by Gina Burgess
General things for authors to know about Copyrights…
Brief summary of copyright protection:
When an artist creates a work of art, this art has a copyright. The copyright is a form of protection that is granted by the U.S. Congress. Essentially, the writer of a book has the right to
- reproduce the work (make a copy)
- prepare derivative works (i.e., a series of books like the Roselli and Isles series or characters in a series that you created)
- distribute copies to the public by sale or other transfer of ownership, by rental, lease or lending; (sell print rights such as song lyrics and music)
- perform the work (i.e., sell the rights to have a movie or TV show based on it);
Essentially an author engages in a sale of intellectual property which is known as the rights of distribution.
Rights of Distribution are what you sell when you give a publisher the right to sell your book. The contract is between the publisher and the distributor, not between the author and the distributor. Even though the author holds the copyright, the distributor has the right to sell the book to retailers. Everything over cost is paid to the publisher, and then the publisher pays the author the royalties agreed upon in the contract between the author and the publisher.
Authors who were published by Tate Publishing have learned the hard way that once you are published, all is not a cake walk. You run the risk of losing everything if the publisher goes out of business. And the publisher can be in business for more than a decade and still fold. It’s worse if the publisher goes bankrupt. The problem is the publisher’s creditors trying to retrieve their losses by taking YOUR royalties. However, a lot depends upon the state the publisher is registered in to operate.
The best thing is to Do Your Homework before signing the contract. Signers beware. In most states, ignorance of the law is no excuse. Therefore, know what the law says about contracts, or get your attorney to explain to you EVERY clause in the contract. If your attorney doesn’t know anything about the state where the publisher is, then research it on the Internet. It is not rocket science. Type into your browser the State and the words Contract Law. Several sites will come up. Take the time to read! Then you will know if creditors have the right to acquire your distribution rights and your royalties in order to pay them what the publisher owes them
Here are some things I learned about Oklahoma Contract Law:
Information about Author’s rights when a publisher files bankruptcy in Oklahoma (Tate Publishing):
- 23-2. Damages as relief from forfeiture.
Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful or fraudulent breach of duty.
In other words, it is entirely possible that Tate will never have to compensate its authors any royalties because it could prove the losses it incurred caused it not to be able to pay royalties, therefore it was not a willful or fraudulent breach of contract. I’m not saying that is the case, just that it is possible.
- 15156. Real intention not expressed. Error to be disregarded.
When through fraud, mistake, or accident, a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing disregarded.
In other words, if you could prove that Tate intended NOT to pay royalties then the intent would rule. That is hardly likely to happen.
- 15-217. Restraint of trade.
Every contract by which any one is restrained from exercising a lawful profession, trade or business of any kind, otherwise than as provided by Sections 218 and 219 of this title, or otherwise than as provided by Section 2 of this act, is to that extent void.
If a contract has been formed and one party fails to perform on the contract which results in damages, the damaged party may sue for breach. “Accompanying every contract is a common law duty to perform the contract with care, skill, reasonable experience and faithfulness the thing agreed to be done. A negligent failure to perform these duties is a tort and a breach of contract.” Leak-Gilbert v. Fahle, 55 P.3d 1054, 1059 (Okla. 2002)
The above is saying that your contract is breached, Tate’s creditors can go after your royalties to recover their losses because of the distribution rights. IF you sign the contract termination then creditors cannot distribute your work and keep your royalties in order to recover their losses during the course of bankruptcy.
In other words, you have this very strong leg to stand and balance upon. There is nothing according to Oklahoma law that can keep you from republishing your book or books: past, present, and future (if you signed a lifetime contract with Tate). Even if you do not sign the contract cancellation.
There is always the choice of self-publishing your books. We at Authors Community are happy to help you and to teach you how to do this as quickly or as slowly as you desire. You have the work of astounding virtuosity. We have the skills to help you get your works into the hands of your readers. We’d love to work together to achieve your publishing goals.