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Negotiating Trademarks and Copyrights in Book Publishing Deals

This post is the second in a 14-part series that informs authors, literary agents, lawyers, publishers, and other interested readers about the basics of book deals. It provides tactics and tips to be used when negotiating a book deal. Check back each week for the newest post or subscribe to the newsletter on bobbydesmond.com to get it sent directly to your email inbox.


Once a book is finished, an author may be curious as to whether he or she should register the copyrights and trademarks in his or her book, title, and cover design. This post discusses how the book publishing contract regulates copyrights and trademarks. It provides authors, agents, lawyers, and publishers with tips and tactics for negotiating who is responsible for registering trademarks and copyrights.

Copyright Registration

Generally, books are creative works that are protected by copyright law simply by being written. There is no requirement that an author register the copyright in a book. However, authors can seek additional protections and advantages by registering the copyright in their book before submitting their book to publishers. For example, an author that registers the copyright in his or her book can obtain statutory damages and attorney’s fees in federal court. Registration is also seen as prima facie evidence of copyright ownership, if the case does go to court.

Alternatively, the author may choose to rely on the publisher to submit the copyright registration. This does not fully protect the author against the possibility that the book may be plagiarized by a beta reader, editor, publisher, its employees, or some other party that has access to the work before publication. Nor does it protect the author against the possibility that the publisher may forget or fail to properly register the copyright in the book. In such instances, the author will only be able to seek actual damages and profits (excluding attorneys’ fees) which will likely be much less than if the copyright was registered by the author ahead of time.

As many writing blogs point out, it is not necessary for an author to copyright his or her manuscript before sending it out to agents or publishers. Your book is already protected just by being fixed in a tangible medium – in other words, by being written. Hopefully, there is little to no chance that your book will be plagiarized by the friends you ask to read your manuscript or reputable agents and publishers. However, there is a chance that the work could be infringed, and $35 is a small price to pay for piece of mind.

Copyright registration is an easy process, but authors may seek an attorney to complete the registration process properly. Those authors that do choose to copyright their manuscript should beware of online registration services that charge exorbitant fees or suggest paying extra for unnecessary certificates of ownership. Likewise, authors should avoid falling for the myth of the “poor man’s copyright.” Sending yourself a a copy of your manuscript in the mail and keeping the envelope unopened as evidence that you wrote the manuscript before the postmarked date is not a protection recognized by the copyright statute or by U.S. courts.

Trademark Registration

On the other hand, the title and cover design of the book may also be protected by trademark registration and trade dress rights. Typically, authors will not register trademark in their work before publication. Instead, the publisher’s in-house team will register these rights for the author.

In the event that an author does wish to trademark his or her work, such as an author who self publishes, a trademark attorney should be consulted, as the trademark registration process is more difficult and legally technical than the copyright registration process. A trademark attorney can provide authors with a thorough search of the Trademark Electronic Search System and relevant case law to advise an author on the likelihood that their title or cover design will receive protection.

A trademark attorney can also counsel authors on what classes their works should be registered under. Typically, authors will want to register under Class 16 which covers paper and printed products such as books. There may be other applicable classes such as Class 9 which protects audiobooks among other relevant products. In addition to being more confusing than copyright registration, trademark registration is also more expensive. The filing fees alone cost between $225-$400 per class.

Registration by the Publisher

Many authors will decide to postpone copyright registration and allow their publisher to complete the registration process in-house. If the author plans to rely on the publisher to register the copyrights or trademarks in the book, title, and cover, then the book publishing contract should include a clause which states that it is the publisher’s responsibility to do so in the author’s name but at the publisher’s expense before publication.

Separately, the author should ask the publisher to agree to indemnify the author, in case the publisher forgets or fails to properly register the copyrights or trademarks in the book, title, or cover.

Copyright Notice

The book publishing contract should require the publisher to include a notice of copyright in the name of the author in a form, place, and manner that complies with copyright law in the United States and/or wherever the book is published.

Assignment vs. License

An assignment occurs when an author gives up the copyright in the book to the publisher. In other words, the author no longer owns the copyright in the book, and the publisher is now the rightful owner of the copyright. This is most common in scenarios where the author is an employee of the publisher. For example, a journalist whose work is routinely published by a news magazine.

A license occurs when an author grants a publisher permission to use the copyright. In other words, the author retains ownership of the copyright in the book, and the publisher may reproduce, distribute, and sell the book. As such, an author of a book or series should always consult a trained agent or licensed attorney to ensure that the book publishing contract grants the publisher a license to exploit the work, not an assignment of the copyright. It is the agent or attorney’s job to guarantee that the book deal is as favorable to the author as possible in this regard.


This 14-part series on Negotiating Book Deals will be published weekly. You can read the other posts in the series by clicking on the links below, or you can get new posts sent directly to your email inbox by subscribing to bobbydesmond.com.

