The statutory termination right: One copyright act provision your publisher hopes you never hear about

In the fall of 1977, Ralph Little had just received his Ph.D. in Elfin Studies and was beginning his first faculty job as an assistant professor at Middle Earth College. Elfin Studies was in its infancy – many universities did not even recognize it as a legitimate discipline — and there was no introductory textbook on the market. Each week Ralph prepared lecture outlines on ditto masters for the dozen intrepid undergraduates in his Elfin Studies 101. When a representative of Colossal Publishers, Inc., came by his office, Ralph, sporting the sideburns and bell-bottoms of the day, told him about his idea of writing an introduction to Elfin Studies.

Soon afterward, Colossal offered Ralph a contract to write his Introduction to Elves, for a royalty of 5 percent of Colossal’s receipts on every copy sold. The royalty sounded almost as diminutive as the subject matter. But Ralph was thrilled to become a textbook author, and the editor promised him that when the book came out, he would be invited to Colossal’s Midwestern sales meeting in Minneapolis. He signed the contract early in 1978, and the first edition was published on January 10, 1980.

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Q&A: What to consider when recycling content from writing project to writing project

Q: “A general question: You are writing a book — in one chapter, you wish to include information that you have used in another book with another publisher. What is the rule of thumb — if there is one — about how much information can be used and/or the level of changes necessary?”

A: Jay Devore, Professor Emeritus, Department of Statistics, Cal Poly State University, San Luis Obispo:

“I’ve been thinking about this issue because a colleague and I are thinking about collaborating on a business statistics book (introductory statistics for a business audience). I have written statistics books for engineers and also for a general audience — 4 in total, all published by Thomson. But Thomson (actually their subsidiary Southwestern) already has a full stable of business stat books, so may not be interested in publishing another one.

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Q&A: Should you create resource materials for a textbook to sell commercially?

Q: “Is permission needed from a publisher to develop resource materials for a textbook if those materials will be sold commercially or is it just necessary to have a disclaimer?”

A: Elsa Peterson, a freelance editor with 25 years of experience in the college textbook industry:

“I’ve done a fair amount of permissions editing over the years, which doesn’t equip me to give a comprehensive answer to your question, but I’ll give you my perspective. I think there are a couple of different points to address here.

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Q&A: What is the likelihood of a textbook publisher ‘cloning’ your textbook?

Q: “I am working on a different kind of developmental mathematics textbook. It is very difficult, nowadays, to distinguish between current Mathematics textbooks. Mine looks, feels, and reads in a very different unique way. I’ve presented it to one publisher and they are interested. I know that it is to my advantage to approach other publishers, however, should I be concerned that if I do, that they will ‘clone’ my text?”

A: Michael D. Spiegler, Ph.D., Professor, Department of Psychology, Providence College:

“If you have a good way of approaching the subject matter, others will imitate once your book comes out. You may have an edge as the original. And you’ve made a contribution to the students in your field beyond just your book. It may be possible to get a publisher to sign an agreement stating that they will not come out with a book that clones yours for a given time period. I’ve heard of this being done with other ideas and industry. I’d suggest you consult with a good intellectual property lawyer on this idea. And remember, imitation is the highest form of strategy (or something like that).”

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Q&A: Tips on copyrighting your completed textbook

Q: “I have recently completed a textbook, and am searching for a publisher. Should I have the book copyrighted?”

A: Mary Ellen Lepionka, author of Writing & Developing Your College Textbook: A Comprehensive Guide:

“You can, or the publisher can do that for you in your name. The publisher typically pays the fee and sends two finished copies to the Library of Congress when the book is out. Request that the publisher register the copyright in your name, which is normal unless you have permanently assigned copyright to the publisher. My understanding is that in signing the publishing contract you do assign exclusive copyright use to the publisher (hopefully for a specified time rather than indefinitely), after which rights can revert to the author. However, an original work is ultimately, automatically, the property of its author or creator, which is a separate function from granting rights.

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Q&A: How to get your textbook rights back from your publisher

Q: “My publisher has decided to drop my books. How can I tell from my contract whether this means I could get another publisher to pick them up for a new edition, vs. writing a totally new work?”

A: Steve Gillen, Attorney, Wood, Herron & Evans:

“Most publishing contracts have a ‘reversion’ or ‘out-of-print”‘clause that requires the publisher to return the rights to a work to the author if and when the publisher takes the work out-of-print. Sometimes this right of reversion is triggered automatically. More frequently, however, the author must request the publisher to execute a copyright assignment. The more problematic issue is likely to be at what point does the right mature — i.e., when is the work “out-of-print.” Look to the language in your contract for the answer to that question.”

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