An American Editor

May 24, 2019

Thinking Fiction: Protecting an Editor’s Rights — If Any

By Carolyn Haley

A subject that comes up from time to time in publishing circles is whether an editor has any copyright interest in an author’s manuscript — that is, the edited version of the manuscript. Some editors believe the edited version is unique to them and forms a new and different work, which can give them leverage in demanding payment from a recalcitrant party.

I first saw this tactic suggested as a last-ditch measure against publishers that don’t play fair — those that pay late or try not to pay at all. I’ve since seen editors adding language to the same effect in their contracts with independent authors, to protect themselves from clients who change their tune after the job is done and refuse to pay, or take way longer to pay than was agreed. As part of the language, the editor’s claim to having a copyright in the edited version becomes null and void upon receipt of full payment.

In my opinion, attempting to conflate copyright with payment is irrational and unprofessional, regardless of whether a given case is winnable in a court of law. My opinion comes from my combined position as an author, an editor, and a self-employed business entity.

How Copyright Works

Consider first that copyright applies to intellectual property. Per the U.S. Copyright Office, it pertains to “original works of authorship fixed in a tangible medium of expression.”

“Original” and “tangible” are the key terms, because ideas themselves are common and fluid, and expressed in myriad ways by myriad people, and have been so over centuries, if not millennia. Copyright law only protects an individual’s unique presentation of an idea, not an idea itself. (Nor are titles protected by copyright.) In addition (italics mine), “copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.”

A work qualifies as derivative “if the changes are substantial and creative, something more than just editorial changes or minor changes. . . . For instance, simply making spelling corrections throughout a work does not warrant a new registration, but adding an additional chapter would.”

With those criteria in mind, how much does an editor have to change in a manuscript before it becomes a different enough “tangible medium of expression” to acquire uniqueness, and thus give the editor a copyright?

How Editing Works

Adjustments in punctuation, spelling, subtleties of phrasing, consistency — the tools of line editing and copy editing — all serve to clarify an author’s unique expression of their ideas, not change them. Perhaps developmental editing can get deep and gnarly enough to significantly change an author’s presentation, but does it change the book’s concept, audience, characters, or plot, or the author’s essential language and style?

If so, then the contract between author and editor should be about co-authorship, not editing.

The main thing to understand is that in an editing job, the author has the right to accept or reject the editor’s changes and suggestions. That gives the author ownership of the content by default. In some draconian contracts out there, an author may have signed away that right and must accept whatever a publisher’s editor or an independent editor does to the work — but in that situation, the author has made a regrettable mistake. In the absence of such contract terms, the agreement between author and editor generally is based on the editor helping improve the author’s work, not alter it.

Understanding Editing vs. Revising

Another argument against claiming copyright of the edited version of a work is the nebulous relationship between editing and revising. A manuscript is a work in progress until it’s locked into its published form and released. Until that point, starting with the first draft, most authors revise their work numerous times, and may have other parties, such as friends, family, colleagues, beta readers, editors, proofreaders, agents, and pre-publication reviewers — paid or unpaid — participate in the process. These helpers, individually and collectively, contribute to a version of the manuscript different from the one before, which is different from the one before, as often as needed to complete and polish the work.

Should each party in that revision cycle get a copyright interest in the work? Should the parties involved in the next cycle supersede them because a new, copyrightable version has been created?

What if the author desires to register their copyright after the first draft? Registration is not required for an author’s copyright to be valid, because copyright is automatically granted the moment a work is “fixed in a tangible medium of expression.” Registration is recommended to protect the author’s interests in the event of a legal challenge, but is not conditional for protection. Nonetheless, many authors register their copyrights because doing so makes them feel more secure. Imagine, then, what the paperwork and costs would be if they had to register every updated version of a work in progress, each one involving different people!

The whole idea is silly, because all editing occurs before a work is deemed complete. As such, it is subsumed into the overall development and revision process. Without a legal structure to define and support the many layers of building a publishable work, and the many people who might be involved, there is no basis for giving anyone but the author a copyright in the work.

The Alternative to Claiming Copyright

Having copyright-related language in editing contracts might be effective with publishing companies that employ accounting departments and lawyers, who fear legal action and can’t or won’t take the time to research the efficacy of defending copyright claims. Such language also might discourage individual authors from playing head games with independent editors.

More likely, the language would chase away independent authors of good will who are paying out of their own pockets for professional editing services, and who desire a personal, supportive, and honest relationship with their editors. Many writers have been coached by other writers or online gurus to fear that editors will steal, or drastically change, their work. Adding the threat of somebody claiming a copyright on their work will just reinforce their anxiety and give them a reason to look elsewhere — or go without editing at all.

In which case, an editor won’t have to worry about getting paid.

Getting paid does remain the bottom line. It can best be assured through transparency and a straightforward contract. My contract states: “Unless a co-authorship arrangement is made in writing, all royalties and monies gained from the sale of the book will be the sole property of the book’s copyright owner. Editor acknowledges no rights to the manuscript beyond the right to withhold delivery of the edited manuscript until final payment for work is received.”

In other words, the politically incorrect expression “no tickee, no shirtee” applies. I consider this a reasonable business position (i.e., I do the work, you pay me for it), and that claiming a copyright for something that isn’t mine is needlessly aggressive. It is also not trustworthy, owing to the copyright claim’s dubious enforceability and the specious element of “oh, that claim disappears as soon as you pay me.”

