The Book Editor Agreement

 

Ivan Hoffman, B.A., J.D.

          If you are an author or a publisher contemplating using an independent contractor book editor to work on your or your author’s manuscript, there are a number of legal issues that you need to address in a written agreement with that editor.  If you are that independent contractor editor, you must face these same issues and it is in your best interest as well to reduce your understanding to a written agreement.  In any business arrangement, it is always best to have the complete arrangement between the parties expressed in a written agreement before any work is done and before any money is paid so that both sides know where they stand and confusion is reduced to the greatest extent possible.   Read “The Fundamental Principle Under the United States Copyright Law.”   It is so important a concept that the article is on the top of every index page. 

         This article applies to all editing arrangements, not merely to book editing.  But for the sake of simplicity, I will limit the discussion to books.

         The parties should have a written, signed agreement with each other that is sufficient to cover the varying complexities in the relationship.  When dealing with rights to intellectual property—and the manuscript is intellectual property—without having a valid, written and signed agreement, the author and publisher run the risk of seriously clouding and confusing ownership rights that deal with that intellectual property.  Without a written agreement, the author and publisher cannot acquire exclusive rights to the editor’s copyrightable contributions.  This may in turn impact severely upon the author’s or publisher’s ability not only to publish the book without claims from the editor, but may as well restrict or even prohibit the author’s or publisher’s ability to further exploit the rights the author or publisher may have to the book. (see further discussion below)

          The agreement between the author or publisher and the editor must spell out the detail about what the editor must do, how long the editor has to do what the editor agrees to do and other such issues.  Thus it is also to the editor’s advantage to have such a written agreement since that way the editor knows what the editor is to do and, perhaps more importantly, how much the editor is to be paid and when that payment is due.  But let me focus in this article solely on the issues dealing with the intellectual property rights of the parties. 

SOME OF THE ISSUES TO BE FACED  

          An editor may be entitled to what is known as a “compilation” copyright.   That is the copyright in and to the arrangement of the materials in the text and extends to that arrangement but not to the actual text.  So if an editor moves text around and re-arranges that text in a new manner, that arrangement may be subject to copyright protection.  

         The editor may also contribute original writing and that original writing may also be subject to copyright protection.   

          Therefore, one of the first issues to be faced is whether or not such contributions constitute work that is capable of being copyrighted. 

          Section 102 of the United States Copyright Act, states in part: 

(a) Copyright protection subsists, in accordance with this title, in original works of authorship... (emphasis added). 

          Should the work performed by the editor contain such original work of authorship (as described above or otherwise), the parties risk confusing their rights unless there is a written agreement explaining those rights.  The definition of “original works of authorship” is quite broad and the threshold for originality quite low.  This means that often contributions that seem quite small quantitatively may still be the subject of copyright protection on the part of the creator.  And if these contributions turn out to have some value standing alone, and no one can know that in advance, then without a valid, written and signed agreement, ownership rights to those contributions may be clouded.  What, for example, might be the legal rights if an editor had contributed only 3 short words but which became famous such as “Call me Ishmael?” 

         The next issue is that if such contributions are capable of copyright protection, the agreement must state who owns the rights to that material and in turn whether that party transfers those rights exclusively to another party.  The United States copyright law says that, absent a written, signed agreement transferring exclusive rights to copyrighted material, the creator owns all rights subject only to some unclear, non-exclusive set of rights that may pass to the author or publisher.  This means that the editor could own the rights to the copyrighted material contributed by the editor and the author or publisher would not have the exclusive right to use that material without a written agreement.  The book might then be owned in part by the editor and in part by the author.  That is a terribly confusing situation and one that should be avoided if at all possible.  This may actually prevent the author from entering into a publishing agreement since that agreement almost always requires the author to grant the publisher exclusive rights to the material.  It may prevent the author or publisher from exploiting the material since most licenses such as foreign publishing deals also require exclusive grants.  But without the written agreement, this can be the effect.  Read the numerous articles on my site under the general title “A Legal Nightmare: The Unwritten License.”  Click on “Articles for Writers and Publishers.” 

          Moreover, if the contributions of the editor and the author are sufficiently “indistinguishable” one from the other, meaning that the parties intended to have their seemingly separate contributions merged into a single manuscript, then the parties may be considered by the United States copyright law to be “joint authors.”  If they are deemed to be joint authors, then in effect the editor becomes the co-owner with the author in the rights to the entire book.  Thus, without a written agreement spelling out the rights of the parties, the author may unwittingly end up giving away an interest in the rights to the entire book!  Read “Joint Author Issues Under The Copyright Law.”  

HOW TO HANDLE THESE ISSUES 

          The editor’s contributions can perhaps be the subject of a work made for hire agreement since it is likely that the author “specially ordered and commissioned” the editor’s work, that the editor’s work may fall under one of the legally acceptable categories of work made for hire situations, and that the agreement is sufficient in language to qualify as a work made for hire.  But preparing a work made for hire agreement requires certain very specific language and you should read  “Work Made For Hire Agreements” on my site for more of the details.  But be sure and also read the other articles under the general title of “Work Made For Hire Agreements” as well as “The Stupidest Law Ever Enacted” on my site.  Click on “Articles for Writers and Publishers.” 

          The transfer of rights can also be in the form of an exclusive transfer but not as a work made for hire.  This can lead to rights of termination of transfer in the editor down the line.  Read “Terminations of Transfers.”  

           Under any circumstances, the agreement between the editor and the author or publisher must be sufficiently broad to include language transferring all the rights to the editor’s work exclusively to the author or publisher. 

          There are of course other variations on the theme of the rights of the parties.  They can agree that the editor will be paid more than a flat fee and perhaps receive some royalty.  There can be other clauses as well.  I have not intended this article to be exhaustive of all those possibilities but have wanted to merely emphasize some of the areas of concern that should be addressed. 

CONCLUSION 

          Authors, publishers and editors frequently approach their relationship without the benefit of a written agreement.  This is highly unwise.  In the event of claims (not just as between the author or publisher and editor but, as indicated above, as between the author or publisher and a third party to whom the author or publisher has represented and warranted about exclusive rights as well as other claims), any money “saved” by not having such an agreement will likely be dwarfed by the amounts spent to seek to resolve these claims. 

          Who would want to be in that situation?   It makes no sense to me.  Read “The Need For Vision,” “The Do It Yourself Publishing Lawyer” and “Hoffman-isms.”

Copyright 1997, 1999, 2018 Ivan Hoffman.  All Rights Reserved. 

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States laws but the laws of other countries may be different.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.

 


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