Publishing
Legal issues to consider when self-publishing
Self-publishing can be an exciting and rewarding way to get your work out into the world. With the rise of digital publishing, it has never been easier to self publish
If you’re an author, there are some basic things you must know about publishing contracts.
Whether you are looking to publish a manuscript for a book, e-book or other publication, a publishing contract can make all the difference for an author, to ensure that they get the best deal to compensate them for their hard work creating the manuscript.
In this article, our publishing lawyer, has outlined 8 key considerations for authors to think about when it comes to their publishing contract.
If you’re not using a publisher, check out our other article for legal issues to consider when self-publishing.
Firstly, in Australia, the author (by legal default) owns the copyright in the manuscript they have created. An author should remember that when they are licensing their copyright to publishers, they are not transferring ownership to the publisher.
They are only giving them permission (a ‘licence’) to use their manuscript in order to publish, produce, market and sell the book in the countries, languages, and formats specified in the contract. At all times, they are retaining the full ownership of the copyright.
On the other hand, if an author assigns, vests or transfers copyright ownership to the publisher, the author is relinquishing its ownership of the copyright in the work and the publisher becomes the new owner.
Learn more about copyright ownership in our article.
This signifies the duration for which the author is licensing their copyright to the publisher.
Usually, most publishers try to set this as the full term of the copyright, which is generally the author’s lifetime plus 70 years after death.
More often than not, publishers try to obtain a broad licence from the author. The scope of that licence can be:
Most authors usually assign the copyright in journal articles either to the journals of the publishers. The publishing contracts in such scenarios are known as copyright transfer agreements.
However, while publishing a book, the authors usually grant the publishers a licence. When authors sign the copyright transfer agreements, they grant their rights as both author and copyright holder to the publishers. This signifies that the author might have to need permission from the publishers for:
Until and unless the publishing agreement states differently, the assignment of copyright is generally permanent. However, if the author assigns the copyright to the publishers, they can enter into agreements with other parties to use the work at their discretion.
The authors need to allow the publishers certain rights over their work for the entire agreement term. Granting these rights to the publishers only signifies that the publishers can publish, communicate, and distribute the published work online. They can sublicense the material as well.
Usually, the duration of the agreement varies from one contract to another. However, some agreements can be perpetual or indefinite. For example, if the licence granted by the author includes the right to sublicense, then the publishers can further grant the same rights allowed to them to a third party.
On the other hand, the author cannot grant these rights to anyone else as long as the agreement is in place.
Just as authors can grant exclusive licences to the publishers, they can also give non-exclusive rights to some other party or publishers. When the authors sign a non-exclusive licence, they can keep the rights to licence their work with other publishers.
Nevertheless, there might be qualifiers to this, like confirming that the publishers possess the right to the first publication of the material.
When publishers plan to publish an author’s work under an open licence, also known as a Creative Commons licence, they are prohibited from claiming any exclusive publication rights. In such a scenario, the work is made available freely for further distribution under the terms of the licence.
However, the publishers are more likely to ask for first publication rights under a non-exclusive publishing agreement. Nevertheless, in rare cases, the publishers might also ask for a transfer of copyright to themselves.
Most contracts that follow industry standards allow the authors to keep all their rights for any media, audio, and merchandise.
However, authors must check whether their publishing agreements allow them to retain the subsidiary rights or whether the publishers have the said rights.
While it is possible to negotiate the film or audio rights later when the book becomes successful, it is best to negotiate it at the outset.
Authors are usually paid royalties, which are essentially a percentage of either the net receipts or the retail price (excluding GST) that the publishers receive from the purchaser or the book’s seller.
If you’re an author that is negotiating royalties, you need to consider the following:
The publishing agreement must include clauses that clearly explain how the royalties will be paid and at what rate. The authors can also negotiate with the publishers for rising royalties depending on the total number of sales.
This signifies the amount that the publishers are ready to pay the author in advance before the publication. This is the prepayment of a part of the publishers’ royalties to pay to the author on the first printing.