From an author’s standpoint, I wouldn’t hire an editor who would hang that kind of threat over me. My book is my book, and somebody who thinks they have the right to hijack it is somebody I wouldn’t deal with.

A Balanced Approach

Editing is — or should be — a cooperative profession, not an adversarial one. Editors stating plainly that they expect to be paid are declaring themselves professional businesspeople. Editors stating plainly that they are prepared to co-opt an author’s copyright are inviting trouble. Most publishers and indie authors will pay for services rendered. The minority who won’t pay are the reason that editors consider using the copyright-claiming ploy.

One way to avoid needing such a ploy is to require a deposit before commencing work. This usually isn’t an option for independent editors dealing with publishing companies, which state the terms that editors must take or leave. In such cases, editors need to weigh the pluses and minuses, negotiate the best they can, and be prepared to accommodate a loss should the project go awry.

When making deals with indie authors or amenable companies, however, editors should state their terms and stick to them. I have found that a signed agreement delivered with a 50 percent deposit demonstrates a client’s intention to pay. They go into the deal knowing that I will sit on the finished edit until they pay the balance, and if they don’t pay, they lose the work and have to start all over again.

In the event they don’t pay, I may have wasted time but not suffered a total loss. The less-than-expected final compensation might end up being a painful learning experience, but still, learning can’t be discounted. Meanwhile, I still have something in my pocket to show for the effort.

Nine times out of 10 (more accurately, 9.999 times out of 10), I end up with full payment on time, a happy client, an open relationship, and future work from the client or someone they refer. These benefits come from respecting authors’ work and position, and not messing with their heads. Better yet, their work goes to publication; and with luck and a good story, cleanly edited, they enjoy publishing success. I doubt I would have this track record if I made it a policy to step on their writerly toes.

How many of our readers have invoked copyright claims on edited work with authors who have not paid as promised and planned? Has it worked for you? What other techniques have you used to ensure being paid?

Carolyn Haley, an award-winning novelist, lives and breathes novels. Although specializing in fiction, she edits across the publishing spectrum — fiction and nonfiction, corporate and indie — and is the author of two novels and a nonfiction book. She has been editing professionally since 1997, and has had her own editorial services company, DocuMania, since 2005. She can be reached at dcma@vermontel.com or through her websites, DocuMania and New Ways to See the World. Carolyn also blogs at Adventures in Zone 3 and reviews at the New York Journal of Books, and has presented on editing fiction at the Communication Central conference.

3 Comments

  1. Well written, Carolyn, but, as you know, a perspective with which I disagree. I, for one, have used the copyright claim successfully against a top-tier publisher. But I think that there needs to be some clarification.

    I have never claimed a copyright interest in the author’s work. I have claimed an interest only in my own work on the manuscript. I have always made it clear that the author/publisher was free to publish the manuscript in its original form (ie, absent any of my interventions) or to take that original form and send it to another editor. What the author/publisher was not free to do was to publish or otherwise use the manuscript with any of my work included absent payment in full.

    Your argument is essentially based on the notion that what an editor does affects only the surface and not the underlying work and so is not entitled to copyright protection. I would argue that a highly skilled, professional editor does impact the underlying work as well as the surface. One notorious example is Harper Lee’s “To Kill a Mockingbird.” Compare the original manuscript with the edited manuscript and then tell me how little value, compared to the author’s original work, the editor’s work was.

    I have had authors complain about my position, just as you have, but my answer is simple: Simply pay what you owe me and extinguish my claim. I am not interested in being a coauthor or receiving royalties on the author’s megahit; I just want to be paid for my work. If I were a carpenter or plumber working on your house and you refused to pay me, I could file a mechanic’s lien. It doesn’t mean I own your house; it means you can’t sell your house with a clear title until I am paid. I view my editor’s copyright interest in my work as the editorial mechanic’s lien. Unlike with a mechanic’s lien, however, where ripping out newly installed plumbing isn’t really an option, an author has the option of reverting to the author’s original manuscript and starting over without benefit of my work.

    You also asked about other techniques. Another technique I have used is to make sure that if there is any litigation necessary that the only court with proper jurisdiction is my local state or federal court; in other words, if I need to sue a client who lives in California or if the California client needs to sue me, the lawsuit has to be filed where I live, not where the client is located. I have also made sure that arbitration is not a viable option.

    My AAE essay on an editor’s interest can be found here: “From the Archives: The Editor’s Interest: Copyright or Not” (https://americaneditor.wordpress.com/2017/08/30/from-the-archives-the-editors-interest-copyright-or-not/).

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    Comment by Rich Adin — May 25, 2019 @ 12:55 am

  2. I think I covered your position as one of the situations in which it can work. What worried me enough to write about it is the idea is spreading, and IMO it’s not the right approach in all situations, and there are some where it can backfire. Needs to be thought through fully no matter what context.

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    Comment by documania2 — May 28, 2019 @ 8:49 pm

  3. Thank you for this post, Carolyn! While I do agree that editors should be authors’ partners, not adversaries, I side with Rich Adin on this. I believe in retaining copyright of my own work on a manuscript until I’m fully paid—the author can elect to publish the original version at any time, and they of course retain full ownership of their work. I have no interest in being a co-author or “hijacking” someone else’s work, and I don’t believe that asking to retain copyright on my own additions to the text signifies either of those intentions. (I also probably wouldn’t choose to work with an author who assumed that that was my goal!)

    Like

    Comment by Molly McCowan — May 29, 2019 @ 11:07 am


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