Q. I currently have two manuscripts that I am trying to place. One is a collection of essays, the other a memoir. The collection includes an essay called “Relief.” The memoir grew out of this essay, whose contents are dispersed throughout the memoir’s four main sections. The total number of words from “Relief” comprises approximately 7 percent of the entire memoir.
1. If a publisher takes the memoir first, would a second publisher need to acquire rights to reprint the essay in the collection?
2. If a publisher takes the essay collection first, would a second publisher need to acquire rights to reprint the parts of “Relief” that are included in the memoir?
A. The best way to handle your concern is not via a lawyer’s analysis of whether publication of the second book (whichever it is) violates the copyright in the first book or is permitted because of the “fair use” doctrine, even if the lawyer doing the analysis is a specialist in copyright law. Questions of “fair use” are frequently subjective rather than objective. Lots of money is spent in lawsuits where both sides are convinced they are right and have written memoranda from their respective lawyers saying why. It is far better — less expensive, less emotionally distressing and more certain — to resolve the matter in the contract with the publisher with whom you sign a contract first, regardless of which book it is for. This will avoid any unnecessary misunderstanding or dispute, as well as any question as to whether publication of the second book violates the copyright of the first book or whether the second violates the typical provision in a publishing contract which prohibits an author from publishing competing books.
If the publisher of the first book (whichever it is) agrees with you that the second book does not compete with the first, then the way to handle your concern from a contractual viewpoint is to insert a paragraph in your contract for the first book that says (i) nothing in the contract prohibits you from publishing the second book, and (ii) if anything in the second violates the copyright in the first, permission is granted to you to publish the second upon whatever terms you decide on with its publisher.
You should consult a publishing lawyer to draft the precise language for you since there are several ancillary items that should be covered in the provision, e.g., that the right to publish the second book includes both the right to publish it yourself and the right to license publication rights to others; the extent to which the manuscript for the second book may be revised and still be considered the same version for which the first publisher is giving its permission; that the right to publish the second book is not a one-time right but extends to multiple editions, whether published by one or different publishers, and in English or in translation.
(Although some might question how one book you wrote could violate the copyright in something else you also wrote, the answer – implicit in your question – is that once you have granted the first publisher the right to publish your book, that publisher must grant permission to you and the second publisher in order for the second book to be published since the first publisher, in essence, now shares the copyright in your first book. Otherwise, you would be unable to warrant to the second publisher, as typically required in publishing contracts, that nothing in the second book violates the copyright of any other book.)
For the purpose of this answer, it makes no difference which of the books is published first.
Without seeing the two books, I’m reluctant to say whether anything in one would violate the copyright in the other. Once you get a publisher interested in either book, and assuming that publisher won’t add a section to your contract like the one I suggest (which would effectively sidestep the issue but still accomplish what you want by mutual agreement, a less expensive and more conciliatory approach), you could then consult an experienced copyright lawyer if you wish to proceed. My initial reaction, however, is that publication of the second book—whichever it is – would violate the copyright of the first. Keep in mind that the percentage of one work used in another is only one criterion for determining whether permission is needed or whether the “fair use” exemption applies and, generally speaking, should not be relied on as the sole factor in determining that permission is not required. Moreover, note that the language relating to this factor in Section 107 of the Copyright Act is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” not the percentage of the second work that the copyrighted work (in your case, the essay) constitutes. Indeed, from what you write, 100 percent of a complete, copyrighted work – the essay “ Relief” — appears in the memoir; the 7 percent number – the percentage that the essay bears to the entire memoir — is irrelevant for purposes of this test.
(Originally published in the Winter 2008 issue of the Authors Guild Bulletin. © Mark L. Levine)
Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.