Insight by Attorney Mitch Tuchman
This is the 2nd article in a series intended to introduce readers to publishing agreements. Click HERE for Mitch’s 1st installment.
Authors don’t live to see their copyrights expire. By law those rights endure 70 years postmortem and frequently pass unheralded through their owners’ estates to uninformed or indifferent heirs. Yet every day publishers negotiate agreements with authors on the basis of a grant of rights for “the full term of copyright and any extensions and renewals thereof.” How long should a publishing agreement endure? What is the optimal term? Confusion abounds when “term” means both the life (or term) of a copyright and the duration (or term) of the publishing agreement itself.
The Copyright Act grants authors rights to reproduce, distribute, perform and display their works and to prepare derivatives. Authors may also authorize others to do so throughout the life of the copyright or for shorter periods. Authorization is the essence of publishing agreements.
The majority of books have a brief shelf life, certainly compared with the “death plus 70” duration of copyright. Rare is the publisher with a reasonable expectation of exploiting the authorized rights for a century or more. Notwithstanding the customary author’s grant of rights in the work for the full term of copyright and any renewals and extensions thereof, changing times and changing tastes, changing media and changing business models suggest that the duration of a publishing agreement should be limited to a period reasonably calculated to encompass a book’s foreseeable viability.
Agreements can use the terms “life” or “duration” for copyrights and “initial term” and “renewal term” for the book contract itself. If a book’s commercial potential endures beyond the initial term, the publishing agreement can always be renewed with the same or amended provisions.