Why I’m So Passionate About Contract Terms

It pains me to have to write this post so soon after writing one promoting the potential benefits of going with a digital small press. I’m still a believer in the digital small press model, but frankly, authors have to be so, so careful when signing contracts these days, even when the publisher is well-known and reputable. If you don’t have an agent, I really believe it’s downright dangerous to sign a boilerplate contract from any publisher these days without first having the contract reviewed by an attorney with a specialty in publishing. And honestly, even if you have an agent, it might not be a bad idea to have the contract reviewed by an attorney. Because man, publishers are getting sneaky these days.

The latest contract clause to trip my trigger is in the boilerplate of a major epublisher. A publisher I would have recommended authors consider up until I was made aware of this clause, which is apparently relatively new. At this point, I’m not at liberty to name either the publisher or the source of this information. I will also say, in the interest of full disclosure, that I haven’t seen the precise wording of the clause; I only know what I have been told it says. Notwithstanding, I think it’s important to give everyone a heads-up about this particular rights grab, because it’s one you might not even see coming.

So, in a nutshell, the clause states that the publisher “owns” the metadata associated with the book, then further defines metadata as “work-for-hire, including cover copy, blurb, tagline and sales hook.” What’s wrong with this clause, you ask?

Well, first of all, it’s an odd definition of “metadata.” Metadata is usually understood to be things like the author’s name, the book’s title, the series title, and the keywords used to promote the book (for example, “historical romance” or “secret baby”). These are all pieces of data that get sent with the book to retailers to assist them in classifying the book on their site and in searches. I don’t think of any of the items listed in the actual contract as “metadata” at all, so that leads to the head-scratchery question of whether the publisher is trying to claim ownership of the items I consider metadata IN ADDITION TO the items listed in the clause.

Second, the clause defines metadata as work-for-hire and provides a list for inclusion but none for exclusion. And if cover copy and taglines are “work-for-hire” that the publisher owns, then it doesn’t seem unreasonable to assume that content and copy editing (which the publisher pays for) might also be covered by the clause. The contract doesn’t specifically state that edits ARE work for hire, but it doesn’t say they aren’t, either. As far as I know, there’s never been a case where a publisher tried to prevent an author from republishing a reverted book because they owned the edited version of the text, but that doesn’t mean one might not try to, and a clause like this in the contract could certainly give them leverage in the attempt.

I hope from the above explanation that it’s apparent why I think this is a dangerous clause to agree to. If the publisher is really claiming ownership of your book’s metadata (its title, the series title, your name), that means that when the rights revert to you, you might not be able to republish it with the same title, series title, and pen name. (I have a hard time seeing how they could claim to own your name, especially if you’ve used it for books with other publishers, but the fact that your name is metadata and they are claiming to own metadata is troubling.) And if the metadata is really only the “work-for-hire,” you still might be in a bind if the publisher tries to claim that the editorial work on the book belongs to them or even if they try to claim you can’t use words and phrases in your version of the book’s description and tagline that are similar to those they used.

Is keeping you from requesting reversion by making it difficult, if not impossible, for you to republish the book the purpose of this clause? I can’t say. But I also can’t say I see any other logical reason for the publisher to claim ownership of these items. Even if the clause is truly limited to the listed items, at most epublishers, all of them are written by the author, not by an employee of the publisher. Very often, the blurb the author used when submitting the book to the publisher is the basis for the cover copy. How can the publisher own in perpetuity something the author wrote before contracting the book? It’s the kind of rights grab that sets my teeth on edge.

Anyway, the bottom line here is that if you are offered a contract by a publisher, be sure to look for clauses like this that assert perpetual ownership of metadata and/or work-for-hire. If you find one, request that the publisher either strike or modify the clause to your satisfaction. Even if the publisher wouldn’t prevail in preventing you from republishing the book on reversion, you don’t want to get tied up in court over something like this.