Saturday, 4 September 2010

How to read a publishing contract (21)

Copyright keeps cropping in this contract - it's a bit of an obsession with publishers, rather like food is with chefs. This one is about other people infringing your copyright.

20. Infringement of Copyright

If at any time during the continuance of this Agreement the copyright of the Work in the reasonable opinion of the Publishers be infringed, and the Author after receiving written notice of such infringement from the Publishers refuses or neglects to take proceedings in respect of the infringement, the Publishers shall be entitled to take proceedings in the joint names of the Publishers and the Author upon giving the Author sufficient and reasonable security to indemnify the Author against any liability for costs, and in this event any sum received by way of damages shall belong to the Publishers. If the Author is willing to take proceedings and the Publishers desire to be joined with the Author as a party thereto and agree to share the costs, then if any sum is recovered by way of damages and costs such sum shall be applied in payment of the cost incurred and the balance shall be divided equally between the Author and the Publishers. The provisions of this clause are intended to apply only in the case of an infringement of the copyright in the Work affecting the interest in the same granted to the Publishers under this Agreement.

Let's untangle this. In plain English it means:

  • if the publisher spots copyright infringement, they will suggest you take legal action to stop it
  • if you don't want to, the publisher will take action - you won't have to pay anything, but neither will you get any of the money the publisher may get from the case
  • if you and the publisher act together against a copyright infringement (and win), first costs will be covered and then any money left over will be split between you.
The very last bit of the clause means the publisher is only interested in anything that affects their interest in the book. So if someone translates the book into Spanish and sells it, but your publisher doesn't have foreign rights, they don't care. It's then up to you to pursue the Spanish pirate on your own.

the Author after receiving written notice of such infringement from the Publishers - In my experience, I'm the one who spots copyright infringement - usually in the form of pirate digital versions of the book - and tells the publisher, so the first bit of this clause rather misrepresents the publisher as a vigilant guardian of rights when in fact they are either blithely unaware of what is happening or turning a blind eye because they can't be arsed to pursue it. That's not a criticism - I fall into the category of 'can't be arsed to pursue it', too.

If the Author is willing to take proceedings and the Publishers desire to be joined with the Author as a party thereto and agree to share the costs - the publisher will only want to act with you against copyright infringement if they think there is a good chance of winning enough money for it to be worthwhile. If the publisher doesn't want to join in, think carefully about whether you want to pursue it. I would say 'get very good legal advice' but that will cost you (perhaps more than you stand to gain). The Society of Authors might be your best port of call.

If the infringement is in the form of an illegal download of your book, which is by far the most likely form, you can issue a take-down notice. This involves telling the pirate that they are infringing your copyright and you want the material removed within 24 hours. We'll look at take-down notices another day. It is not, in my view, worth spending any money on trying to enforce this. If the download is popular it will spring up in dozens of other places within days or even hours. Give in gracefully and be glad your book is popular.

If you are Dan Brown and someone has ripped off your book to make either a more dire book or a moderately good book, you probably will want to pursue the infringer. But if you're Dan Brown, you can afford to. Remember, too, that a high-profile law suit will give publicity to your book (good) to the infringing book (bad) and to your litiginous nature (bad).

If you are suing JKRowling for stealing your idea about wizards, you are a loser in all regards. Give up now. The only possible reason for doing this is to get a bit of publicity and then drop the case before it costs anything. You might get a few sales from the curious, but it's scant recompense for looking a total plonker in the publishing world.

One you might like to look out for if you are minded to pursue copyright infringers, and you've written a non-fiction book that is essentially a collection of facts, is other books, websites or applications that use your collection. The copyright in a collection of facts does not depend on the words used to express the facts, so if someone has copied your book of 1001 boring facts about cars and made a website of it, you can sue them (if you like - I'd prefer to ask for a link to the book on Amazon). I think we'll have a post on copyright in facts at some future point as it's a strange case.

Should you argue with this clause? Personally, I wouldn't bother UNLESS you don't keep copyright in the book anyway. If you have sold copyright (as you might in a licensed character book or some children's non-fiction, for instance) then infringement of copyright is of no interest to you and you don't want to waste your time on it. You won't get any money back, no matter what, so why even read the email from the publisher telling you PiratesRUs of Uzbekistan has copied your book?


  1. Just whizzed over from Nicola Morgan's blog.

    Too much here to tap into right now, but I'll be coming back to this current series to raid your pastext for gems.

    Thanks for sharing this info. Most useful.

  2. Wow. Thanks for this post. Since I'm hoping I'll be getting a contract before too long, I'm glad to see this here. Granted my agent will be doing all the negotiating, but it would be nice to know what in the world she's talking about. *grin*

  3. Good to see you, Whirlocre - raid away!
    Congratulations on your contract, jasouders! It's *always* worth knowing what they are talking about. It will also make them a bit more attentive and keep them on their toes if you clearly understand it all yourself, and that can't be a bad thing. Come back and tell us about your book when you have your contract, please :-)