Author Archives: Authors Alliance

Q&A with Dr. Elizabeth Vercoe on Terminating Transfers of Copyright

Posted October 20, 2020

Photograph of Elizabeth Vercoe — photograph courtesy of Dr. Elizabeth Vercoe

Called “one of the most inventive composers working in America today” by The Washington Post, Dr. Elizabeth Vercoe has been a composer at the St. Petersburg Spring Music Festival in Russia, the Cité Internationale des Arts in Paris, and the MacDowell Colony. Her music is published by Noteworthy Sheet Music, Certosa Verlag (Germany), and Arsis Press and is recorded on the Owl, Centaur, Navona and Capstone labels. We recently sat down with Dr. Vercoe for a Q&A about her efforts to terminate the transfer of copyright to six of her nine early musical compositions published by Arsis Press, including Herstory II (1982).

Authors Alliance: Can you share why you were motivated to explore the possibility of terminating the transfers of copyrights for your works? What problem did you hope to solve?

Dr. Elizabeth Vercoe: As a composer of nine pieces published by Arsis Press, I was appalled when the successor publisher (Empire Publishing Services) ceased filling orders for our music and gave no notice or explanation for the apparent demise of the business. Because I was also a former associate editor of Arsis, I felt some responsibility for keeping the other composers informed and helping them in any way I could. We were unable to make copies of our own work legally since the press owned our copyrights, and we were unable to enter into recording contracts and other agreements without the consent of Empire. Moreover, Empire continued receiving half of our performance royalties from ASCAP and BMI while doing nothing for us. We were angry and upset at the injustice and decided to investigate what we could do about the situation.

AuAll: What steps did you take to initiate the termination of transfer process? Are there resources that you found particularly helpful?

EV: Initially we consulted several copyright lawyers to see what options were open to us to retrieve our copyrights. We were told that the lawyers could negotiate with Empire or they could facilitate copyright terminations for work eligible under current copyright law. On discovering the expense of even minimal action to negotiate with Empire or file copyright terminations for us, we were grateful that one attorney referred us to the website rightsback.org as a starting point for doing the work ourselves. We also studied the instructions for terminations on the Copyright Office website, pooled our information, and began helping each other with the paperwork.

We also spent a day at the Library of Congress looking through the 25 boxes of records of Arsis Press. The records were preserved by the library since the press is of historical interest as the first publisher in the U.S. devoted to women’s concert music. We hoped to find a contract between Arsis Press and the successor owner enumerating the terms of agreement. Unfortunately, we found no contract, and BMI was clear that it was obligated to continue to send half of our performance royalties to Empire.

AuAll: Do you have advice for other creators considering terminating their transfers of copyright? Are there things that policymakers could do to make copyright work better for creators?

EV: As a relatively naïve graduate student, I knew little or nothing about the risk of publication by a small press when Arsis Press began publishing my music. Someone could have suggested an additional sentence in a contract requiring that copyrights revert to the author if the press ceased doing business. If we had done this, we would have had some protection if the press failed. But nobody told any of the 40 composers published by Arsis Press that we should request such language in our contracts. I don’t think the founder of Arsis Press thought about this either or she would have insisted upon it. Organizations for composers like the Society of Composers and the International Alliance for Women in Music could help their members by providing guidance about such matters as could BMI and ASCAP.

“Orphan works” live in limbo after a press fails. Apparently, this is a massive problem for composers, film makers, and authors throughout the world as well as in the U.S. The Copyright Office has issued an extensive report about the matter that suggests solutions, primarily in the form of changes to the copyright law. However, the proposed copyright laws are themselves in limbo since Congress has not enacted the needed reforms. A future project could be organizing composers and authors to complain to their representatives in Congress about inaction on the proposed bill.

AuAll: Is there anything that you wish you knew prior to signing your early publication contracts, or that you would do differently today?

EV: Of course, we wish we had known how to protect our rights before signing contracts. All of us are now very wary of such agreements, but it is too late for the 140 works published by Arsis Press. In the case of the dozen composers in the catalog who are deceased, we know of only a few beneficiaries to fight their copyright battles for them. All we can do is proceed with copyright terminations for those works published 35 year ago or less in order to take advantage of the brief 5-year window allowed for such action under current law. But the process is complex and few of the composers are sufficiently persistent to jump over the hurdles required to file for terminations.

It is worth mentioning that there are some publishers who do not take ownership of copyrights for music in the first place. I am published by two of them: Certosa Verlag in Germany and Noteworthy Sheet Music in the U.S. Again, these are small presses like Arsis Press, but anyone published by them retains copyright ownership.

AuAll: When you do regain your rights, what do you hope to do with your musical compositions?

EV: Once my Arsis copyrights revert to me, I will either assign the music to the American Composers Alliance or publish with a company that allows me to retain the copyrights to my music. The ACA also has a legacy program that continues to keep one’s music available into the distant future, so at age 79 that is an attractive possibility for me as well.

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We thank Dr. Vercoe for generously sharing her experiences and hope that her efforts inspire our members, readers, and allies to advocate for sound contract terms and to consider the options available—including termination of transfer and rights reversion—to ensure the long-term availability of their works. Authors can also consult the Authors Alliance/Creative Commons Termination of Transfer Tool at rightsback.org to learn more about termination of transfer.

For more about Dr. Vercoe’s experience with termination of transfers, we encourage readers to check out her article, The Perils of Publishing, in the Fall 2020 issue of the Journal of the International Alliance for Women in Music.

Authors Alliance Voices Concerns About the Copyright Small Claims Tribunal to Senate Committee

Posted September 30, 2020

U.S. Capitol — photo by Martin Falbisoner | CC BY-SA

Tomorrow, the Senate Judiciary Committee will consider S. 4632, the Online Content Policy Modernization Act, which would establish a small claims tribunal within the Copyright Office as an alternative to federal court for pursuing copyright claims. Authors Alliance has concerns with the provisions in the current draft.

As we’ve previously written, Authors Alliance supports reducing barriers to copyright enforcement for those with limited financial resources by providing a faster and cheaper avenue to remedies. Today, the high cost of litigation keeps many independent authors and other creators from enforcing their copyrights. A well-designed copyright small claims process could fix this but, unfortunately, the copyright small claims dispute provisions in S. 4632 invite abuse and pose a high likelihood of harm to authors as both claimants and respondents in the proposed tribunal.

To address problems with the current draft of S. 4632, we urge the Committee to:

Limit statutory damages to cases where it is impossible or cost prohibitive to prove actual damages and develop principles to guide awards of statutory damages;
Remove restrictions on the grounds for judicial review of the tribunal’s decisions;
Include additional safeguards to deter copyright trolls and preserve the utility of the small claims tribunal for independent authors and creators;
Require potential respondents to affirmatively opt-in to the small claims process; and
Narrow the jurisdiction of the small claims tribunal.

Read more about these recommendations in our letter to the Committee.

Independent authors and creators should have access to a low cost way to enforce their copyrights and vindicate their right to use others’ copyrighted works in lawful ways. We urge the Committee to modify the bill to better serve the creators it is intended to benefit.

Authors Alliance Congratulates Shira Perlmutter, New Register of Copyrights

Posted September 23, 2020

photo by Carol Highsmith | public domain

Authors Alliance congratulates Shira Perlmutter on her appointment as the Register of Copyrights and director of the U.S. Copyright Office.

Earlier this year, in response to the Librarian of Congress’ request for public input, Authors Alliance emphasized the importance of appointing a Register who is willing to take into account the diversity of viewpoints among creative communities. Ms. Perlmutter’s record gives us confidence that she will do just that by bringing an open-minded and balanced approach to her new role.

While at the U.S. Patent and Trademark Office, Ms. Perlmutter co-led a task force charged with consulting a wide range of stakeholders and drafting a White Paper on Remixes, First Sale, and Statutory Damages. The white paper recognized the importance of fair use in allowing remix culture to thrive, recommended amendments to the Copyright Act to address concerns with excessive and inconsistent statutory damages awards, and acknowledged library concerns with e-book licensing agreements. Ms. Perlmutter also co-led the U.S. delegation that negotiated the Marrakesh Treaty, which created a set of mandatory limitations and exceptions for the benefit of blind, visually impaired, and otherwise print disabled readers, helping authors’ works to reach a wider audience around the world in accessible forms. As a supporter of the importance of limitations and exceptions, statutory damages reform, and library lending practices, Authors Alliance is heartened that Ms. Perlmutter’s record reflects a nuanced consideration of stakeholder input.

We look forward to working with Ms. Perlmutter to promote a fair and balanced copyright ecosystem and to supporting the Office’s plans to modernize its registration and recordation infrastructure.

Appeals Court Affirms that Facts and “Asserted Truths” Are Not Protected by Copyright

Posted September 22, 2020

“Jersey Boys @ August Wilson Theatre on Broadway” by BroadwayTour.net is licensed under CC BY-SA 2.0

A recent decision from the Ninth Circuit Court of Appeals, Corbello v. Valli, may finally put to bed over a decade of litigation over alleged copyright infringement in the hit Broadway musical, Jersey Boys. The play depicts the history of the musical quartet, Four Seasons, which rose to prominence in the 1960s. The Ninth Circuit held that historical facts—even those which an author later claims are untrue—are not entitled to copyright protection, and cannot form the basis of a successful copyright infringement claim. The decision provides substantial clarity for authors wishing to use historical facts from other works in their own later works, and affirms that facts are not copyrightable—full stop.

Background

The case concerned several alleged similarities between Jersey Boys and an unpublished autobiography written by Four Seasons member Tommy DeVito and a ghostwriter, Rex Woodward. The autobiography purported to be a “straightforward historical account,” and describes itself at the outset as the “complete and truthful chronicle of the Four Seasons,” narrated by DeVito. The work was completed in 1991, but Woodward died shortly thereafter, and DeVito and Donna Corbello—Woodward’s widow and the plaintiff in the case—were unable to find a publisher for the work.

In 2005, Jersey Boys debuted on Broadway, where it ran for 12 years. The musical also toured North America and the United Kingdom several times and won four Tony awards—by all accounts a huge success. Corbello believed that the success of Jersey Boys could lead to increased interest in the band, and in 2007, sought to confirm the copyright registration for the unpublished autobiography, but discovered that the copyright for the work had been erroneously registered in DeVito’s name only. After re-registering the copyright for the autobiography in both authors’ names, Corbello learned that the play’s writers were given access to the work to use in their research.

In 2007, Corbello sued DeVito for breach of contract, various forms of copyright infringement, equitable accounting, and other causes of action. After multiple proceedings, the case proceeded to trial, where the jury found that Jersey Boys infringed the unpublished autobiography and that 10% of the play’s success was attributable to the autobiography. However, the district court subsequently found that Jersey Boys’ use of the copyrightable portions of the autobiography was fair use—a doctrine which allows creators to use brief portions of copyrighted works without permission or payment for certain purposes, such as criticism, news reporting, or parody. Unsatisfied with this finding, Corbello appealed to the Ninth Circuit, which heard the case in June 2019.

The Decision

In a decision by Circuit Judge Marsha Berzon, the court rejected Corbello’s argument that the similarities between the Jersey Boys and the autobiography infringed Corbello’s copyright in the autobiography, overturning the jury’s finding of infringement altogether without discussing whether fair use would have applied. This was because each of the elements that the Jersey Boys creators took from the autobiography were historical events and facts, which are not protected by copyright—a basic tenet of copyright law.

The court examined in detail each of the alleged similarities between the autobiography and the play—including certain dialogue, origins of Four Seasons songs, and the occurrence of a particularly raucous party—and concluded that the similarities were due to the use of the same historical facts in both works. In some cases, the similarity was even based on a well-known event that DeVito had recounted elsewhere, such as a staged murder in one of the band member’s cars. The court concluded that each similarity between the two works was based on historical facts as well as shared common phrases and what are known scènes-à-faire—ideas and scenes that are standard in the treatment of a certain topic, such as a shoot-out in a western film.

“Asserted Truths”

Judge Berzon rejected Corbello’s argument that because some of the facts Jersey Boys took from the autobiography were apparently fabricated by DeVito, those should be entitled to copyright protection as non-factual creative expression. In what it called the “asserted truths doctrine” (known as “copyright estoppel” in other jurisdictions), the court stated that where a text represents itself as historically accurate—and therefore factual in nature—the copyright holder cannot later claim that the work was fictionalized in order to obtain copyright protection.

The court examined both the text of the autobiography and the manner in which it was submitted to publishers and found it was represented as fact: the work explicitly represented itself as factual, and pitch letters emphasized that the autobiography would disclose “the truth” about several events and reveal “the secret past that the performers successfully hid for almost three decades.” The fact that Corbello now claimed that some elements of the autobiography were fictionalized or inaccurate and that these same elements were present in the play did not change the court’s analysis: what matters is how the text is presented, not how it is later characterized by the copyright holder.

Finally, the court rejected the argument that the “asserted truth doctrine” did not apply to an unpublished work, finding that regardless of whether the audience for the work is “a few actual readers” (for unpublished works) or “the general public,” the representations of truthfulness determine the factual nature of the work for purposes of copyright protection. It is thus the apparent nature of the work—in this case, a factual autobiography—and not whether it is in fact fully accurate or factual, that determines whether it is entitled to copyright protection, or unprotected as factual in nature.

Implications for Authors

This decision clarifies the bounds of unprotected facts under copyright law and simplifies the process a court must undertake to determine whether allegedly infringing uses are factual in nature, or events recounted actually happened—it need only look to the work itself to see if it represents itself as factual. It also underscores the important point that facts are not protected by copyright law, and makes it easier for creators to use facts from other works in their own works without fear of copyright liability. The decision serves as an obstacle for those who seek to bring copyright infringement suits based solely on factual information, strengthening protections for authors who seek to use facts present in copyrighted works to contribute knowledge and scholarship to their communities. It also makes clear that these creators will not be held liable for using factual information from other works that later turns out to be untrue, further easing the threat of copyright liability when nonfiction works are relied upon as accurate.

Authors Alliance Welcomes Staff Attorney Rachel Brooke

Posted September 16, 2020

We are thrilled to announce that Rachel Brooke has joined Authors Alliance in the role of staff attorney.

Rachel Brooke comes to Authors Alliance from The Center for Investigative Reporting, where she served as the inaugural First Amendment Fellow. In this role, she appealed and litigated Freedom of Information Act requests, advised on access-related issues, and provided other legal support to a bustling newsroom. Prior to attending law school, she worked as a literary agent in a small New York City agency.

Rachel holds a J.D. from NYU School of Law and is licensed to practice law in California.

“I’m excited to join the team at Authors Alliance and use my legal skills and publishing background to support authors and advocate for policies that balance knowledge-sharing and the enjoyment of rights,” says Rachel.

Rachel’s passion for serving authors will be a tremendous boon as we advance our mission by continuing to develop educational resources and advocating on behalf of authors who write to be read. We look forward to introducing Rachel to the Authors Alliance community!

Authors Alliance Petitions for New Exemption to Section 1201 of the DMCA to enable Text and Data Mining Research

Posted September 8, 2020

Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, filed a petition with the Copyright Office for a new three-year exemption to the DMCA as part of the Copyright Office’s eighth triennial rulemaking process. Our proposed exemption would allow researchers to bypass DRM measures in order to conduct text and data mining research on both literary works that are published electronically and motion pictures. Further details can be found in the full text of the petition, available here.

Text and data mining allows researchers and others to gain new insights into language and culture, scientific inquiry, and civic participation. For example, text and data mining can be used to examine the evolution of language over time or to identify important but overlooked findings in scientific papers.

While the possibilities of text and data mining are great, researchers face limitations in their ability to use the technique. They must either rely on collections of works created by others, which may be missing important, relevant works, or they must build their own collections, a prohibitively time-consuming process in which researchers manually scan printed books or capture video playback in real time.

Authors Alliance believes that researchers building their own collections of works should be able to bypass DRM measures to extract data directly from sources such as eBooks and DVDs. The DMCA prohibits such circumvention, even if the intended use would not infringe anyone’s intellectual property rights. If this exemption is granted, researchers will be empowered to build relevant collections and conduct this important research.

How you can help

Historically, the Copyright Office has scrutinized the factual record when deciding what exemptions ought to be granted. Assuming the Copyright Office considers our exemption request, we will need to make a more detailed submission to the Copyright Office later this year that fully sets out the legal and factual basis for the exemption. If your research has been impacted by the inability to access electronically published literary works or motion pictures, we want to hear from you. Please reach out to us at info@authorsalliance.org and share your story.

Authors Alliance is grateful to Clinic students Jason Francis and Alistair McIntyre, supervised by Clinic Director Catherine Crump and Teaching Fellow Gabrielle Daley, at the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law for their assistance filing this petition and for this blog post.

Shaping Your Publication Contract to Meet Your Goals: Part 2

Posted September 1, 2020

Book publication contracts deserve careful attention because their terms control the rights and obligations of authors and publishers for the life of the relationship between the parties, which can potentially last for decades. Our guide to Understanding and Negotiating Book Publication Contracts helps authors to understand common clauses in publication contracts, recognize how the terms might affect their goals for their books, and negotiate for author-friendly variations of those terms.

In this two-part series, we apply the lessons from our guide to real-life contract terms and illustrate how authors can consider the implications of contract terms and formulate author-friendly variations that advance their interests. This second post covers options, non-competes, the look and feel of a work, and assignment of the agreement. To read the first post addressing grant of rights clauses, subsidiary rights, and rights reversion, click here.

Future Works: Options

Sample Term: “Author agrees that it will offer Publisher the first right to publish Author’s next work […] on the same terms and conditions as those contained herein […].”

Why it could be problematic: The term above could be problematic because it doesn’t give the author the opportunity to decline the publisher’s offer, purporting to lock the author into working with the publisher on his next book. It also could be problematic because it says that the second book’s contract will have the same terms as the first book’s contract. This could be bad for an author whose first book is wildly successful and who may attract an offer of higher royalties for the second book, but must accept the royalty rates agreed upon in the contract for the first book. (Of course, the opposite could be true: the performance of an author’s first book could mean that the terms offered for a second deal may be lower than those offered for the original deal: But this clause doesn’t help with that situation, either, as it gives the publisher the right but not the obligation to publish the author’s next work.)

How to make it better: Options clauses can be softened in a number of ways. For example, authors can limit the definition of the “next work” for which the publisher’s option applies to something closely related to the original work (such as the next book in a series), and authors can even include a right to refuse the publisher’s offer. For more information on options clauses, see pages 131-134 of Understanding and Negotiating Book Publication Contracts.

Future Works: Non-Competes

Sample Term: “The Author agrees that during the term of this Agreement the Author will not, without the Publisher’s prior written consent, participate in the preparation or publication of, or otherwise be interested in or connected with matter that may, in the Publisher’s judgment, conflict or compete with the sale of the Work.”

Why it could be problematic: “Non-compete” clauses can be problematic because they can prevent the author from publishing any books that are of a similar character, ignoring that some authors may write exclusively on a niche topic, for example, because it’s their area of study as a scholar. This term is especially concerning because it explicitly leaves the decision of whether another book by an author will compete with the contracted book at the complete discretion of the publisher.

How to make it better: Ideally, an author will avoid agreeing to a non-compete clause in their contract at all. But publishers may feel strongly about protecting their investment in publishing the author’s book, and don’t want sales to be undermined by competing books. This term could be made better by instead using the phrase, “may reasonably be expected to interfere with the sale of the work” instead of being at the publisher’s sole discretion. And as the term of the agreement can be for a very long time, another improvement is to put a time limit for how long the author must refrain from publishing competing works, such as for one year after the contracted book’s publication. For more information on non-compete clauses, see pages 137-141 of Understanding and Negotiating Book Publication Contracts.

Look and Feel

Sample Term: “The [Publisher] shall have entire control of such production and publication in all forms and media. The paper, printing, binding, title, design, jacket and/or cover […] shall be in the [Publisher’s] sole discretion.”

Why it could be problematic: Typically, authors hand over the manuscript to the publisher and the publisher takes care of the “business” end of actually producing, distributing, and helping with the marketing of the book. However, some authors may want to have at least some input over the “look and feel” of their book. The term above gives total control to the publisher, regardless of how the author may feel about the publisher’s decisions.

How to make it better: If an author is concerned about having no say whatsoever in the look and feel of her book, she can negotiate for the publisher to agree to at least consult with her to get her opinions, or even get a right of approval about things like the design, jacket, and cover of her book. For example, if the publisher presents a book cover that the author loathes, the author can express that opinion and maybe veto the cover. That said, it is important for authors to remember that a publishers’ business is to sell books, and that publishers rely on their extensive experience in how to best accomplish that goal. To learn more about negotiation options for the look and feel of a book, review pages 153-57 of Understanding and Negotiating Book Publication Contracts.

Assignment of Agreement

Sample Term: “The Publisher shall have the right, without approval of the Author, to assign this Agreement.”

Why it could be problematic: Assignment is when a party to the contract (here, the publisher) gives all of their rights and obligations in the contract to someone else. Typically, publication contracts restrict an author’s ability to assign a contract without the publisher’s permission. This is unsurprising—after all, authors are individual people with particular skills, styles, and ideas, and the publisher contracted to work with that specific author. The potential problem with the term above is that the publisher can assign the contract without the author’s approval, meaning that the author has no influence whatsoever on who a future publisher may be. If the author chose the publisher because it’s prestigious, for example, but the publisher wants to assign the contract to a less prestigious publishing house, then the author will probably want to veto the transfer. But the contract says the publisher can assign the agreement no matter how the author feels.

How to make the term better: Ideally, the term will say that the publisher cannot assign the agreement without the consent of the author, though it is likely that the publisher will insist that consent cannot be unreasonably withheld. But this still gives the author the opportunity to consider the deal and the ability to reject the assignment for valid reasons, and balances control because the author must have a reasonable justification for vetoing an assignment. To learn more, check out pages 244-49 of Understanding and Negotiating Book Publication Contracts.

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The examples of covered in this series are just that—examples. Every contract looks a little different, depending on the kind of publisher and the kind of book. While this two-part series on book publication contracts has covered some of the most common terms used in contracts, there are many more that may appear, such as outlining royalty rates or marketing terms. For a deeper dive into contract terms and options for negotiation, be sure to check out Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts.

Authors Alliance is grateful to Diana Buck, Copyright Intern, for researching and drafting this post.

Alison Mudditt and MacKenzie Smith Join the Authors Alliance Board of Directors

Posted August 25, 2020

Authors Alliance is pleased to welcome Alison Mudditt and MacKenzie Smith to our Board of Directors. Alison and MacKenzie join Carla Hesse, Thomas Leonard, Jeffrey MacKie-Mason, Pamela Samuelson, and Molly Van Houweling in guiding the strategic decisions and activities of Authors Alliance.

Alison Mudditt is the CEO of the Public Library of Science (PLOS), where her primary role is to ensure PLOS’s continuous innovation, bold leadership, and mission-driven differentiation in the field of scientific communication. Prior to PLOS, Alison served as Director of the University of California Press where she ushered in new strategies to lead the company into the digital age, including the innovative journal and monograph Open Access programs Collabra and Luminos. Alison’s 30 years in the publishing industry also include leadership positions at SAGE Publications, Blackwell Publishers, and Taylor & Francis.

“The Authors Alliance has been doing critical work at both a policy and a pragmatic level to help authors share their works widely to benefit us all,” says Mudditt. “I’m delighted to be joining the Board and supporting their mission at a time when the importance of open and equitable access to knowledge and creativity couldn’t be more important.”

MacKenzie Smith is the University Librarian and Vice Provost of Digital Scholarship at UC Davis. As one of the nation’s leading experts in digital libraries, MacKenzie has defined and implemented a strategic framework and organizational design that integrates digital resources and information technology with traditional library services to better serve the UC Davis academic community. Prior to her role at UC Davis, MacKenzie spent nearly three decades on the East Coast working at the libraries of Harvard University and the Massachusetts Institute of Technology.

“Publishing is a very complex business that is changing rapidly in the digital age so it’s critical for academic authors to have a voice,” notes Smith. “I’m delighted to work with the Authors Alliance on these issues, from the perspective of academic research libraries that are also experiencing a rapid shift to digital. The Authors Alliance is an important ally in ensuring that publishing and scholarly communication continue to be effective for research and education.”

Alison and MacKenzie’s extensive knowledge and experience in scholarly communication, publishing, and authorship for the public good will be a tremendous asset to the Authors Alliance Board. We look forward to working with Alison and MacKenzie to advance our mission.

