Pub Rants

So Let’s Talk Derivative Works

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Status: These dang computers. I want to bang my head on my desk.

What’s Playing on the XM or iPod right now? MARRY ME by Train

About two weeks ago I mentioned that the most problematic issue in the new Macmillan boilerplate was the new clause 6. b. that granted the publisher the right to the copyright in any derivative work created by the publisher.

Just for the record, I’m not a copyright attorney and I don’t pretend to be one on TV or if I stay at a Holiday Inn Express. In other words, I’m not dispensing legal advice here; I’m simply sharing with you my general musings regarding the clause.

Since I don’t have the expertise, I sent it to my IP attorney. Now he’s not a copyright attorney either but his law firm certainly has an expert in-house so we looped him on the conversation as well.

A virtual copyright party at NLA!

His biggest concern was the broadness of the clause and how derivative works is not clearly defined. If you’d like some light reading before you go to bed tonight, feel free to click here. This will link you to the copyright act in all its glory. You’ll want to click on Chapter 1 and peruse sections 102 and 103 that particularly discuss derivative works.

He also let me know that there are currently lawsuits in process that examine the scope of derivative works and what can or can’t be defined as such. Fun.

So two thoughts:
1. It’s obviously better to remove the clause and any reference to derivative works from the contract. And, if you have leverage, it can be done. But if you don’t…

2. How best to restrict this clause in such a way to make pursuit of derivative works impossible without expressed approval of the author?

Now we’re talking. My lawyer gave me some good insights and if you want to pay my lawyer fees, then I could share them on the blog. *grin*

This is why you have agents by the way.

My other big question was this: I get how a derivative work could be done fairly easily with a nonfiction project, but I wasn’t certain how it would apply to fiction. Now I am.

More on that tomorrow. Stay tuned.

More Train music on iLike

12 Responses

  1. lac582 said:

    That copyright act text made my eyes hurt. Real-life examples of derivative works for both fiction and nonfiction would definitely be illuminating!

    I immediately think of things like Star Wars-type series or novelizations of films originally adapted from novels.

  2. Lucy said:

    Cue scary music for tomorrow’s post.

    Youch. Yes, I do want an agent. A good one. And I know which one I want. Supply, however, exceeds demand, and until we can find a way to clone you…. 😀

  3. Lucy said:

    Oh, cripes, did I just write that? Talk about reversing the laws of economics. Demand exceeds supply. Yes. That’s what I meant.

  4. Amy said:

    I am so glad you’re addressing this again. I mean, could a sequel count? Copyright laws have fascinated me for years, and it seems wrong that a person could even sign away that type of right – it certainly wouldn’t be supported under fair use because of the massive loss of potential income.

    And Lucy, I think the supply of good manuscripts exceeds the demand for them, too, so it still works!

  5. Brandon Bell said:

    I’m sure with the help of a good agent, this is navigable.

    And it occurred to me that between giving all rights to derivatives to the publisher vs. setting the work free to the wider culture via a Creative Commons license, I’d rather do the latter.

    I’m not an ideologue, and I don’t suggest that this is a tool for all problems or all people, but a tool it is and one that might find good use in such a situation.

    Thanks for the nice post!


  6. jo v said:

    Looks a little like traditional publishers are scrambling to remain viable to me. Change is just as painful and scary for them as it is for us. Not excusing them, mind you, for this attempted rights grab, and I’m grateful for the heads up that they’re trying it. I think in 10 years the publishing industry will be almost unrecognizable from today’s perspective.

  7. Kristi Helvig said:

    “This is why you have agents by the way.”

    That says it all right there…between reading this and Nathan Bransford’s post on using html code in Facebook, my brain hurts!

  8. africa2asia said:

    Dear oh dear … this just made me realise, once again, that having an agent is so much better than trying to do this yourself! Thanks, even though I didn’t understand half of it, and good luck.

  9. Kristen said:

    I think I love you.

    Thanks for being an awesome agent for your clients. You make literary agents look good, and your blog is my favorite of the blogging lit agents I’ve seen…

    well, except for maybe Miss Snark’s, but she’s not blogging anymore, and it’d be bad business for you to be as brutally honest as her, 😛

    So yea, you’re my current fav, and have been for some time, 🙂

    Keep up the awesome!

  10. crow productions said:

    Even though I haven’t reached that particular problem, I can at least feel assured that if I do come across this concern over copyright I will be sure to question it. I wrote the thing, it should be my copyright. I think.

  11. Alexander said:

    Hey, just found the blog, working my way backwards! Just wanted to say, A. I would bet that part of the frenzy over what derivative works mean is the recent lawsuit between a certain married couple, and whether sequel and spin off were the same thing.

    So, this brings a curious hypothetical. Isaac asimov wrote two (among others) main series that he’s known for. The elijah bailey novels, and the foundation novels. Near the end of the last foundation novels he wrote, we suddenly were tied into the elijah bailey series, and it was discovered that a character from that series was a major player in foundation. At that point, would the entirety of one be considered a derivative work of the other?