An American Editor

August 30, 2017

From the Archives: The Editor’s Interest: Copyright or Not

(The following essay was originally published on
An American Editor on March 1, 2011. The addendum
was added and published on August 30, 2017.)

A question that sometimes arises, usually when an editor has difficulty getting paid for his or her work, is: What can the editor do to collect payment? I’ve been a long-time advocate of the position that the editor has a copyright interest in the edited version of the manuscript, a card that the editor should play in payment disputes.

We need to step back a little. First, if you are an editor and have a written contract governing the relationship between you and the client, unless the contract specifically provides for your copyright interest, you don’t have one — your relationship is governed by the four corners of the written contract.

Second, the law is unsettled, not clear, or whatever other description you want (muddy, perhaps?) as regards an editor’s interest in the edited manuscript.

Third, the editor’s interest I advocate extends only to the edited version. The author and/or publisher have an unencumbered copyright interest in the original manuscript the editor received; it is only the editor’s edited version in which the editor has an interest — and that interest is wholly extinguished upon being paid in full (i.e., the check has cleared, not the check has been received).

As you can see, I am talking about a narrow interest, not the broader interest that an author has in the manuscript. This narrower interest can readily be extinguished in two ways: (1) payment for service in full or (2) wholesale rejection of the edited manuscript. Acceptance of even a single comma, or corrected spelling — that is, of any single edit — is, in my view sufficient to retain the editor’s interest.

Here is where opinions begin to scatter. I have been told by lawyers for one major publisher that I do not have such an interest. It was a great thrust to the heart by the publisher but, alas, it missed. If lawyers scare you, then this isn’t the position to take. But if you have some titanium backbone, the response is (and the one I made)

I am willing to find out in a court of law. Are you willing to take the chance that the court sides with me, because if you are and if you lose, you will make life exceedingly difficult for your publisher client. Isn’t it smarter to simply pay my bill?

The reality is that it is smarter to pay my bill and not hire me again. It is unlikely that what is owed me is such a large amount of money that the risk of losing in court is worth taking.

Of course, there are steps that should be taken when using this collection method. You should send both an e-mail and a certified-mail return-receipt letter to the client notifying the client of your interest and demanding that they either pay your invoice in full immediately (be sure to give a specific payment date) or

  • not publish the edited manuscript;
  • if they publish the manuscript, that they not sell any copies or distribute any copies;
  • if they sell or distribute any copies, that they place 100% of all receipts in a trust fund pending outcome of litigation;
  • and that they notify the author(s) in writing that you are claiming a copyright interest in the edited version of the manuscript because of the client’s failure to pay for your services, which payment would extinguish your copyright interest.

You’d be surprised at how much influence a screaming author can have, especially if the author liked your work! If you know how to contact the author, you should send a copy of the e-mail and letter directly to the author as well as to the publisher.

Alright, I admit we haven’t yet determined how valid the editor’s claimed copyright interest is, but I’m not sure it is possible to determine its validity in the absence of a major court’s definitive decision (lower court decisions have little precedential value, just witness the 5 decisions on Obamacare). Because it is an open question, I see no problem in making the claim. Personally, I see no problem in defending the claim, either.

A court decision adverse to a publisher and in favor of an editor on this could have significant ramifications for publishers. It would add pressure to pay on time because an editor could prevent release of the manuscript in its edited form. Of course, it could also encourage publishers to add editing to the list of items to be bypassed in the book production process, but doing so would remove one of the few remaining justifications for traditional publishing.

The most likely result would be the influx of contracts. Today, most publishers still work on the handshake basis; that is, they contact an editor and ask if the editor is available, tell the editor what is wanted, and send the manuscript for editing. Sometimes a purchase order is included. In return, the editor edits the manuscript, returns it with an invoice, and receives timely payment. Welcome to the world of 99% of publishers and editors.

The problem is the 1% with whom a handshake is like striking a bargain with the devil who has its fingers crossed behind its back. They promise payment in 30 days and then when the work is done tell you it will be 6 months. Or they tell you how much they love your work until the invoice arrives, at which point they tell you how bad your work is and want you to reduce the invoice. Or they tell you the manuscript is 250 pages and only requires a very light edit when the reality is it is a 400-page manuscript that requires a very heavy edit because the author’s English language skills are virtually nonexistent.

With the 99% of clients a contract or a handshake means the same thing and either will work. With these clients the issue of the editor’s copyright interest never arises. Even if they hate your work, they will pay your invoice on time and just not call again. Paying your invoice costs less than 2 hours of attorney time, so business sense dictates payment.

With the 1% of clients neither a contract nor a handshake has any meaning. It is with these clients that one must be prepared to use the complete arsenal available to collect for work done. Unfortunately, we often don’t discover that a client is part of the 1% until the work is done (perhaps a particularly good reason to bill and get paid in instalments), at which time the 1-percenter thinks we are over the barrel. It is with these clients that the copyright claim is most effective and should be invoked.

Do editors have a copyright interest in the edited version of the manuscript? Maybe, maybe not, but it is a weapon in the editor’s collection arsenal that should not be ignored.

[Addendum added August 30, 2017: If you have a contract with a client that specifically states that you retain a copyright interest until paid in full, that clause is enforceable under contract law — it is no longer a copyright question. Copyrights are transferable and saleable property. Recall that in olden days, by contract, authors assigned copyright to publishers or movie studios or record companies and it was the publisher, the movie studio, the record company that enforced copyright. The change — that is, the author keeping copyright — began in the late 1960s and became standard in the 1990s. However, authors are still free to assign copyright as they wish via contract.

The main essay above focuses on those instances where there is no contractual provision assigning copyright pending payment to the editor. Best practice is to include a clause in your written contract as there is no question about the enforceability of such a clause.]

Richard Adin, An American Editor

3 Comments »

  1. “Recall that in olden days, by contract, authors assigned copyright to publishers or movie studios or record companies and it was the publisher, the movie studio, the record company that enforced copyright. The change — that is, the author keeping copyright — began in the late 1960s and became standard in the 1990s. However, authors are still free to assign copyright as they wish via contract.”
    This is not true in trade publishing, where the author owns the copyright and licenses publication to the publisher. How do I know? I was an editor in book publishing from 1963 to 1970, four years at Harper & Row and then four at Fawcett, which Random House later acquired) and prepared the front matter for the trade books. See the Authors Guild on the topic (paragraph three):
    https://www.authorsguild.org/industry-advocacy/authors-keep-your-copyrights-you-earned-them/

    Like

    Comment by patmcnees — August 30, 2017 @ 9:11 am | Reply

    • It may not have been true where you were, but it was true at other publishing houses. It was certainly true at the publishers for whom I worked. But whether licensed or transferred by contract for a set period of time, the effect was the same.

      Like

      Comment by americaneditor — August 30, 2017 @ 10:55 am | Reply

  2. I spent almost an hour on Monday trying to explain copyright to the self-publishing author of a business book. His misconceptions were kinda fascinating. Thank goodness he asked me before spending money unnecessarily.

    Like

    Comment by Ruth E. Thaler-Carter — August 30, 2017 @ 12:05 pm | Reply


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