Literary Rights: An Author’s Minefield

When most people imagine dramatic courtroom scenes, the topic at hand is usually a gruesome murder, a salacious affair, or the conclusion to an exciting whudonit. Less imagined is the intricacies of copyright issues, a topic only a lawyer could love. Now I have to confess, as someone for whom law school was once a very real life possibility, I might skew the results in a poll about if copyrights are interesting or not—to me they are the epitome of human drama. For an author, understanding the ins and outs of copyright issues can be vital to ensuring a long and profitable career. 

You may have seen the issue of copyright in the news lately, with Taylor Swift at the center. For a little background, Swift was originally signed to one record label (Big Machine Label Group), and though she herself has written and composed her music, the label owns the songs due to the terms of the contract she signed years ago, before she had the strength of being a seasoned artist with millions of sales under her belt. According to that same contract, Swift will be able to re-record songs off her past albums in late 2020, but until that time she remains embroiled in arguments with her former label and the men who run it. When she signed to Universal Music Group she made sure to correct that wrong, stating of her most recent album, Lover, that what is “really special to me is that it’s the first one that I will own.” Being aware of what you can ask for, and what you should fight for, is paramount to longevity in the publishing industry. 

So let’s jump in: a Copyright is an Intellectual Property right, set up to protect ideas and works of any artist in any artistic industry, from written word to music to sculptures to films. Just like a piece of land, copyrights can be sold, purchased, transferred, etc. While authors do not have to file with the U.S. Copyright Office in order to have the protection of a copyright, it is highly recommended—to sue someone for infringement of your work, it must first be registered. 

The owner of a copyright has these five rights exclusively to themselves:

  1. The right to reproduce the work
  2. The right to prepare derivative work based on the original work (i.e. sequels)
  3. The right to distribute copies of the work to the public
  4. The right to publicly perform the work
  5. The right to publicly display the work

Now once you have all these rights you can then: 

  1. Keep all five of these rights to yourself and only yourself for the rest of time, amen*
  2. Transfer/sell all five rights to a third party (such as a publisher or record company)
  3. Split the rights with a third party, transferring a few to them and keeping some for yourself. 

Once you transfer any of these rights, they no longer belong in any way to you. You must ask the new owner for permission to do anything pertaining to that specific right. This is not necessarily a bad thing, but it is certainly something to keep in mind before you make any big decisions. 

In Taylor Swift’s case, she contractually transferred more of these rights to her record company than she would later be comfortable with. This happens to many young and new artists who feel pressured to sign a bad contract because it is better than no contract at all. 

The number one thing an author can do to ensure that their rights will be protected is to get a literary agent and a lawyer. I know not everyone has especially happy feelings toward lawyers, but you must have one. Get ready for contracts, and lots of ‘em. Before you publish a book, but specifically a book with a major publisher, you should have a literary agent, a lawyer, and a contract** between you and your literary agent, looked over and approved by your lawyer. Any contract brought to you by a publishing house and/or your agent should be looked over by a lawyer. In business there is always a chance things could go differently than you planned, but covering your bases in this fashion should leave you at a much lower risk. Look at this way, if you went to a dentist because of a minor issue and they immediately insist that you must have a terrible and invasive surgery, you would probably seek a second opinion just to make sure. In this case, your lawyer is your second opinion, saving you from a root canal you don’t need. 

In a best case scenario, your literary agent would act as your best friend in this situation. They would be your first phone call when you leave the dentist, they would ask questions, and they would encourage you to get that second opinion. The relationship between an author and a literary agent is very close and a little tricky. When money is involved relationships are instantly harder, even if you very much love and respect the other person. You should always remember that your literary agent brings a fiduciary responsibility to the table, and should therefore always put an author’s needs before their own. If you enter into a relationship with a literary agent and find that this is not always their practice, you should get out immediately and document the situation. 

I don’t meant to scare you or make you think the situation is impossible to navigate. I only recommend that you do not enter into any contract lightly, understanding that you could at some miraculous point find yourself in a situation much like that of Taylor Swift’s, wishing you had asked more questions, or had several people besides yourself looking out for your best interest, before you put a pen on the dotted line. 

*….sort of. Your copyright will stay intact for your entire lifetime, plus 70 years from the calendar date of your death. After that time it will become fair use, which is why you can now use the Happy Birthday song without any fear of retribution

**Not every literary agency offers contracts per say, but you should get any agreement of any kind between yourself and your literary agent or agency in writing, and have it notarized.