The Legal Side of Writing for Anthologies
By Susan Spann | June 20, 2016 |
Flickr Creative Commons: Lorenzo Scheda
Anthologies offer writers an excellent platform for shorter works and create opportunities for reader cross-pollination. When managed and published properly, anthologies have many benefits and relatively few drawbacks for authors. However, authors do need to ensure–before submitting or signing a contract–that the anthology publisher is offering industry-standard contract terms and proper legal protection for the contributing authors and their works.
Today, we’ll review a few of the legal traps and pitfalls authors should beware (and avoid) when contributing work to an anthology:
1. Contracts Are Not Optional.
Every anthology should use a professional, written publishing contract (or release) containing industry-standard terms for anthology publication. If the publisher is taking only non-exclusive rights, and not limiting the author’s right to reprint and re-use the work in any way, a simple release will often suffice, but even this should be in writing. (Note: The author should always retain the copyright and subsidiary rights to the work, as well as the right to re-publish in other contexts. Also, the author should never have to pay the publisher any money or be required to purchase copies of the finished anthology.)
Anthology contracts and releases (sometimes titled “Permission to (Re)Print”) are generally shorter than contracts for book-length works, but they still need to address the relevant legal issues. Also, the contract (or release) must be in writing—emails documenting the parties’ “understanding” are not sufficient and often won’t stand up in court.
2. Never Sign Away Copyright to the Work.
Anthology publishers do NOT need, and should not ask for, ownership of copyright in the individual works that make up the anthology.
Anthology publishers need only a limited license to publish the contributed works as part of the anthology – and the contract should expressly limit the publisher’s use of the work to its inclusion in the relevant anthology or collective work.
If the author transfers copyright to the anthology publisher, the author no longer owns the work and cannot use or publish it in other contexts (without permission, which the publisher then has the legal right to withhold at will). Most anthology publishers don’t try to take ownership of the contributors’ works; don’t submit to anthologies that do.
One additional note: some anthology contracts state that the publisher owns the copyright on the anthology as a collective work. This is different from ownership of the individual stories. Anthologies actually involve two separate types of copyrights:
(1) the authors’ copyrights in their individual stories, and
(2) the “collective work” copyright, which includes only revisions, editing, and/or compilation (e.g., the selection of the stories that went into the anthology) – but not the content of the individual contributions.
“Collective work” copyright is a separate, lesser form that essentially exists to ensure that no one can copy and sell the anthology without the publisher’s permission. Many anthology contracts contain clear copyright language stating that the author retains the sole, individual copyright on his or her contribution, and the publisher owns only the “collective work” copyright (if any) which attaches to the anthology as a whole. Some contracts don’t mention collective work copyright; this is fine, as long as the contract is clear about the author retaining ownership of his or her contribution.
3. Know Where the Money Is Going.
Some anthologies pay participating authors for their contributions, either on a flat fee basis or by means of a royalty share. Other anthologies don’t compensate contributing authors financially; however, many non-paying anthologies donate the sales proceeds to charity or to the nonprofit organization that sponsored the publication.
There’s nothing inherently “wrong” with contributing works to anthologies that don’t pay fees or royalties, as long as you (the contributing author) understand and agree with the way the anthology’s profits will be handled. As long as the contract (or your communications with the publisher or sponsor) describes where the money is going—and you trust the publisher to follow through—the decision whether or not to contribute a story to a non-royalty-bearing anthology is a business decision for the author.
4. Submit Only to Reputable Anthologies.
Some anthologies have strong professional reputations, and offer broad exposure. Both traditionally-published and self-published anthologies (including those released by groups of collaborating author-publishers) have enjoyed fantastic success, when published and marketed in a professional manner.
Before submitting your work or signing a contract for anthology publication, consider the experience level and reputation of the publisher (or anthology sponsor), the editor (if one is named), the terms of the publishing contract, and all other relevant aspects of the deal. Select anthologies that match your plans for your work and also offer appropriate contract terms.
Remember: it’s perfectly acceptable to ask to review the contract or release before you make a commitment.
