3.
Copyright.
This section contains two alternative clauses:
- The first is a typical clause that you will see in most trade publishing contracts.
- The second more clearly defines the publisher's obligation to register the author’s copyright with the U.S. Copyright Office. While no publisher has yet agreed to this language, we are urging authors and agents to insist that publishers include these terms in their standard publishing contracts to ensure that authors have the full range of legal protections against infringement. Read more about why we recommend this alternative clause here [LINK TK].
Standard clause:
Publisher shall register the copyright to the Work, if not previously registered as a published work, identifying Author as the claimant (the copyright owner), as well as the author of the Work, within 90 days of initial publication of the Work, and Author will be provided with a true and complete copy of the registration certificate when received by Publisher. Publisher will, and will cause each of its sublicensees to, place a copyright notice in Author's name in each and every copy of the published Work, as follows:
© [Author's name] [year of publication]
Recommended clause:
Publisher shall register the copyright in the Work, if not previously registered as a published work, by submitting a complete copyright application, the required number of deposit copies, and application fee to the U.S. Copyright Office within 60 days after the Work’s first publication. Upon submission of the complete application, Publisher shall provide written confirmation to Author or Author’s designated representative of the submission. If Publisher fails to comply, it may cure such breach by submitting the foregoing application materials and providing confirmation of such submission within 10 days after receiving notification of such failure from Author or Author’s designated representative, except that such cure period shall not extend beyond 75 days after the Work’s first publication. Publisher’s failure to comply with these terms shall constitute a material breach of this Agreement. If Author registers the Work after Publisher’s failure to do so under these terms, Publisher shall reimburse Author for all of Author’s costs, including hiring a service or attorney to assist in registering the Work. Such reimbursement shall be in addition to any compensatory or other damages for which Publisher may be liable.
The application shall identify Author as the copyright claimant and the author of the Work. Publisher shall provide Author with a true and complete copy of the registration certificate when received from the U.S. Copyright Office. Publisher will, and will cause each of its sublicensees to, place a copyright notice in Author’s name in each and every copy of the published Work, as follows:
© [Author's name] [year of publication]
This section confirms that you retain ownership of the copyright even though you have licensed to the publisher certain rights under the contract. Copyright adheres to an original work of authorship as soon as it is first fixed in tangible form (i.e., when, and as, you type [FG1] your manuscript). So long as the manuscript is not a "work made for hire" (see Section 2(d)), [FG2] the writer is the copyright owner unless and until the writer "assigns" or transfers the copyright to a third party.
For trade books, the author should never assign the copyright in the manuscript to the publisher, but only grant licenses to certain uses. Unfortunately, some academic presses insist on a full assignment of copyright, and they will not negotiate this point. The Authors Guild strenuously objects to this practice. There is typically no justifiable reason for the publisher to require ownership of the copyright. In such a case, try to negotiate a good out-of-print clause (see Section 10) that clearly reassigns rights and doesn't just terminate the grant. And remember that you can still get your rights back in 35–40 years under Section 203 of the Copyright Act.
This clause also requires the publisher to register the copyright with the Copyright Office in your name within three months of publication. This requirement is very important for full copyright protection. If the work is within three months of publication (or any time before the infringement), [FG3] the copyright owner is automatically entitled to recover statutory damages and attorneys' fees in cases of copyright infringement. Statutory damages are set by the court without you having to prove actual financial loss and can be as high as $150,000 per work infringed if the infringement was done willfully; for non-willful infringement, the statutory damages are between $750 and $30,000 per work infringed. Proving actual damages can be difficult and the actual losses often are too low to cover the cost of the lawsuit. Because federal litigation is so expensive, the ability to obtain statutory damages and attorneys' fees is often imperative for bringing a lawsuit.
Note that the date of registration is deemed the date a complete application for registration is filed with the Copyright Office.
Finally, this clause provides that the publisher will print a copyright notice bearing your name (as copyright owner) on all copies of the book, and it will include the same condition in its contracts with its licensees. Copyright notice is no longer required for works published in the U.S. after March 1, 1989, to receive full protection, but it aids in enforcing copyright and is standard practice. Copyright notice presumptively alerts infringers to the fact that they are infringing someone else's copyright, making it harder for them to justify the infringement; it also provides potential licensees with information on whom to contact for a license.