There is nothing easy about the process of writing a book, which means, every step of the process should be conducted carefully.  

Generally speaking, when you’re in the beginning phases of writing a book (in other words, you have an idea in mind, or perhaps have even begun speaking to various publishers), there are simple contractual and intellectual property considerations you should keep in mind. Today’s article will focus on the latter; a much more detail post will be coming soon, discussing what those agreements should entail, and how to preserve your literary work’s legacy in an estate.

AGREEMENTS TO HAVE IN PLACE PRIOR TO PUBLISHING

As a general overview, before you’re ready to put your book out into the world, make sure you have at least examined whether or not you need the following:

• Work made for hire agreement for illustrators (what happens when you go to register the logo for your new business you’ve created based off of your novel, and you don’t actually own the copyrights to the graphics?)
• Agent agreement– if you have an agent, you should, of course, have a strong agreement in place with them, covering a multitude of topics such as how copyrights will be handled, sales, royalties, etc.)
• Publishing agreement  
• Option and purchase agreement (more applicable when you begin exploring producing the novel in other mediums, such as films, etc)

INTELLECTUAL PROPERTY CONSIDERATIONS

First, what intellectual property applies to books?

There are 3 main forms of intellectual property: patents, trademarks and copyrights. Patents pertain to inventions, which do not apply to literature. 

TRADEMARKS

The second form, trademarks, may apply in certain circumstances, but only rarely. Trademarks are a form of intellectual property protection for “brand identifiers”; ie, what makes your goods or services unique in commerce. Novels generally do not fall within this realm, unless they fall within an exception as part of a series. What is the exception? 

It is possible to register the title of your novel as it pertains to goods and services you provide under that title, so long as those goods are not sales of your actual book. In other words, when authors create a brand around their book (merchandise, blogs, websites, courses, etc), a trademark may be registered to protect that brand that has been created. Once your book becomes a brand, it operates as the identifier of the source of all of the goods and services you offer under that brand. Registering your trademark in that brand name will make sure that other people can’t also use it as a brand name (although it is important to note that another author could also use that title as a book title) and preserve that all-important brand identity. 

COPYRIGHTS

As pulled from the US copyright office:

Copyright protection subsists from the time the work is created in fixed form; that is, it is an incident of the process of authorship. The copyright in the work of authorship immediately becomes the property of the author who created it. Only the author or those deriving their rights through the author can rightfully claim copyright. In the case of works made for hire, the employer and not the employee is considered to be the author.

Section 101 of the copyright statute defines a work made for hire as:

1. a work prepared by an employee within the scope of his or her employment; or
2. a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire…

Unpublished Collections

A work may be registered in unpublished form as a collection, with one application and one fee, under the following conditions:

• The elements of the collection are assembled in an orderly form;
  • The combined elements bear a single title identifying the collection as a whole;
  • The copyright claimant in all the elements and in the collection as a whole is the same; and
  • All of the elements are by the same author, or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each element.
• An unpublished collection is indexed in the Catalog of Copyright Entries only under the collection title.

Effective Date of Registration

A copyright registration is effective on the date the Copyright Office receives all of the required elements in acceptable form, regardless of how long it then takes to process the application and mail the certificate of registration. The time the Copyright Office requires to process an application varies, depending on the amount of material the Office is receiving and the personnel available. Keep in mind that it may take a number of days for mailed material to reach the Copyright Office and for the certificate of registration to reach the recipient after being mailed by the Copyright Office.

If you are filing an application for copyright registration in the Copyright Office, you will not receive an acknowledgment that your application has been received, but you can expect:

• A letter or telephone call from a Copyright Office staff member if further information is needed;
• A certificate of registration to indicate the work has been registered; or
  If registration cannot be made, a letter explaining why it has been refused.

Please allow 120 days to receive a letter or certificate of registration. If you want to know when the Copyright Office receives your material, you should send it by registered or certified mail and request a return receipt from the post office. Allow at least 3 weeks for the return of your receipt.

To summarize copyrights:

Know that just by writing your book itself, you have what are known as common law copyright rights. The moment your work is in tangible form, you own common law rights. However, registering your work with the Copyright Office (which does cost money) allows you greater power to litigate and collect damages should someone infringe upon your work.

Be clear about copyright ownership with your publisher.

Of course, your agreement with your publisher will be case-specific, but commonly, publishers who contract with authors will copyright the book in the author;s name. Most of these agreements contain a clause whereby the publisher takes out the copyright in the name of the author, and the publisher merely handles the paperwork on behalf of the author. However, the copyright remains the author’s property, and the author’s name follows the copyright symbol on the copyright page.

In conclusion, it’s wise to speak to an agent, as well as an attorney well-versed in the realm of intellectual property and contracts to ensure that your agreements are negotiated properly, and your intellectual property is secured. Reach out to us at hello@paigehulse.com for more information.