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
It is so important a concept that the article is on the top of every
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)
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.
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
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
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
That is a terribly confusing situation and one that should be avoided if at all
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
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
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
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.
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
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.
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.
No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.