5. Beware of Mandatory Purchase and Marketing Requirements.
Most anthologies don’t require participating authors to purchase copies of the finished work or mandate author participation in marketing activities. Although many authors choose to purchase copies and to help with marketing for the finished work, these should be the author’s choice—and not required by contract.
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These aren’t the only legal issues to watch for in anthology contracts; we’ll look at several more when I return for another post in September.
In the meantime, I’d love to hear about your anthology experiences – have you published in this format? If not, would you consider it? And if you have published this way, would you do it again?
Susan Spann writes the Hiro Hattori Novels (Shinobi Mysteries) featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo, who solve mysteries set in medieval Japan. Her first novel, Claws of the Cat: A Shinobi Mystery (Minotaur, 2013) was a Library Journal mystery debut of the month and a finalist for the Silver Falchion Award for Best First Novel. Her fourth Hiro Hattori novel, The Ninja’s Daughter, releases August 2, 2016 from Seventh Street Books.
Susan is the 2015 Rocky Mountain Fiction Writers’ Writer of the Year, and also a transactional attorney whose practice focuses on business and publishing law. She founded and curates the Twitter hashtag #PubLaw (for Writers), where she answers questions and provides information about publishing business and legal issues.
When not writing or representing clients, Susan enjoys traditional archery, reading fiction and nonfiction, and raising seahorses and rare corals in her marine aquarium. She lives outside Sacramento, California, but you can find her online at https://www.SusanSpann.com, on Twitter (@SusanSpann), or on Facebook/SusanSpannBooks.
Susan-
The issue of an grant of exclusive versus non-exclusive anthology rights has some nuance worth mentioning.
Anthologies of original stories often ask for a period of exclusive use, typically one year (following first publication). After that, the author is free to license the story to other anthologies, use it in collections of their own work, or in other ways (such as folding the story into a novel).
As agent, provided that an exclusive grant is limited in duration, I’m fine with it. As you say, though, all other rights (movie/TV adaptation, say, should one be so lucky) are always reserved for the author’s use.
Another thing to watch out for is the scope of publication rights in an anthology contract. English language only or all languages? North America only or throughout the world? Are audio rights included? E-books never go out of print, so prepare to see your story in that anthology more or less forever.
Again, as long as the grant is, or turns, non-exclusive and is limited to inclusion in the anthology and nothing else, then why not? The more people who read your story the better, right?
Thanks for bringing this up, Don. Anthology rights is actually the subject of my next guest post (in September) – I wanted to include this information here too, but the post length prevented me from addressing everything at once. I’m really glad you brought it up in the comments, because it’s helpful to have the information in one place, and this way anyone who reads the comments will see this also. Thank you!!
Good to know. Thanks!
I’m glad it was useful! Thank you!
Thank you for your advice. It is really good to be able to retain rights, though I’ve not done anything with mine. I have published in four anthologies and been delighted with the results. One was unusual — a contest for Poetry on the Bus. Mine was the only children’s poem selected and I have the placard sized poster that was on 65 buses in King County. Makes me happy just to think about it. Here it is online: https://metro.kingcounty.gov/prog/poetry/2007/poem-52.html
Congratulations on the selection of your poem! That’s fantastic – and yes, even though you may not have utilized the rights for now, it’s definitely nice that you have them, in case you have opportunities in the future.
It’s really interesting to come across this right now because I’m actually in the planning stages for developing two anthologies at the moment and a little daunted by the project. The idea of wrangling together enough submissions and then collaborating with so many contributors is daunting enough so it was good to remember that every contributor will need to sign an official contract granting publication rights. I’ll be looking out for your next post that delves into the subject again, Susan.
As a contributor, I’ve written for a few different anthologies. Usually, I’ve written the story/essay specifically for the anthology and not been concerned with holding onto my rights for the story so it hasn’t really been an issue for me. I mean, if I want to publish the story elsewhere, I can always rewrite it; same plot/experience with a different combination of words equals a new story. Because the stories are written specifically for particular anthologies they’re given unique flavour that mean they might not be suited to publishing anywhere else.
