Based on creative wording we have seen in reversion letters and both questions and opinions expressed regarding reversion of rights to authors, RWA retained a literary attorney to provide an expert opinion on the matter. The attorney sent a nine-page legal opinion letter, which I have boiled down to the following salient points. Please know that RWA is more than willing to contact publishers on an author’s behalf when a publisher’s actions are contrary to written contracts and/or laws.
CAUTION: Reverted rights do not include elements prepared or written by the editor or someone other than the author. Examples are design elements, editorial content such as an introduction, prologue, or other front matter of a book, including the list of the author’s previous works, an epilogue, or cover copy.
Rights reverted to a novelist upon the exercise of an out-of-print, or reversion of rights, clause include editorial revisions, so long as those revisions are not independently copyrightable. Briefly, the Copyright Act defines a “joint work” as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” In order to determine whether joint authorship exists, the contribution of each party must be independently copyrightable and there must be intent to create a joint work “by each putative author at the time the contribution was created.” Childress v. Taylor, 945 F 2d 500, 507 (2d Cir. 1991). Although editors may make many useful revisions, unless both participants enter into the venture as joint authors, editorial contributions are not separately copyrightable. Courts have repeatedly ruled that the author retains sole authorship absent evidence that both the author and the editor intended to be joint authors at the time they merged their contributions. In evaluating the intent of the parties, courts will look to whether the author retains final approval of the manuscript, how authorship is credited, in whose name the Copyright Office registration was filed, and agreements and other communications between the parties.
However, copyright law does not exist in a vacuum. Rights granted authors under the Copyright Act can be altered by contract. Be sure to understand the reversion clauses of all contracts you sign.
Allison Kelley, CAE, Executive Director
RWA will soon issue statements on the topics of copyrightability of book design and Harlequin’s proposed amendments for series contracts.