When Should Book Packagers Hold Copyright?
Before setting finger to keyboard, I tend to mull over my point and approach to a new post, sometimes for days, trying to find the right way in. The subject of holding copyright vs. doing work for hire has been in the hopper for months, but it was unusually resistant to my attempts to focus. My tack became clear a day or two ago during a discussion with an editor at a trade publisher with whom we hope to work. She asked, somewhat warily it seemed to me, whether Vern Associates "requires" copyright in the books we produce, and clearly was surprised when we assured her nearly every book on our list has been done on a work-for-hire basis. It was our turn to be amazed when we learned that a number of book packagers insist on holding the copyright for books they produce—even those they do not originate.
By way of a quick refresher, most publishers publish books by writers, artists, and other creative sorts—we'll call all of them "authors"—on a royalty basis. Contractually, the publisher agrees to pay the author an advance against the royalties the book is expected to earn. Once the amount earned by actual sales of the book surpasses what the publisher paid in advance, additional earnings begin to accrue to the author's account.
In a royalty-based agreement, the author usually holds the copyright, albeit after undergoing strenuous negotiation with the publisher, who is apt to prefer to hold copyright itself. Even though the author likely grants her publisher the right to sell and license the book and any other "product" that may arise from it—think coffee mugs, T-shirts, and cellphone apps as well as serializations, movies, and audio versions—the copyright holder is in the best position to call the shots as to how whatever may arise from the original property (i.e., the book) is handled, who profits from the result, and to what extent.
But the publishing industry also creates books via a process known as work for hire. Such work entails some or all of of the functions needed to create and/or produce a publication. Once the work is complete, the publisher is owner and proprietor of the fruits of the hiree's labors. You can see why a publisher would prefer this approach. Legally, someone performing work for hire has no claim to what they have produced nor to any recompense that may arise from it beyond that for which he agrees to do the work. In short, he relinquishes title—ownership—to what he has made.
Shifting focus from the individual author to the book packager, however, can cause the work-for-hire distinction to become a little foggy. It's crucial to consider exactly what we provide to a given project. Its concept? Writing? Editorial services? Design and production? The whole nine yards? And what does the resultant publication represent to us?
In general, Vern Associates looks upon itself as providing a service, not a product. Yes, it requires extensive labor and, in the best cases, enormous creative energy; it even results in a printed, bound object. We do not, however, see our involvement in the development and realization of a book as being an issue of ownership. This is what we do. It's our job and purpose. The pride we take in our work is by no means altered or diminished by the knowledge that someone (or something) else actually "owns" it.
On projects that we originate, we may retain the copyright. And of course, in a case where an author's involvement amounts to the prime reason for the book, we negotiate a royalty agreement that designates the author as copyright holder. But as a rule, we don't perceive our firm to be the "owner" of its work.
Don't get me wrong! I readily, eagerly agree that a creative person (or entity) may, will, even should hold the copyright to what results from their thought and labor—that is, consider it to be their personal property. But contemporary struggles over what would otherwise be considered, at most, contributions to a larger whole baffle me. Like so many notions labeled "conservative," to me this attitude smacks of distrust and fear, perhaps of moving on to the next adventure...or of missing out on what one perceives to be his "due." From what I've observed, that way lies madness, because all too frequently such people actually come to be "owned" by the very property to which they stake a claim.
Note: My thanks go to the boxchain / Alex Cockroach Flickr contributor for the photo. Entitled "moneybags," it embodies the ideas in this post on a number of levels.