Having said that, unless I’ve signed a contract stating otherwise, I know that legally I retain my rights. In fact, it’s the anthology publisher that has the most absolute need for that contract because without it a contributor could revoke their permission at any point and the publisher would be forced to remove the book from distribution to remain within the law. That could lead to substantial losses to the publisher. So, definitely there should be a contract, but it’s less for the protection of the writer and more for the protection of the publisher and their publication (and therefore the good of all the contributors).
It’s actually important for writers to have contracts as well. First, there are laws in many states requiring contracts to be in writing unless, by their terms, they can be fulfilled within a year (these are known as Statutes of Frauds and they do in many cases apply to publishing contracts). Also – if you enter into a contract without a writing, and a dispute arises, a court will often imply many of the terms of that contract – and going to court is extremely expensive, which leaves most authors at the mercy of publishing houses (or courts, which isn’t always better) when it comes to the contract terms. Few authors can afford the five-figure retainer litigation attorneys charge to try and sue over legal rights.
While the publisher definitely needs a good contract, the author should absolutely protect himself or herself against the cost and trouble of having to fight over rights in court by ensuring the contract is in writing.
On a slightly different note: congratulations on your upcoming anthology project! I can understand how daunting it can be (I represent several private anthology publishers – individuals and small houses) – but with a good contract, you’ll hopefully find the process a lot easier. I definitely recommend hiring a publishing attorney (someone in your state) to write the contract for you, so you have a solid, industry-standard form. I wish you, and your anthologies, great success!
Thanks Susan. You’re right about the importance of a contract in defending legal rights so that’s a very good point. Although, I would like (perhaps naively) to think that a party would have to prove they DO have permission rather than an author having to prove they don’t. The lack, therefore, of a contract should be evidence that no such understanding exists. Of course, I’m from Australia where there is significantly less of a “take it to court” mentality than I know there is in other parts of the world which is perhaps what shelters my sensibilities in this regard.
I do have legal counsel in my home state, but it’s more cost effective to write the template contract myself and then have him tighten it up than to have him create one from scratch. Thankfully, there are some fantastic resources for understanding contract structure and opportunities to see industry-standard examples, so it’s not too difficult to do. But it is definitely something I’ll want in place before I begin accepting submissions so I’m glad I’m still in the very early planning stages for these anthologies. :-)
Thank you for the well wishes and congratulations on your own part in representing anthology publishers.
Thank you Rebecca – and I wish you great success with your anthologies.
Thank you for this information. As the publisher of one anthology and another in development, I have required all contributors to sign a contract granting me permission to publish their work. I have had a contributor republish their work in another anthology a mere six months after the first book was published and it led to numerous issues that the contract was designed to prevent. It is important that writers READ the contracts they sign before agreeing to be published in any works.
You make an excellent point Lisa: authors need to read and understand the contracts they’re signing – not only to protect their own legal rights, but to ensure that they don’t take later actions that violate the agreement.
Good advice. This year, I turned down publication in an anthology because the publisher asked for exclusive rights for the life of the copyright, in print, audio, and ebook formats, including expanded/condensed versions. While they did carve out one exception if I ever published a book of essays or a memoir completely my own, that was the only exception. You really have to watch what those contracts say. It was disappointing, because when I submitted I thought it was a reputable outfit. I don’t know if they just didn’t know what they were doing, or if they were rights-grabbing.
I’m sure it was disappointing, Susan – and I’ve seen this type of problem a lot in anthology contracts. As you point out, it’s often the result of small publishers not understanding what rights they need, and overreaching “accidentally-on-purpose” because they thought they needed more (or didn’t take the time to have an experienced publishing lawyer review the contract).
In my experience, many small anthology publishers’ contracts do have issues – but when authors (or attorneys) point them out, and request contract modifications, many of the publishers are also willing to make the changes. It’s always worth asking . . . and worth walking away if they refuse to be reasonable, too.