all the exclusive rights to an author’s work as if the press itself authored the work: “The Author assigns to Publisher all right, title and interests, including all rights under copyright, in and to the work…”
Bad idea. As Cornell University’s Copyright Information Center advises, “When you assign copyright to publishers, you lose control over your scholarly output. Assignment of copyright ownership may limit your ability to incorporate elements into future articles and books or to use your own work in teaching at the University.” And those are by no means the only potential problems. That’s why we admonish authors never to assign a copyright to a publisher or to allow a book’s copyright to be registered in any name but the author’s.
Yet the copyright grab remains endemic among university presses. To find out why, we recently canvassed several academic authors. Every form agreement that a university press had initially offered these authors contained the copyright grab clause. And yet every author we know of who requested to retain copyright was able to get the publisher to change the agreement.
The problem is that most academic authors—particularly first-time authors feeling the flames of “publish or perish”—don’t even ask. They do not have agents, do not seek legal advice, and often don’t understand that publishing contracts can be modified. So they don’t ask to keep their copyrights—or for any changes at all. Many academic authors tell us they were afraid to request changes to the standard agreements for fear that the publisher would pull the plug on their books. One said that when his first book was published in 1976, he never even read the contract and would (and did) sign anything to get published.
So we asked several university press representatives “Why is a clause granting copyright to the publisher the default language in university press agreements?” Here’s what they said (sometimes after consulting with their lawyers):
- “We are a non-profit press and we can’t do things that commercial trade presses do.”
- “The press is better positioned than the author to defend the copyright by use of premium outside counsel, as well as by use of an anti-piracy service to curb piracy.”
- “Having the copyright in the press’s name allows us to work freely to maintain the integrity of the work and maximize its publishing life.”
- “We’re close enough to the work to do the best job and we have incentive to protect the publishing mission.”
- “It makes it easier for the press because it doesn’t have to ask for an author’s approval when permission uses are granted.”
- “It eliminates any confusion as to which party should be contacted regarding re-use and sub-rights, etc. and it simplifies things in regards to piracy as well. Trade authors are more likely to have agents who may retain certain sub-rights and exploit them independent of any publisher relationship.”
Not one of these rationalizations passes the giggle test. While we recognize that most academic presses are non-profits and have narrow margins (the books tend to be scholarly and noncommercial), and many do indeed struggle to make ends meet, we take issue with the notion that taking an author’s copyright is necessary. The fact is that it simply isn’t necessary to own the entire copyright in a book (rather than licensing rights a la carte) to defend the copyright and bring a lawsuit, nor is outright ownership necessary to grant third-party licenses and permissions or to “maintain the integrity of the work and maximize its publishing life,” much less to “protect the publishing mission” (whatever that means). And when pressed, most of the editors we talked to sheepishly admitted that they always gave in when authors asked to retain their copyrights. Indeed, they confessed that they really had no clue why the default was the other way around.
University presses, we ask you to do the right thing: Revise your default boilerplate language so that the author keeps the copyright in his or her book without having to ask. Oppressive copyright grabs are routinely negotiated out of agreements by knowledgeable authors and agents, and there is no credible justification for their existence. It’s time for them to go.
Authors, keep your copyrights. You earned them.