  1. Titles and Cover Designs
  2. Trademarks and Copyrights
  3. Description of the Work
  4. Exclusivity
  5. Grant of Rights
  6. Subsidiary Rights
  7. Other Important Rights
  8. Royalties and Advances
  9. Other Financial Terms
  10. Delivery of the Manuscript
  11. Permissions and Editing
  12. When and How an Author’s Book is Published
  13. Revised Editions, Cessation of Publication, and Termination
  14. Representations and Warranties, Indemnification, and Insurance

About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby attended the University of Florida Levin College of Law in order to pursue an in-house legal career at an entertainment or media corporation. He has interned at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He graduated in May 2018 and sat for the New York Bar Exam in July 2018.


 

Negotiating Titles and Cover Designs in Book Publishing Deals

Introducing a New Series on Negotiating Book Publishing Deals

Once an author lands a book deal, negotiations begin. Typically, these negotiations start with a preliminary discussion between the author and the publisher about the terms of the book publishing contract. The publisher then memorializes the details of that discussion in a memo. This memo generally includes details about the grants, royalties, and any options for future books. Then, the publisher drafts the contract based on their standard book publishing contract.

There are many terms and clauses in the standard book deal that need to be renegotiated and redrafted to be more favorable for the author. These negotiations are done by the publisher and the author’s literary agent or lawyer. Most often, the author’s literary agent or lawyer will review the contract and make changes called redline edits. The publisher will then review these changes and decide whether it accepts them or not. Typically, this process will go back and forth for a couple rounds until both sides are happy with the deal.

This series informs authors, literary agents, lawyers, publishers, and other interested readers about the basics of book deals. It provides tactics and tips to be used when negotiating a book deal. It consists of fourteen parts that cover negotiating the following topics:

  1. Titles and Cover Designs
  2. Trademarks and Copyrights
  3. Description of the Work
  4. Exclusivity
  5. Grant of Rights
  6. Subsidiary Rights
  7. Other Important Rights
  8. Royalties and Advances
  9. Other Financial Terms
  10. Delivery of the Manuscript
  11. Permissions and Editing
  12. When and How an Author’s Book is Published
  13. Revised Editions, Cessation of Publication, and Termination
  14. Representations and Warranties, Indemnification, and Insurance

Check back each week for the newest post or subscribe to the newsletter on bobbydesmond.com to get it sent directly to your email inbox.


Negotiating Titles and Cover Designs in Book Publishing Deals 

While an author writes a book, he or she may ponder possible titles and cover design ideas. However, when an author approaches a publisher, it may have different suggestions entirely. This post discusses how the book publishing contract regulates that decision-making process. It provides authors, agents, lawyers, and publishers with tips and tactics for negotiating who chooses the title and cover design.

Negotiating a Title and Cover Design

Publishers will typically push for broad title rights. Title rights give the publisher the right to exploit the title of the book along with the logotype, trademark, trade dress, format, and other features of the book as published and promoted by the publisher. However, this is separate from the right to choose the title of the book.

Book publishing contracts may state that the title used in the contract is subject to change. Often, publishers prefer or require a different title for one of many valid reasons. Remember, both the author and the publisher have the same goal in mind: to sell as many copies of the book as possible. Publishers have a wealth of knowledge and experience when it comes to picking out the perfect title for an author’s book. If a publisher suggests a name change, the publisher likely has a good reason for doing so – one that will increase the number of book sales and, in turn, make the author more money.

Less frequently, authors become attached to a cover design idea before finding a publisher.

To protect the author’s rights, a trained literary agent will ensure that the book publishing contract includes a clause that states:

Publisher agrees that Author shall have the right to review and approve or disapprove of the Title and the Cover Design of the Work.

Often, publishers will want more control over the title and cover design. In such cases, the publisher may counter with language that provides the publisher control over what the title is and what the cover design looks like while also allowing the author to play a role in the decision-making process. Here is an example:

Publisher agrees that Author shall be reasonably consulted on the Title and the Cover Design of the Work.

Much like the title of a book, publishers have a wealth of knowledge and experience when it comes to designing the perfect cover. Remember, both the author and the publisher have the same goal in mind: to sell as many copies of the book as possible.  If a publisher prefers a certain cover, the publisher likely has a good reason for that preference – one that will increase the number of book sales and, in turn, make the author richer.

As such, authors, literary agents, and lawyers should pay particularly close attention to the title and cover design clauses of book publishing contracts, especially if the author already has a title and/or cover design in mind.


About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby attended the University of Florida Levin College of Law in order to pursue an in-house legal career at an entertainment or media corporation. He has interned at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He graduated in May 2018 and sat for the New York Bar Exam in July 2018.