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.

July 8, 2015

The Commandments: Thou Shall be Businesslike

by Ruth E. Thaler-Carter

The value of presenting an editorial services entity as a business has been discussed here several times. A dreary, rainy day of doing more business tasks than actual editing, writing, or proofreading led me to think about what it means to be, and be seen as, a business.

As has, again, been said before, many freelance editors see ourselves as individuals providing services to clients and value our image as individual, independent, freelance workers. We see ourselves as professionals in terms of our training, experience, skill level, and ability to do what our clients need to make their publishing activities better. Many — maybe even most — of us, though, don’t want to be seen as companies or even formally as businesses. There’s a sense that our individualness is something to cherish and that it doesn’t quite fit with the idea of being “a business.”

But being an individual freelancer doesn’t have to mean appearing to be unbusinesslike. And being businesslike, or presenting ourselves as businesses, doesn’t have to mean being a company with employees or subcontractors. You can be an individual editor and still have a businesslike image.

Rich Adin, An American Editor, has laid out several of the factors he considers essential to being seen as a business: regular work and access hours, a formal phone greeting, etc. (For additional views, see the list of select related AAE essays at the end of this essay.) Here are some of the factors I see as helping an individual, whether freelance writer, editor, proofreader, indexer, whatever, present a businesslike front to the world.

  • Business name: Even if you function as a sole proprietor, it probably looks better to have a company name. I’ve been doing this so long as an individual that I can usually get away with being seen simply as Ruth Thaler-Carter, Freelance Writer/Editor, especially because I started out more as a writer than an editor or proofreader. If I were to start out today, though, I’d use something other than my own name as the identity of my business. I have had a couple of clients request that I provide a business name, so my business checking account has one so I can deposit checks regardless of how they’re made out.
    Your business name should say something about what you do. Poetic names like “Blue Horizons” are all very well, but they don’t tell prospective clients what services you offer, so they won’t help you gain new projects or be visible on the Internet. Blue Horizons Editorial Services, sure.
    Opinions vary on what to call ourselves. I have no problem with being called a freelancer, but some colleagues prefer to use consultant, contractor, entrepreneur, or even (business) owner.
    Opinions also vary about whether to incorporate. This is something worth discussing with an accountant or tax professional.
  • Website: A businesslike editor will have a website, and it will look polished and professional. No amateur snapshots of the editor with kids, cats or dogs, messy desks; no photos of someone other than yourself pretending to be you. No irrelevant information. Easily navigable. Information about your background, training, experience, skills, and why someone should hire you. Whenever possible, examples of your work or, if that isn’t doable, strong testimonials from clients.
  • Work samples: A businesslike freelancer will have a way to present work samples to potential clients without violating the confidentiality or egos of past and present clients. This is more of an issue with editing and proofreading services than with writing; after all, most writing work is meant to be published and seen, while much editing or proofreading work is meant to be invisible. The finished product is what matters, and most clients don’t want the world to see what a mess their original versions were before we made our improvements. Always ask before making editing/proofreading samples accessible; use only excerpts that don’t identify the client; look for other ways to present your skills, such as testimonials and references from clients who have been happy with your work.
  • E-mail address: A businesslike editor will have a domain-based e-mail address. Using Ruth@writerruth.com or owner@FreelanceWhatever.com looks more professional and more businesslike than Ruth@gmail.com or FreelanceWhatever@aol.com. Sending e-mail from your domain-based account also might get messages through when major servers like AOL, Hotmail, Juno, etc., experience blockages for some reason. Having such an e-mail address also means you can change service providers every other day without having to notify dozens, if not hundreds, of colleagues and clients of a new address.
  • E-mail signature: Every e-mail message you send should include a signature (sigline). Opinions vary about what it should include; mine has my full name, business name, e-mail address, website URL, Twitter handle, reference to a booklet I’ve written and self-published, and a separate line with the name of the business through which I host an annual conference for freelancers. My e-mail program includes it automatically in every message I send. The only time I have to think about it is when I want to use variants, also stashed in the appropriate area of my e-mail program, that relate to my roles with organizations or clients/projects. Some colleagues include phone numbers in their siglines; I don’t do that much phone contact with clients, so I don’t include my number, but it is on my website and in directory information (yes, I still have a landline), so it’s easy to find when needed.
  • Phone: A businesslike freelancer can have either a landline or a cellphone/smartphone, but whichever you use, will answer it in a businesslike manner. I usually say “Good morning/Good afternoon, this is Ruth,” but some colleagues swear by “I can write about anything®, this is Ruth. How may I help you?” Either way, go beyond a plain “Hi” or “Hello” to let callers know whom they’ve reached when they call you. A businesslike editor also makes sure that their adorable five-year-olds or clueless spouses don’t answer their business phones; that callers don’t have to strain to hear them against background noise of barking dogs, loud TVs, clinking dishes being washed, or intrusive music.
  • Queries, job-listing responses, proposals, and pitches: A businesslike freelancer takes a little extra time to make every query, response to job-list opportunities, proposal, and pitch as perfect as possible. That starts with doing at least nominal research on the publication or potential client before pitching/querying ideas for articles so all are relevant to that publication, and only responding to job listings for which the freelancer actually is qualified. It also includes proofreading all such items before sending them; if necessary, having a friend or colleague take a look at them first.
  • Tools: We’ve talked here several times about the importance of having the right, and many times the most-current, tools for the freelance or editing job. This includes soft- and hardware; backup systems; style manuals to back up editing decisions; even business cards that go with you everywhere. Backup in the sense of equipment or files is one thing, by the way; in terms of coping with a crisis is another. A businesslike editor has colleagues to turn to if illness or injury — your own or that of a child, spouse, sibling, parent, or good friend — interferes with meeting a deadline.
  • Finances: The businesslike editor sets rates appropriate to the editor’s experience and skill level; has a business checking account and credit card for business-related expenses and payments; and has a savings cushion so the editor doesn’t have to beg to be paid earlier than usual or accept projects at rates well below the norm. It’s also important to present requests to resolve late payments in terms of being paid because of having done the work, not needing the money to pay the mortgage.
  • Invoices: A businesslike editor will have invoices that look official and go out promptly on completing a project. They will have all the necessary information to make it easy to get paid — an invoice number; your name; your mailing address and e-mail address so clients can choose between sending checks or paying online; your payment terms; any late fee terms you choose to use; perhaps a statement that the edited version of the work belongs to you until you’ve been paid.
  • Memberships: The businesslike editor will belong to associations or organizations that offer useful benefits such as job opportunities, educational programs, interaction with colleagues, and more — all aspects of being a lifelong learner and professional.

What all this boils down to is that, regardless of whether you want to be a sole-proprietor freelance editor or the owner of an editing company, Thou Shall Be Businesslike in all you do. What else do you do to present a businesslike persona?

Ruth E. Thaler-Carter is an award-winning freelance writer, editor, proofreader, desktop publisher, and speaker whose motto is “I can write about anything!”® She is also the owner of Communication Central, author of the Freelance Basics blog for the Society for Technical Communication, and a regular contributor to An American Editor.

Select Related An American Editor Essays:

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