CHILDREN’S BOOKS PUBLISHING: Some Issues

(Revised 2019)

Ivan Hoffman, B.A., J.D.

          Publishing children’s books poses several issues that can take on potentially added significance compared to when those same issues are presented within the scope of non-children’s book publishing.  These issues are always important but what makes publishing children’s books so potentially valuable is that these books lend themselves to merchandising, cartoons, multimedia and trademark potentialities perhaps more so than do non-children’s books.  This can make the illustrations more important than the text.  Thus, these issues, as all other issues, must be addressed in a thorough, written agreement since no one can know, in advance, which book will become the next hugely successful series of books or have characters that make millions of dollars from such merchandising deals such as pillow cases, motion pictures, cartoon series and so on.  Failure to look with vision, failure to plan for success, may result not in success for the publisher but in regret that someone else is reaping the substantial rewards of a successful book.   Read “What Can Happen To Your Project If You Don’t  Plan Ahead?”

          For simplicity, this article assumes that the contributions of the party or parties not the publisher are as to both text and illustrations including cover art.  If there is a separate cover artist, then a separate agreement should be entered into.   Read  “The Cover Artist/Illustrator Contract.”  The article further assumes that the party creating those elements is not a bona fide employee of the publisher.  Read “The Fundamental Principle Under the United States Copyright Act.”   As you will see below, these creative elements can be contributed by either the same party or 2 or more separate parties.  There can also be copyrightable contributions made by editors as well and these too should be covered in a separate agreement since a publisher must acquire exclusive rights from an editor in the same manner.  Read “The Book Editor Contract.”   There may be other parties contributing protected materials and appropriately thorough agreements should be entered into with them as well.  But I will limit my discussion to the above writer and illustrator since that arises most often.  The references to “agreement” or “publishing agreement” refer to the agreement by which the publisher seeks to acquire rights to the work of those parties. 

          Editorial Note: This article is written from the point of view of a publisher and from that point of view.  Some party has to own the rights and there are no absolutes in terms of which party “should” have certain rights, receive certain income etc.  There are no “standard” agreements when it comes to creativity.  Read “Standard Contracts.”  And there is no such concept as “fair” in deals such as this.  What is “fair” to one side is “unfair” to another.  As indicated below, just because one party owns the rights, the other party can negotiate to be paid on those rights.  But it is up to each party, in the exercise of his or her or its personal responsibility, to negotiate agreements that are in that party’s interest. 

Some of the Issues 

          There are many issues involved in any such agreement and it is not the purpose of this article to explore them all.  I would like to focus instead on some but not all of the issues that are of particular importance in a publishing agreement for a children’s book. 

          The Grant of Rights.  The creator of any copyrightable work, in this instance, the illustrations and/or text (including contributions made by editors), starts out owning all rights of copyright in that work.  The Copyright Act provides in part: 

201. Ownership of copyright 

(a) Initial Ownership.—Copyright in a work protected under this title vests initially in the author or authors of the work.  

          Thus, if the publisher is to acquire exclusive rights to the said illustrations/text, it can only be via a valid, written transfer agreement signed by the creator or creators.  As indicated above, this presumes that the relationship is not one of bona fide employment.  Thus the scope of the granting language is all important.   

          What none of the parties want is a situation in which the rights are not clearly stated or in which there is no sufficient written agreement covering the same.  This creates a nightmare, both legally and from a marketing standpoint.  Read the series of articles on my site under the titles “A Legal Nightmare: The Unwritten License” and “Precise Contract Language.” 

          As noted above, just because the publisher may end up by agreement owning all the rights does not mean that the writer, artist, illustrator or other parties cannot participate in the revenue derived from those rights.  If those parties, having granted all rights to the publisher, should negotiate to be paid from the exploitation of those rights.  Keep in mind that the 2 provisions--the grant and getting paid from each aspect of the grant--are not “givens” and it is up to the granting party to make certain that both aspects are included in the agreement.   Read “Precise Contract Language.”  

