CHILDREN’S BOOKS PUBLISHING: Some Issues
IVAN HOFFMAN, B.A., J.D.
Publishing children’s books poses several issues that take on potentially added significance compared to when those same issues are presented within the scope of non-children’s book publishing.
What makes publishing children’s books so potentially valuable is that these books lend themselves to merchandising, cartoon, multimedia and trademark potentialities more so than do non-children’s books. Thus, these issues, as all other issues, must be addressed in a thorough, written agreement since no one can know, in advance, which book will become the next “Harry Potter” series of books or “Barney” character, with all the attendant merchandising deals such as pillow cases, motion pictures, cartoon series and so on. Failure to look with vision, failure to plan for success may result not in success for the publisher but in regret that someone else is reaping the substantial rewards of a “hit” book.
This article assumes that the contributions of the party or parties not the publisher are as to both text and illustrations including cover art. (If there is a separate cover artist, then a separate agreement has to be entered into. Read “The Cover Artist/Illustrator Contract.”) As you will see below, these elements can be contributed by either the same party or 2 or more separate parties. There can also be copyrightable contributions made by editors as well and these too should be covered in the same type but generally separate agreement to which this article refers since a publisher must acquire exclusive rights from an editor in the same manner. Read “The Book Editor Contract.” There may be other parties contributing protected materials and appropriately thorough agreements should be entered into with them as well. But I will limit my discussion to the above specific parties since that arises most often.
Further, references to the “agreement,” “contract” or to a “publishing agreement” can be to any form of publishing or other acquisition agreement by which rights are transferred from a creator to the publisher.
Editorial Note: This article is written from the point of view of a publisher and from that point of view, the article advocates that the Publisher own all rights. This does not mean that the article or the author is anti-artist. Not at all. Someone has to own the rights and there are no absolutes in terms of which party “should” have certain rights, receive certain income etc. There are no “standard” agreements when it comes to creativity. And there is no such concept as “fair” in deals such as this. What is “fair” to one side is “unfair” to another. As indicated below, just because one party owns the rights, the other party can negotiate to be paid on those rights. But it is up to each party, in the exercise of his or her or its personal responsibility, to negotiate agreements that are in that party’s interest.
Some of the Issues
There are many issues involved in any publishing agreement and it is not the purpose of this article to explore them all. I would like to focus instead on some but not all of the issues that are of particular importance in a publishing agreement for a children’s book.
The Grant of Rights. The creator of any copyrightable work, in this instance, the illustrations and/or text (including contributions made by editors), starts out owning all rights of copyright in that work. Thus, if the publisher is to acquire exclusive rights to the said illustrations/text, it can only be via a valid, written transfer agreement signed by the creator or creators. (This presumes that the relationship is not one of bona fide employment). Thus the scope of the granting language is all important. If the contract the publisher is using is more than a year or so old or if it is one copied from a form book or passed around by colleagues, it may not cover the relevant issues or not cover them with sufficient thoroughness and should be reviewed by an attorney and if necessary, adapted to take care of these and other issues. The recent cases of Rosetta Books as well as Tasini vs. New York Times speak to the use of older, uncertain contracts. Read “Electronic Rights: The Supreme Court’s Tasini Ruling.”
What none of the parties want is a situation in which the rights are not clearly stated or in which there is no sufficient written agreement covering the same. This creates a nightmare, both legally and from a marketing standpoint. To be avoided in all instances. Read “A Legal Nightmare: The Unwritten License.”
Furthermore, if the author, artist, illustrator or editor are separate individuals, then the publisher must either make separate deals with each and seek to make sure that the deals are the same for all those parties or to have one agreement by which the publisher acquires its rights, which agreement is entered into by the author, artist, illustrator or editor and all the provisions thereof made collectively and individually binding on all those parties. This requires of course that all granting parties make co-extensive grants.