Fundamentally, the purpose of a non-compete or exclusivity clause is to prevent the authors from writing another book having similar content that can undermine the sales of the current book they are contracted to write. This helps in protecting the publishers’ investment in the book.
But what if an author wants to write a sequel to the current book, but the publisher doesn’t want to publish the sequel? You can get around this issue by giving the publisher the first right of refusal so that if they decline the offer, the author is able to approach other publishers.
Alternatively, an author could require a publisher to publish a sequel if the first book hits a certain threshold of sales (demonstrating that it is a commercially viable publication for the publisher).
Authors must be careful to read and understand their obligations while drafting the publishing contract. Typically, a contract will require the work to be original and not plagiarised in any way.
Authors also need to have secured permission for any copyrighted content they might have used. They must also make sure to deliver work on time and at a publishable standard.
Finally, they should be ready to participate in the proofing and editing stages of production quickly and professionally.
In a publishing contract, authors may need to warrant that:
Publishers generally agree to pay for all the costs involved in the production, marketing and distribution of a publication.
They may also take charge of selling and marketing the author’s work on the agreed schedule. On the other hand, the author must ensure that the agreement includes a clear deadline for publication.
The publishers must also undertake the responsibility of paying the royalties to the author and issuing sales statements or accounts.
As authors spend so much time and effort creating the work, they must make sure that the publishers cannot alter their work without their approval.
Most publishing agreements include a clause that strictly states that the publisher must obtain the authors approval before making any amendments to their work.
If the publishing contract fails to include such a clause, authors should negotiate with the publishers to incorporate this clause.
These rights are referred to as ‘moral rights’ and are protected by law. In fact, moral rights are protected by the same law that governs copyright, the Copyright Act 1968 (Cth). Moral rights apply only to individuals and include that an author of a work has the right:
If an author’s moral rights are infringed, there are legal consequences including that the author may bring a legal claim against the person or business who has infringed their moral rights.
A marketing, advertising or promotional clause should cover the book’s presentation in terms of the title, images, and cover design. It should also includes the sales process as well as the marketing strategy required to promote the book.
Generally, the publishers ask the authors for their opinion on how the book covers should look. More often than not, the publishers even contemplate the ideas provided by the authors and try to incorporate them.
However, suppose an author wishes to have more significant input while collaborating with the publishers to find the right design for their book. In that case, they should negotiate with the publishers before signing the publishing agreement.
Upon receiving a copy of the publishing agreement, authors should review the agreement and determine if a delivery clause is mentioned in the contract or not.
This clause sets out the date by which the authors are required to deliver the final copy of the work to the publishers.
Authors should consider whether this deadline is achievable, whether things outside of the control of the author may cause delay and a mechanism for extending the due date for the publication.
Authors must also ensure that their contracts include a publication deadline as well. Doing so will ensure that both the authors and the publishers are aware of the significant dates.
Authors should also note any other additional requirements mentioned in the delivery clause that they may need to negotiate or comply with.
Learn more about the importance of having your publishing contract reviewed by a lawyer.
Some publishers do not want to use publishing agreements. In such cases, they are allowed to publish the author’s work only for the purpose for which it was submitted.
They would not be allowed to re-publish the same article anywhere else without getting the author’s permission.
It’s in the best interest of both the parties involved to have a dispute resolution clause included in the publishing contract.
Doing so helps in establishing the steps that the authors and the publishers should take if any misunderstanding or disagreement arises.
Following this process will also spell out clearly who will be the ultimate decision-maker and the appropriate type of dispute resolution.
A publishing agreement generally covers information such as:
Generally, publishers sign an agreement with an author before publishing the author’s work. This is known as a publishing agreement.
Generally, authors will be provided with a publishing contract in a form that the publisher or publishing house has prepared. This means it is already weighted in their favour.
As an author, you must engage an experienced publishing lawyer to negotiate on your behalf and ensure you are getting the best deal.
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