Power Plays: Protecting Creative Rights in the Publishing Business
November 19, 1998
Brad Bunnin, publishing consultant, addressed the Bay Area Editor's Forum on the topic of publishing contracts. He made it clear that negotiating contracts is becoming a more difficult process as publishing companies merge with media conglomerates, which want as many rights as they can get their hands on. Many of the disputes between independent contractors and publishing companies that arise today revolve around the issue of subsidiary rights for derivative goods, including, with the blossoming of the Internet, electronic rights. Moreover, before signing a contract, a complex legal document, independent contractors should have someone—a lawyer, a publishing consultant, or even a well-informed friend—look it over.
Bunnin first clarified the nature of contracts for us. "Contract law," he said, "is based on people's willingness to be clear with each other, write it down, and live up to what they put in writing." He went on to say that publishing contracts exist because writers possess copyrights. The U.S. Constitution bestows on authors the right to control reproduction of their material. So when an author and a publisher make a deal, the author is actually selling to the publisher part or all of his or her rights to control material. The contract defines the license that allows a publisher to publish a writer's material.
Generally speaking, publishing contracts define the following rights: (1) the primary right to publish the writer's material, (2) the right to publish the writer's material in a foreign language in the United States and/or abroad, (3) the right to adapt the writer's material to video, (4) the right to adapt the writer's material to theatrical form, (5) the right to adapt the writer's material to audio. The last four of these would be classified as subsidiary rights to produce derivative works. A great deal of money is being made nowadays through derivative works, and writers must be careful not to sign away these rights to publishers without due compensation.
Bunnin explained that there have been many cases recently of publishing companies trying to rewrite contracts. Publishers are doing this primarily because they did not foresee the Internet boom, books on demand, and some of the other new markets that have emerged in recent years. Often a publisher will want a writer to accept a smaller royalty than specified in the contract and will sometimes claim that unless the writer accepts the new figure, the "numbers will not work" and the whole project will have to be scrubbed.
In a case like this, it is very important to have someone take a look at the numbers to ascertain whether the publisher is being honest or is just trying to wiggle out of the original deal. In a court of law, the publisher would probably lose because a contract is a binding legal document. This is really what contracts are all about: "they are our feeble attempt to look into the future and protect both parties from unforeseen future events," says Bunnin, "and they are intended to keep one party from taking undue advantage of another."