Insight by Attorney Mitch Tuchman
Who Owns the Copyright in a Book?
The nature of most trade book publishing agreements is not a transfer of copyright ownership from the author to the publisher but a license granted by the author to the publisher to exercise some or all of the author’s rights for a reasonable length of time in a reasonable territory. That is why the phrase “the author grants and assigns,” which we often see in publishers’ preliminary drafts, is nonsense. An author grants a license or assigns rights. Not both. Where rights are assigned in writing, there would be no need for a license. Absent such an assignment, the author retains the copyright.
An author, particularly one with motion picture or theatrical connections, might wish to withhold dramatic adaptation rights, by way of example. Before doing so, however, consider whether, assisted by an agent or working alone, the author is any more likely than the publisher to consummate a sale. When in doubt, grant the publisher the rights for a limited period, subject to an automatic reversion of rights if no sale is made. The author should retain approval of sublicenses above an agreed amount.
Publishers frequently offer to register the copyright in a book at its own cost in the author’s name. This is of minimal value if it is not accompanied by a contractual provision that requires submission of an application to register a claim of copyright in the U.S. Copyright Office no later than three months following first publication of the book in the U.S. or one month following discovery of an infringing work, whichever is sooner. Timely copyright registration entitles the author to a broader array of damage awards for infringement. A publisher who fails to submit a timely application has disserved the author and, depending on the language of the publishing agreement, might have committed an irreversible breach. The publishing agreement should be clear about that. For safety’s sake, authors might prefer to apply to register their claims of copyright themselves.
This is the 4th article in a series intended to introduce readers to publishing agreements. Other articles in this series include: