Pub Rants

A Very Nice Literary Agent Indulges in Polite Rants About Queries, Writers, and the Publishing Industry

By Far The Biggest Issue

STATUS: It gently snowed all day—which made Anita and I feel quite cozy here at the office.

What’s playing on the XM or iPod right now? BLUE SKIES by Tom Waits

In the new Macmillan contract is clause 6. (b) Copyright on Derivative Works. To state bluntly, this clause gives the Publisher the right to create “derivative works” based on the work they are buying from the author. And to add insult to injury, the publisher owns the copyright to any of these “new works.”

Eyebrow raise.

Yes, it is as bad as what you are thinking it means.

First, this is actually in direct contradiction to US copyright law and can’t be legally enforce but hey, what do I know.

Second, no way an author can sign a contract without amending or deleting this clause although I know some poor soul is going it alone and will end up doing just that.

For goodness sake, at the very least, get in touch with the Authors Guild before doing anything so detrimental to your intellectual property rights.

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41 Responses

  1. B. A. Binns said:

    Gently snowing, how cool is that, I just got out from under 2 feet. And this contract clause sounds almost as scary, it sounds like Macmillan is saying “give me your hard work and I can do anything I please with it.” – Please say I’m wrong.

    I hope it’s not enforcable and that even authors desperate to be published don’t accept it as is.

  2. Amy said:

    That’s just shameful! That’s like taking a photographer’s work and claiming the copyright because you painted a mustache and glasses on the subject!

  3. LupLun said:

    Hmm. Perhaps this was the other shoe dropping? They made the contract longer and more complicated to conceal their shenanigans?

    For what it’s worth, I’ve heard that you can actually sell the rights to make derivative works, same as normal rights. So it’s not illegal — it’s just a sleazeball maneuver.

    Also, giving them the benefit of the doubt: maybe legal was ordered to extend their contract boilerplate to cover e-book versions, and the intern who got the job of re-writing it used some fancy legal language without knowing what it meant?

    Not that it matters. Whether their amoral or incompetent, the reasonable response is the same: send it back to them with a note saying “Um, WTF?”

    Blowing the whistle on your blog is unnecessary, but much appreciated regardless.

  4. Anonymous said:

    Kristin, can agent negotiate that clause out of the contract for his/her client?

    Thanks for bringing this up!!!

  5. Eric Riback said:

    There is good faith and bad faith. In good faith, you would draft a boilerplate that is to your favor, but within the bounds of generally accepted rights. This one is bad faith. Trying to slide one by the author (and agent). As you say, it contradicts copyright law and all that is fair. But if the victim who agrees to it doesn’t know that, what difference will it make?

  6. Abby Minard said:

    Wow, there are so many “little” things in the contracts that I wouldn’t have a clue about if I went it alone. They’d turn in to big huge “things” as soon as I signed my life away. As always, thanks for the info!

  7. Simon Hay Soul Healer said:

    Is this common? I’m appalled. We’re talking about a pretty big publisher. Does this make you not want to deal with them, and do you have other options for your clients? Thanks for informing us.

  8. Anonymous said:

    “Derivative works” is defined in 6(b) as “any derivative works based on the Work that this Agreement authorizes the Publisher to create or to authorize others to create.”

    The boilerplate in section 4 includes pretty much every kind of subsidiary right, and these can be negotiated individually and included in the grant of rights or reserved by the author.

    My reading of the contract is that 6(b) gives the Publisher the copyright for derivative works authorized under section 4 (such as an audio recording or a graphic-novel adaptation), but does not give them any additional rights to create derivative works that aren’t expressly authorized in the author’s contract.

    Do you read the clause differently?

  9. LupLun said:

    I believe “derivative works”, in terms of copyright law, is commonly understood to mean sequels, spin-offs, adaptations, and so forth. Stuff that you don’t want the publisher to be able to sanction without giving the author a cut.

  10. Paul said:

    Wow. See, this is why I want an agent, rather than trying to go it alone. It’s good to have someone watching out for you.

    I hope you can help your client(s) with that clause.

  11. Aimee Laine said:

    I’d cry ‘copyright infringement’ right away! Wow. As a professional photographer, I’m acutely aware of these kinds of things and for something like that to ‘show’ up? Boggles my mind. Wow. Wow. Wow. 🙁 Thank you for posting!

  12. L. Scribe Harris said:

    First: this is why it’s so important for content providers to read contracts, and to know what is common and uncommong in them. As Paul (above) said, this is why I would like to have an agent–to help me understand what is normal in a contract and what isn’t, and to keep me from getting (pardon my American) screwed.

  13. Shannon Chamberlain said:

    The objectionable part is that the publisher thinks that it should own these “derivative works,” not the derivative works themselves. If it was the derivative works, you’d be outlawing, among other things, fanfiction, compendia, concordances, etc. Those things seem to simply increase excitement around a book or its universe, but never replace the actual book itself. But the way that this is written now, I could see some clever publisher claiming that it owns a fanfiction site.

  14. Anonymous said:

    Anonymous at 6:38 pm– not only the agent, but the writer herself, working without an agent, can negotiate it out.

    I’ve negotiated seven contracts without an agent. You need to read them very carefully. Most things, in my experience, can be changed simply by asking. But if you don’t read carefully, you won’t know to ask.

  15. Cori said:

    As an author waiting to be published, I’m not very demanding. I know I won’t make much money. I know I’ll work like a dog. But at the end of the day, those characters and novels are mine. I’d rather give them away for free than allow a publisher and their ghostwriters to write the series without me. If that’s what that clause means, it’s a “mountain worth dying on.”

  16. Cynthia Lee said:

    I flashed for a minute on James Frey. Is that his name? That guy who wrote the fictional non-fiction memoir? I have also blocked the name of his reprehensible writer-for-hire company.

    How awful.

  17. Christopher said:

    Just a Canadian law student chiming in:

    US copyright law is unusual in that it explicitly covers derivative works. Title 17 of the US Code contains a definition of derivative works (in §101) that includes any form in which a work may be “recast, transformed, or adapted”, including “elaborations”

    Most importantly, §106(2) grants the owner of copyright the exclusive right “to prepare derivative works based upon the copyrighted work”. Like the other exclusive rights enumerated in §106 (including the basic right of copyright – the right to make copies), this right can be sold to others.

    Now, I may be missing something here, but as far as I know it is completely legal to assign the right to create derivative works. Indeed, I believe that in some fields (such as photography, particularly for corporate clients) it’s actually fairly common.

    This isn’t meant to suggest that Macmillan shouldn’t be putting this clause in their contract. I’m just pointing out that assigning the right to create derivative works isn’t some sketchy legal trick – it’s a perfectly legitimate right that you own and Macmillan wants. Whether you give it to them is up to you (although I can’t think of many authors who would surrender it).

    Necessary disclaimer: I’m not a lawyer yet (and I’m Canadian, to boot!), so don’t rely on this like it’s real legal advice – you could get into trouble.

  18. TKAstle said:

    Your “eyebrow raise” was perfectly timed, for that is exactly the expression I wore as I read those words.

    All I can say is – Seriously? I mean really. Seriously? *shakes head with eyebrows still raised*

  19. Kristin Laughtin said:

    OK, there seems to be some dissension in the comments over whether the publisher can legally ask for these rights, but even if they can, it seems to be a bad faith move and deprives the author and creator from potential income. I’m sure most authors would like to see this clause removed!

  20. Anonymous said:

    Off topic, royalty loss on e-books from the Authors Guild:

    “The Help,” by Kathryn Stockett
    Author’s Standard Royalty: $3.75 hardcover; $2.28 e-book.
    Author’s E-Loss = -39%
    Publisher’s Margin: $4.75 hardcover; $6.32 e-book.
    Publisher’s E-Gain = +33%

    “Hell’s Corner,” by David Baldacci
    Author’s Standard Royalty: $4.20 hardcover; $2.63 e-book.
    Author’s E-Loss = -37%
    Publisher’s Margin: $5.80 hardcover; $7.37 e-book.
    Publisher’s E-Gain = +27%

    “Unbroken,” by Laura Hillenbrand
    Author’s Standard Royalty: $4.05 hardcover; $3.38 e-book.
    Author’s E-Loss = -17%
    Publisher’s Margin: $5.45 hardcover; $9.62 e-book.
    Publisher’s E-Gain = +77%

    Full article:

  21. Anonymous said:

    I find this quite scary, actually, and possibly somewhat underhanded. Macmillan’s New Writer department receives tons of novel submissions, daily, from new and unpublished writers–most of them without representation, and with no knowledge of the industry or their rights. I’d imagine there will be an awful lot who could sign without understanding the contract, and it appears as nothing more than them taking advantage of that. 🙁

  22. Kenneth Mark Hoover said:

    Frightening news about that publisher, but not unexpected. More and more of them are willing to take advantage of writers in these uncertain times, while the entire profession is in flux.

    Very bad news.

  23. Kenneth Mark Hoover said:

    I am calling upon writers and readers alike to please boycott Macmillan Publishing until they remove the onerous clause from their contract which grants them the right to create “derivative works” based on the work they are buying from the author.

    Please Tweet, blog and post on FB about this. This insane attack on writers while the entire industry is in flux has got to stop. It is time we empower ourselves and fight back. It is time we demand to be treated with dignity.

    Please, help spread the word about this boycott.

    We must fight back in our own self interest. No one else is going to do it for us.

    Kenneth Mark Hoover
    Allen, TX

  24. Linda Pendleton said:

    And people wonder why authors are self-publishing through Kindle, Smashwords, and Create Space?

    It feels good to have control of our own work, and not have to ask “permission” to publish.

  25. Indiana Jim said:

    Anonymous says indie publishing gains again.

    I was going to say that what gains is the finding of a quality agent or Intellectual Property attorney to get a good contract instead of a crappy one.

  26. nymfaux said:

    I know it’s not exactly the same topic, but a lot of bloggers are talking about L.J. Smith being “fired” because she had a “for hire” contract…but it sounds like the end results are the same.

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