Shaping Your Publication Contract to Meet Your Goals: Part 1

Posted August 18, 2020

In this two-part blog series, we apply the lessons from our guide to real-life contract terms and illustrate how authors can consider the implications of contract terms and formulate author-friendly variations that advance their interests. The first post addresses grant of rights clauses, subsidiary rights, and rights reversion. The second post will cover options, non-competes, the look and feel of a work, and assignment of the agreement.

Grant of Rights

Sample Term: “The Author hereby assigns to the Publisher the copyright and all the exclusive rights comprised in the copyright in the Work and all revisions thereof […] during the full term of copyright […] with exclusive authority to dispose of said rights in all countries and in all languages […].”

Why it could be problematic: When an author writes something original and fixes it in a tangible medium, she typically automatically has copyright ownership in the work. Authors should think long and hard about transferring copyright ownership for the life of copyright as they may come to regret this if, for example, their work falls out of print or the rights are not being actively used. The sample “grant of rights” term above hands total ownership and control of the copyright to the publisher, to be exploited by the publisher at its sole discretion for the life of copyright (which currently lasts for the life of the author plus 70 years). Essentially, unless the author regains her rights (more on rights reversion below), the author will not have a say in whether and how the work is made available and used.

How to make it better: Many authors prefer not to turn over ownership of the copyright to the publisher at all. Instead, the author may try to negotiate for a limited term grant, or to give the publisher a nonexclusive license. A nonexclusive license means that the author grants the publisher the ability to do certain activities (such as make copies of the book and distribute them), but the author will still have the ability to allow other publishers to do the same through similar nonexclusive licenses, or even to do those activities on her own. Even if a publisher does not agree to a limited term grant or a nonexclusive license, authors have many options to negotiate to make the grant of rights more nuanced, such as by limiting the geographic scope, including “use it or lose it” clauses, and requesting revert-back clauses. The grant of rights clause can be modified in myriad ways; to learn more, take a look at pages 44-73 of Understanding and Negotiating Book Publication Contracts.

Subsidiary Rights

Sample Term: “The Author grants to the Publisher full and exclusive right to act as his or her agent in disposing of the following rights and licenses: reprint, in full or in part; book club; serialization; dramatic, operatic, and musical adaptation; radio and television broadcasting; mechanical or electronic reproduction; microfilming and similar techniques; filmstrip production; motion picture and allied rights; and adaptations for commercial use.”

Why it could be problematic: Subsidiary rights are rights that arise from your copyright being used in specific contexts, such as for a movie adaptation or in audiobook form. The term above is especially problematic when you put it in context: This particular clause was found in a contract for a textbook. Is a textbook publisher realistically going to make or license an opera based on an author’s textbook? Authors should be skeptical of contracts that ask for subsidiary rights that the publisher really doesn’t need and is unlikely to exploit.

How to make it better: There’s no one clear way to make a subsidiary rights clause better. Instead, an author should consider and discuss with the publisher what subsidiary rights they each hope to realistically exploit. For example, if a publisher has no ties to the movie industry, but the author or his agent does, then the author could advocate to retain the rights to audiovisual works because the author can actually pursue the goal of getting a movie made. Authors can also limit the duration of these rights, ask for a license-back, or insert “use it lose it” provisions. To learn more about subsidiary rights, review pages 76-94 of Understanding and Negotiating Book Publication Contracts.

Rights Reversion

Sample Term 1: “If the Work (and all conversions, adaptations, ancillaries, derivations and portions thereof) has been declared out of print by the Publisher in the United States, the Publisher may, but shall not be obligated to, offer to reversion rights to the Work to the Author.”

Sample Term 2: “In case Publisher fails to keep the work in print (and for all purposes of this paragraph a Work shall be considered to be in print if it is on sale by Publisher in any edition in any venue, storefront or online, paper or digital […] then this Agreement shall terminate with respect to the Work and all of the rights granted to Publisher with respect to the Work shall revert to Author.”

