One of the main reasons authors opt to work with hybrid publishers is to be able to maintain the rights to their book. For that reason, we decided to take a closer look at rights — copyright, foreign rights, and subsidiary rights — and what authors should know about them when negotiating deals with publishers.

Our guest in this episode is Sujan Trivedi, the General Counsel to Greenleaf Book Group.*

2:00 How would you define copyright?

• The short answer is that copyright grants the creator of an original work the exclusive rights to its use and distribution.
• The concept of copyright developed in England in the 17th century and originally granted exclusive printing rights to a group of printers named The Stationers' Guild. If a printer wanted exclusive rights, they recorded their claim in The Stationer's Register.
  • In 1710, the English parliament passed the world's first copyright statute called the Statute of Anne and granted intellectual property rights to the author.
  • This law set forth the basics of our modern copyright protections. In 1790, the US passed its first federal copyright statute, which was based on the Statute of Anne.
  • International copyright agreements generally originate from the Berne Convention of 1886.
• Over time, these many laws made the concept of copyright very complex.
• Today, US copyright law protects not only books but all "original works of authorship," including: literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audio/visual creations.
  • These works are protected when they are fixed in a "tangible medium of expression."
• The basic rules for the length of copyright protection are that a work that was first fixed in a "tangible medium of expression" on/after Jan. 1, 1978 is protected until 70 years after the author's death.
  • A work made for hire or authored anonymously is protected for either 90 years after first publication or 120 years after creation, whichever is shorter.

8:20 What is the current guideline for authors using something in the public domain?

• Check everything on a case-by-case basis.
• If the author died more than 70 years ago, you're probably clear, but their are exceptions for works made for hire or anonymous works.
  • This is called the Mickey Mouse Rule because Disney pushed for an amendment to the copyright laws in the 90s to extend the protections for corporate works.

10:15 What is the difference between licensing content and a copyright?

• Just because you own the copyright to something doesn't mean that you can't allow other people to publish it in your stead.
• The contract between the publisher/author can make the scope and term of a license very clear.

11:30 What does the term Fair Use mean?

• Fair Use is meant to provide guidelines for when you can safely use copyrighted material without infringing on the holder's rights.
• The Fair Use doctrine is pretty complex and kind of subjective. The basic rule is that you can use someone else's material, in a limited way, for a purpose that is "transformative" (i.e. criticism, news reporting, teaching, parody, satire, etc.). In other words, you're making something new with the content, not just benefiting off the author's original content.

13:10 What is the difference between copyright and trademark?

• A trademark is a recognizable word, phrase or symbol that identifies products or services as belonging to a particular source. It's a business concept dealing with commercial branding, whereas copyright is a creative concept.
• Examples of trademark: the Nike swoosh, the Mickey Mouse character, the shape of a Coca Cola bottle, etc.
• Key differences between copyright and trademark:
  • A copyright is automatically created when the work is fixed in a "tangible medium of expression," whereas a trademark is only acquired through actual commercial usage.
  • Copyright protection extends only for a finite time, whereas trademark protection extends for as long as the mark is being used commercially and being defended against.
• There is some overlap between copyright and trademark.
  • Edgar Rice Burroughs created Tarzan and John Carter of Mars. Under copyright protection, his work would go into the public domain in 2020 (70 years after his death).
  • However, in 1923 Burroughs formed a company and trademarked his characters. The heirs that control his estate have been claiming both copyright and trademark violations in recent lawsuits.

16:30 What are the most common types of copyright infringement in publishing?

• The 3 most common examples of infringement happen with song lyrics, poetry, and photography. Authors often want to use them to open chapters or segue between ideas.

18:20 As an author works on their manuscript, what's the best way for them to seek permission for copyrighted material?

• The safest action is to obtain written permission from the copyright holder before publication.
• You should also credit the original author in your work.
• Start by searching for the copyright holder of the material you want to use, starting at the Copyright Office's website.

21:40 How does an author/publisher file for copyright?

• You don't technically need to file for copyright to be protected; however, it's highly recommended to file with the Copyright Office. Registering makes suing to enforce your copyright more straightforward and can affect the damages you may receive.
• To file for copyright registration, you simply fill out an application and send to the copyright office with two copies of the work.
  • You have to wait until after publication to file the application.
• Copyright registration is different than other elements of book compliance: ISBNs, LCCNs, and CIP data.

26:15 How can an author protect against infringement of their work?

• All authors should be very vigilant about protecting their own intellectual property because no one else has the incentive to look for infringement.
• Authors can monitor new releases in their own genre.
• They can also run searches for the title, key phrases or excerpts, or set up Google Alerts on the title or key phrases.
• A tool like Copyscape will check the internet for websites that are suspiciously similar to your own website.
• TinEye allows you to upload an image and search the internet for other places that image has appeared.
• If you discover someone has infringed on your work, you can either send an information email asking them to destroy/remove the content or send a more formal cease/desist.
  • Authors should keep records of that correspondence and also have their copyright registration handy.

29:00 What is the difference between foreign rights and subsidiary rights?

• A book contract between an author and a publisher is often limited in scope. Any rights that fall outside that contract remain open for future exploitation by the rights holder. Those are subsidiary rights.
• Common examples include: serializing the content, publishing in other formats (e-book, audiobook), producing the content in non-book form (notebooks, toys, clothes, etc.), film/tv rights.
• Foreign rights is a category of subsidiary rights that includes the right to publish the book in foreign territories and translate the work into foreign languages if needed for that market.

31:20 Can an author negotiate foreign rights?

• Negotiating foreign rights can be a very complicated process. Many authors opt to work with a foreign rights agent, who might bring knowledge of the territory and connections with foreign publishers.
• Anyone engaged in foreign rights negotiations needs to be very aware of the laws and standards will apply. For example, while a book may be in the public domain in the US, it may not be according to international laws.

Disclaimer: While we hope this podcast is fun and informative, nothing in it constitutes legal advice or establishes an attorney-client relationship.