Today I had the awesome experience of hanging out with humpback whales while surfing, which made me incredibly happy (wait…what blog post am I writing here). So why not write about something else that makes me happy–writers being published. And anthologies are a great way to do just that.
For writers contributing to an anthology, the opportunity is an excellent way to gain exposure and a sense of achievement, enhance publishing credibility, reach new readers, and build literary citizenship with other authors. For publishers, whether the anthology is traditionally published with an editor, self-published by an author or group of authors, or even published by a writing organization or charity, anthologies are an excellent vehicle to promote their authors or organizations, or make money for a good cause.
If you are an author contributing to an anthology, or a publisher creating one, here are a few legal points to help both author and publisher reach a happy middle ground when negotiating an anthology contract. As with any publishing contract, have a publishing lawyer review the contract to make sure it meets your publishing needs.
There are two copyrights to consider with anthology contracts: one is owned by the author; the other, the publisher.
Under the copyright law, protection is given to compilations of pre-existing work (also known as “collective works”), such as anthologies, newspapers, magazines, and other periodicals where copyright protected materials are combined into a collective whole. The anthology editor selects, organizes, and arranges the pre-existing work in a way that constitutes an original work of authorship. The publisher owns the copyright in that collective work.
The collective work copyright should not be confused with the copyright owned by the author of the pre-existing work chosen for the anthology. The author in an anthology retains the copyright in the pre-exiting work. An author should never transfer the copyright in their work to the publisher of an anthology, and the publisher should never request it (although it does happen, so read the contract carefully). The author should request that the publisher agree to list a proper copyright notice on the author’s work (on the first page of the author’s contribution).
The publisher does not need a complete transfer of rights in the author’s copyright to create the anthology, only a limited license from the author if the pre-existing work is to be published in the anthology. A limited license should never prevent the author from publishing the work in other formats, or other anthologies and collections, including collections of the author’s own work. If an author assigns a complete transfer of their rights in the copyright, the author will be prevented from publishing elsewhere, unless given permission from the publisher.
What type of limited license does the publisher need? The short answer is enough rights to publish and sell the anthology. The long answer depends on the particular facts and circumstances.
Grant of Rights Clause
Typically, the grant of rights clause in an anthology contract will state that the author grants to publisher the publication rights in the work for publication in the anthology. The contract language should limit the publication rights to the name of the anthology (not just any anthology). For example: the contract language might read: “publication rights in The Best American Short Stories 2018 anthology,” or “the anthology publication rights in The Best American Short Stories 2018 anthology,” or some variation of these phrases.
The grant of rights clause can be limited by a few other factors, like first print rights or non-exclusive print rights, language, territory, and format.
- If the publisher wants “first print rights,” it means they want to be the first to publish the work before the work is published elsewhere. If so, the contract language might read: “author grants publisher the first publication rights for publication in The Best American Short Stories 2018 anthology,” or “first anthology publication rights in The Best American Short Stories 2018 anthology.” If the work has been published before the anthology, then the contract language will need to use language to reflect that, like “author grants publisher the non-exclusive publication rights,” or “author grants publisher the second publication rights,” or some variation of these phrases.
- Often the grant of rights clause will be limited to publication in English. For example, “author grants publisher the first English-language publication rights,” or “author grants publisher the non-exclusive English-language anthology rights.” Again, it depends on the circumstances surrounding the anthology. If translation rights are not part of the contract, then the grant of rights clause should be limited to English-language publications of the anthology. If translations rights are negotiated, tie the contract language to translation of the complete anthology, not just the author’s contribution. That way, the contribution cannot be translated and sold separately.
- Territory can also limit the grant of rights clause too. Most anthology publishers tend to stick to the US market, but some may want broader territory rights. For example, “author grants publisher the first world anthology rights,” or something a little more restrictive like “author grants publisher the first English-language world publication rights.” Rarely do publishers translate anthologies, mostly due to high cost and low return.
- Publishers will want to publish the anthology in both print and electronic formats. The license should be clear about what formats are part of the grant of rights.
Ongoing Publication Rights
The publisher will need ongoing or continuing publication rights to reproduce the author’s work in the anthology. An ongoing publication right allows the publisher to produce reprints and future additions of the anthology. Ongoing rights should be limited with language like “publisher has the continuing non-exclusive right to reproduce the work in the anthology or print the work in further additions of the anthology.” Make sure the continuing non-exclusive rights are tied to the specific anthology, not any anthology.
Publishing Exclusivity Period
Sometimes the publisher will want the author to wait a specified amount of time after the anthology publishes before the author publishes the work elsewhere. Such a request should only restrict the author from publishing the work for a short period, usually no more than 30 days to 18 months after the anthology publication date (although in my opinion, no more than a year of exclusivity is reasonable).
Publishers do not need subsidiary rights other than what is listed above. Subsidiary rights include (besides anthology rights) film, TV, translation, foreign distribution, and merchandising rights. Authors contributing to anthologies should not license these type of rights to the publisher since only the anthology subsidiary rights are needed to publish the anthology.
As for revisions to the contributing work, the contract should restrict the publisher from making major alterations to the contribution without the author’s written approval. Publishers, however, should have the right to make minor copyediting changes. Make sure the publisher is required to provide a proposed final version of the contribution prior to publication of the anthology, with a time limit for the author to review the text and return any corrections.
Depending on the publisher, some authors are paid a royalty, which the contract should define. Typically with most anthologies, an author is not paid for their contribution. Publishers should not require the author to purchase copies of the anthology (and should provide the author with a specific number of free copies of the anthology, as well as additional copies at a reduced rate, especially if the author is not paid for their contributing work). Authors should not be required to pay to publish work in an anthology, unless the anthology is produced by a group of writers who are splitting the cost of publication. Publishers are in the business to make money and should absorb the cost of publication.
Obviously a publisher must market the anthology. It makes sense that the author grants the publisher the right to publish, in print or electronic format, short selections from the anthology for publicity purposes. Likewise, it makes sense that the author grants the publisher the right to use the author’s name, image, likeness, and biographical material for advertising and promotion of the anthology.
Anthology contracts usually include warranty clauses similar to what is found in book publishing contracts. Authors should warrant that they hold the rights to the contributing work and the full power to grant such rights to the publisher, that the work does not contain libelous material, and is not in violation of any rights of privacy.
There are a few sample anthology contracts on-line. As with most legal forms, one contract never fits every scenario. If you use a sample contract found on-line, adjust the language as needed for your particular circumstances. As I noted above, have a publishing lawyer review the anthology contract, whether you are the publisher creating the anthology or an author contributing work, to make sure the contract meets your publishing needs.
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.