Why it could be problematic: Reversion rights are important because they give an author the ability to regain control of her book from the publisher if certain conditions are met, such as sales or revenue dropping below a certain threshold or if the book falls out of print. One reason Term 1 is problematic because it leaves the decision of whether to return rights to the author in the sole discretion of the publisher: Even if the book is out of print, the author cannot trigger rights reversion unless the publisher agrees. Term 2 is problematic because the availability of digital versions counts as keeping a book “in print,” it’s possible that the book will never be declared “out of print” if the publisher makes an electronic copy available, even if it hasn’t been selling any copies.

How to make it better: Reversion rights should not be left entirely to the publisher’s discretion; instead, it is better for clauses to include a clear trigger for an author’s right to revert, such as a definition of “out of print” that is tied to concrete terms, like a minimum number of sales or revenue in a specified period. Additionally, it is preferable to eliminate the mere availability of electronic copies as sufficient for a book to be “in print;” again, it is better to link the definition of “in print” to a sales or revenue threshold, for example, rather than the mere availability in any form. To learn more about rights reversion clauses, read pages 231-43 of Understanding and Negotiating Book Publication Contracts.

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The examples of covered in this series are just that—examples. Every contract looks a little different, depending on the kind of publisher and the kind of book. Contracts will inevitably have many more clauses that aren’t covered in this series, such as outlining royalty rates or marketing terms. For a deeper dive into contract terms and options for negotiation, be sure to check out Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts.

Authors Alliance is grateful to Diana Buck, Copyright Intern, for researching and drafting this post.

Recap: PIJIP Webinars on Evaluating, Authoring, and Adapting Open Educational Resources

Posted August 11, 2020

Authors Alliance thanks Diana Buck, Copyright Intern, for this post.

When universities across the United States moved to online learning in the spring of 2020 due to the COVID-19 pandemic, many students and teachers were left in a difficult position. Some students did not have access to textbooks and other library materials that they relied upon for classes, and teachers had to find new ways to interact online and maintain engagement in class. American University Washington College of Law’s Program on Information Justice and Intellectual Property (“PIJIP”), recognizing teachers’ need to find adaptable, resilient, and even digital education materials for fall 2020 classes, created a webinar series to inform educators about the possibility of using or creating open educational resources (“OER”). The webinar series is broken into two parts: part one addresses finding and evaluating OER for use in classes, while part two covers how to create and publish OER.

In part one, a range of guest speakers outline the larger context of the importance of OER beyond the pandemic as an alternative to traditional textbooks and publishers’ online inclusive access deals. OER are valuable resources because they provide flexible alternative to educational materials made available under default copyright terms, which can prevent people from accessing, sharing, or adapting materials. OER’s flexibility comes from the fact that almost anything can be OER, from textbooks to slideshows to test banks, and creators can choose how users are allowed to interact with the materials by applying Creative Commons licenses. OER allows teachers to meet students’ needs in a more personalized way without requiring them to spend money on educational materials that won’t be utilized. Additionally, OER creates greater access to education by putting all students on equal footing to start class, as opposed to commercial resources which some students may not be able to afford or have a difficult time procuring.

After explaining the strengths of OER, part one of the series addresses potential resources for educators to build an OER-based curriculum, such as SPARC, Open Textbook Network, and Rebus Community. When choosing OER, educators should think about whether the OER complies with campus policies, how much students will have to pay, formatting choices, and limits on printing or copy-and-paste features. The speakers encourage teachers to utilize their campus librarians rather than immediately turning to the wider internet. The idea of OER is not to reinvent the wheel by creating all new materials or feeling forced to find a multitude of resources that somehow need to be pulled together in a comprehensive way, but to find a few good base sources and then edit as needed to fit the teacher’s learning goals for the class.

Part two of the webinar series addresses how educators can begin to create and share their own OER. Taking a practical approach, the speakers discuss how a creator should think about a timeline, potentially working with co-authors, and finding other people to help in the process such as copy editors, librarians, or even students. One example given is a Spanish language professor who would write a chapter of her OER textbook, present it to her students as part of the class curriculum, and then gather feedback. She then incorporated that feedback into her revised textbook in the summer, when classes were over and she had more time to create the finished product. The webinar also reminds creators to remember copyright laws and a potential fair use exception in materials they draw upon. Even if the source materials aren’t OER, teachers may be able to use them anyway.

To learn more, watch part one and part two of the OER webinar series. A full list of PIJIP’s webinars can be found here.