As noted above, just because the publisher may end up by agreement owning all the rights does not mean that the author, artist, illustrator or editor cannot participate in the revenue derived from those rights. If those parties, having granted all rights to the publisher, also negotiate to be paid from the exploitation of those rights, then they can be protected in that regard. Keep in mind that the 2 provisions--the grant and getting paid from each aspect of the grant--are not “givens” and it is up to the granting party to make certain that both aspects are included in the agreement.
But it is very important to note that without the underlying grant to the publisher, the publisher does not acquire those exclusive rights (see the discussion above). In such an instance, any income derived from those non-granted rights will not have be paid to the publisher and as to which the publisher will not share. So it is up to the publisher to affirmatively acquire the rights or lose out. This has to be done with care and specificity since any uncertainty will likely be determined against the publisher, leaving the publisher not with income but with regret.
Ownership of the Copyright. Related to the issue of the grant of rights above is the issue of which party is going to own the right of copyright in and to that party’s contribution. Read “Who Shall Own the Copyright in a Book Publishing Agreement?” Often an uninformed publisher is tempted to call a relationship a work made for hire relationship and presume that that is the end of the matter. In fact, a work made for hire requires a number of specific conditions to be valid including but not limited to that the publisher must have “specially ordered and commissioned” the contribution. Thus, if a contributor has previously written the text and/or drawn the illustrations and then approaches a publisher, that relationship will not qualify as a work made for hire. Thus the contract has to be structured differently. Read the several articles on my site dealing with works made for hire. Click on “Articles for Writers and Publishers.” No matter which way the copyright ownership issues shakes out, it is important that the contract cover the rights of the parties inter se, i.e. between them. This is often a very overlooked set of provisions and should include issues about derivative works, restrictions on the use of the copyright, if appropriate and other similar and related issues.
Ownership of the Rights of Trademark. Issues relating to trademark rights in characters and the ability to register the same are beyond the scope of this article. What is important however, is that these rights be expressly covered in the publishing agreement and exclusive rights to the same clearly transferred to the publisher since the rights in trademark can be of extreme value in the marketplace and for a long, long time.
Revised Editions and Next Book Provisions. Related to the above issues is the always thorny issue about rights to revised works. Clearly a successful book begets further books in the series along with consequent issues related to the rights to those further books. The contract must deal with these issues in a through manner so that there is no confusion about what an author, artist, illustrator or editor can do in the future if he or she has granted certain rights to a publisher. If the publisher has multiple grants from individual author, artist, illustrator or editor, the resolution of these issues can become more difficult. Read “Co-Author Issues in Book Contracts” and “Next Book Provisions in Book Contracts” as well.
Internet Use. There are severe penalties for the failure to comply with the Children’s Online Privacy Protection Act (COPPA). If you have a web site that is subject to the requirements of that law, which seems apparent that you would if you are a children’s book publisher, you must comply with these rather stringent requirements. These full dimension of these issues is beyond the scope of this article. Read “The Children’s Online Privacy Protection Act” and “Verifiable Parental Consent Under COPPA.”
I am constantly amazed at how many publishers contend that they want to be successful but end up setting themselves up so that they can only fail. The writing and publishing of children’s books is one such instance. The way many publishers set up their “contracts” creates a situation where if the book is a failure they lose but if the book is the one in a hundred that is successful, they lose as well since they have failed to adequately acquire and preserve their contract and intellectual property rights. When a book is successful, you cannot count the number of claims that will come out of the woodwork and everyone runs to lawyers thereby causing the parties to spend thousands of dollars on attorneys fees, court costs, damages and the like. Thus the attempt at “saving” money turns out to be enormously expensive. Read “The Do It Yourself Publishing Lawyer.”
All that might have been avoided through the exercise of vision and planning for success. And through the use of thoroughly drafted agreements covering the many issues that can arise in a complex relationship.
There is no one that is going to protect you and your rights except you. And this applies to “you” whether you are a publisher, author, illustrator, artist or editor. Exercise your personal responsibility.
Read “The Need for Vision,” “What Business Are You In?,”“Private Laws” and “Set to Fail” on my site.
© 2002 Ivan Hoffman. All Rights Reserved.