Derivative Works in Publishing Contracts, Part Deux!

Last week we took a look at the meaning of "derivative works" and who owns the copyright on them.

This week we'll return to John Q. Penman's contract with Fictitious Publishing Entity and see what it has to say about derivative rights:

Derivative Works. The copyrights in the Work and all derivative works created by Author belong to Author exclusively and in perpetuity. The copyrights in derivative works based on the Work which this Agreement authorizes Publisher to create, including without limitation performance copyright in sound recordings and audiobook versions of the Work will, at the Publisher's option, be owned by the Publisher, it being understood that such registration does not affect the ownership of the copyright in the Work or derivative works based upon the Work and created by Author.

Let's take a closer look.

"Copyrights in the Work and all derivative works created by Author belong to Author exclusively and in perpetuity." 

This is good language. It means John owns both the work and all derivative works that John creates.

"The copyrights in derivative works based on the Work which this Agreement authorizes Publisher to create, including without limitation performance copyright in sound recordings and audiobook versions of the Work will, at the Publisher's option, be owned by the Publisher,"

At first glance, this looks very bad, because it gives the Publisher a copyright interest. If possible, John should get this part of the language removed.

That said, note that this language doesn't grant the Publisher any independent right to create derivative works - the Publisher's copyright interest is only in derivative works ... which this Agreement authorizes Publisher to create - meaning that if the contract doesn't state that the Publisher has a right to create derivative works, this grant of copyright gives the publisher...nothing.

The key, if the Publisher refuses to remove this language, is to read the contract carefully to see what, if any, rights the Publisher has to create derivative works. If the Publisher doesn't have any rights to create derivative works, then this language doesn't actually cause a problem.

The final verdict? Remove that clause if you can, but if the Publisher insists on keeping it, read the rest of the contract very carefully to see what actual risk the language creates. If none, this might not be the deal breaker it initially appears.

Posted by Susan Spann

Susan Spann is a California publishing attorney and the author of Claws of the Cat (Minotaur Books, July 16, 2013), the first novel in the Shinobi Mystery series featuring ninja detective Hiro Hattori.