          But it is very important to note that without the underlying written and signed grant to the publisher, the publisher does not acquire those exclusive rights (see the discussion above).  And the most unfavorable situation is where there is uncertainty as to the rights.  In such an instance, rights and perhaps the entire project can be put into a legal limbo and may not be able to be exploited.  So it is up to the publisher to affirmatively acquire the rights or lose out.  This has to be done with care and specificity and conversely, the granting party must be sure to have provisions giving that party a share of the income therefrom.   

          Ownership of the Copyright.  Related to the issue of the grant of rights above is the issue of which party is going to own the right of copyright in and to that party’s contribution.  Read “Who Shall Own the Copyright in a Book Publishing Agreement?”   Often an uninformed publisher is tempted to call a relationship a work made for hire relationship and presume that that is the end of the matter.  In fact, a work made for hire requires a number of specific conditions to be valid including but not limited to that the publisher must have “specially ordered and commissioned” the contribution.  Thus, if a contributor has previously written the text and/or drawn the illustrations and then approaches a publisher, that relationship may not qualify as a work made for hire.  Read the several articles on my site dealing with “Works Made For Hire” as well as “The Stupidest Law Ever Enacted.”  No matter which way the copyright ownership issues shakes out, it is important that the agreement cover the rights of the parties between them.  This is often a very overlooked set of provisions and should include issues about derivative works, restrictions on the use of the copyright, if appropriate and other similar and related issues. 

          Ownership of the Rights of Trademark.  Issues relating to trademark rights in characters and the ability to register the same are beyond the scope of this article.  What is important however, is that these rights be expressly covered in the publishing agreement and exclusive rights to the same clearly transferred to the publisher since the rights in trademark can be of extreme value in the marketplace and for a long, long time.   Read the numerous articles about trademark on my site.

         Revised Editions and Next Book Provisions.  Related to the above issues is the always thorny issue about rights to revised works.  Clearly a successful book can result in further books in the series along with consequent issues related to the rights to those further books.  The agreement must deal with these issues in a through manner so that there is no confusion about what an author, artist, illustrator or other parties can do in the future if he or she has granted certain rights to a publisher.  If the publisher has multiple grants from individual author, artist, illustrator or other parties, the resolution of these issues can become more difficult.  Read “Next Book Provisions in Book Contracts” as well.    

          Internet Use.  There are severe penalties for the failure to comply with the Children’s Online Privacy Protection Act (COPPA).  If you have a web site that is subject to the requirements of that law, which seems apparent that you would if you are a children’s book publisher, you must comply with these rather stringent requirements.  These full dimension of these issues is beyond the scope of this article.  Read “The Children’s Online Privacy Protection Act” and “Verifiable Parental Consent Under COPPA.”  

Conclusion 

          The above are just some, but certainly not all, of the issues that can arise in any publishing situation but specifically in regard to children’s book publishing. All publishers (as well as writers and illustrators and other parties) should review the agreement carefully or have the agreement reviewed by an experienced publishing attorney.   

          I am constantly amazed at how many publishers contend that they want to be successful but end up setting themselves up so that they can only fail.  The writing and publishing of children’s books is one such instance.  The way many publishers set up their agreements creates a situation where if the book is a failure they lose but if the book is the one in a hundred that is successful, they lose as well since they have failed to adequately acquire and preserve their agreement and intellectual property rights.  Thus the attempt at “saving” money can turn out to be enormously expensive.  Read “The Do It Yourself Publishing Lawyer.”  

          All that could possibly have been avoided through the exercise of vision and planning for success.  And through the use of thoroughly drafted agreements covering the many issues that can arise in a complex relationship.   

          Read “The Need for Vision,” “What Business Are You In?,” “Private Laws” and “Set to Fail.”

Copyright 2002, 2019 Ivan Hoffman.  All Rights Reserved. 

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States laws but the laws of other countries may be different.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.  

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author. 


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