Part 2
The present writer is a strong believer in the advantage to the author of remaining on a single publisher's list, provided the publisher has shown himself to be enterprising, and inclined to advance the author's interests simultaneously with his own. There are unquestionably many instances where an author can secure larger royalties by "shopping around," but in the long run better results will come from a consideration of the bonds between author and publisher in the light of a business partnership, not to be broken while relations remain amicable.
At present there is no uniform book contract used by all publishers. The blank contract form here given is that used by a reputable publishing-house. As a matter of fact, no present contract of any publisher is wholly satisfactory, and it is interesting to note that the subject of contract is one which the leading houses are taking up seriously with a view to standardization and improvement.
=Contract form:=
MEMORANDUM OF AGREEMENT made this ... day of ..., 19..., between ..., party of the first part (hereinafter called the Author), and ... of ..., party of the second part (hereinafter called the Publishers), WITNESSETH: That
WHEREAS the said ... is the author and proprietor of a work entitled ... (hereinafter called "the Work"), and desires that the same be published and put on the market by the said ...,
NOW, THEREFORE, in consideration of the premises and of One Dollar to each in hand paid by other, the receipt whereof is hereby acknowledged, the parties hereto do covenant and agree as follows:--
FIRST: The Author hereby bargains, sells, grants, conveys, transfers and sets over unto the said ... the sole and exclusive[10] right and privilege to print, publish and put on the market the said Work, during the whole term of its copyright and all the renewals thereof in the United States of America and in the Dominion of Canada and elsewhere[10]; the Publishers shall also have all rights of translation, abridgment, dramatization, moving-picture rights, selection, and other rights of, in, or to said Work in the United States of America and in the Dominion of Canada and elsewhere.[11]
SECOND: The Author hereby guarantees
I. That he is the legal author and sole proprietor of the said Work hereinabove mentioned, and that he has the sole and exclusive right to dispose of the same.
II. That the said Work has not heretofore been published, and that it is in no way a violation of any existing copyright, either in whole or in part, and that it contains nothing of a scandalous, an immoral or libelous nature.
THIRD: The Author covenants and agrees
(_a_) That he will keep the Publishers safe, whole and harmless from all damage, hurt and expense of every nature, kind, and description whatsoever arising from any claims of infringement of copyright or from any matter or thing contained in said Work.
(_b_) That he will deliver to the Publishers full and complete manuscript of said Work, on or before the ... day of ..., and that he will pay all expenses for corrections[12] in plates after last proof from type, whether page or galley, has been corrected by him and such corrections carried out by the compositors. The manuscript thus given to the Publishers shall be final revised "copy." In this regard it is understood that in case, because of danger of serious delay in publication or of the loss of copyright, opportunity is not given the Author to read proof as hereinbefore provided, the cost of plate corrections not necessitated by typographical errors shall still be borne by the Author, unless delay in sending proofs from type is due to gross negligence on the part of the Publishers. If the Publishers are required by the Author to make corrections or alterations in the type (not necessitated by typographical errors) costing in excess of twenty-five dollars, the Author agrees to pay the excess of cost.
(_c_) That he will give to the Publishers the first refusal of the next[13] ... to be written by him, hereby granting to the said Publishers, on the same terms as those of this contract, an option on the publication thereof for ... days after the manuscript shall have been delivered to them.
(_d_) That he will take or cause to be taken all necessary steps to effect renewals of copyright as provided for by law.
FOURTH: The Publishers hereby covenant and agree
I. To copyright[14] the said Work in the United States of America in the name of the Publishers, and to take all usual precautions to protect the same.
II. To publish said Work and put the same on the market at their own expense, in such style and manner as they shall deem expedient, and at such time or times as they shall see fit, it being understood that the advertising, the number and destination of free copies, and each and every detail as to manufacture and publication shall be in the exclusive control of the Publishers.
III. To pay to the Author[15] ... per cent. on the catalogue (retail) price, regular cloth style, for all copies of said Work actually sold by them, which shall be construed as not including copies given to the Author, travelers' samples, damaged copies, copies given away for the purpose of aiding the sale of the Work, copies sold at or below cost, where falling off in profitable sales in any style of binding requires this, or copies sold at a catalogue (retail) price of fifty cents or less, or copies sold in foreign countries.[13]
IV. To pay upon all copies of the said Work sold and paid for at a catalogue (retail) price of fifty cents or less, or copies sold in foreign countries, one-half of the first above-mentioned royalty or percentage on the foreign[16] catalogue (retail) price of the same.
V. To pay upon all copies of the said Work sold at "remainder" prices (except when sold at or below cost) ten per cent. of the actual net price received. Such "remainder" prices shall not exceed one-third of the retail price of the Work.
VI. To pay to the Author the sum of ... on the ... day of ... in advance and on account of the royalty or percentage to accrue to the Author as hereinbefore specified.
VII. To give to the Author[17] ... copies of said Work, and to sell to him further copies for his personal use at the trade[18] price.
VIII. No payment shall be made by the Publishers for permission gratuitously given to publish extracts from said Work to benefit the sale thereof; but if the Publishers receive any compensation for the publication of extracts therefrom, or for serial use after publication in book form, or for translations, or abridgments, such compensation shall be equally divided between the parties hereto.
IX. If the publishers receive any compensation for rights of dramatization, moving-picture rights,[19] or first serial rights, such compensation shall be divided in the proportion of[20] ... to the Author, and ... to the Publishers.
X. To submit statements of sales as of the second Monday in January [and the first Monday in July],[21] on April 1st (and October 1st respectively) in each and every year, and to settle for the same in cash on the first of every May (and the first of every November), respectively following.
FIFTH: It is further covenanted and agreed by and between the parties hereto as follows:
_A._ If at any time during the continuance of this agreement the Publishers wish permanently to discontinue the publication of said Work, they shall notify the Author in writing, mailed to his latest-known address, and for thirty days thereafter he shall have the option or right to buy from the Publishers all copies on hand at the cost of manufacture, and (should these not have been destroyed by fire or otherwise) stamps and electrotype plates if any, at one-third their cost to the Publishers, paying in addition for engravings of the illustrations, if any, twenty-five cents per square inch of each plate, and upon the failure of said Author to exercise this right or option, by paying for the same in cash within said time, said Publishers shall dispose of the same as they may see fit without any commission or percentage whatsoever, and this contract shall forthwith cease and determine.
_B._ If, after the publication of any edition of said Work, the plates be rendered useless by fire or otherwise, the Publishers shall have the option of reproducing them or not; and if they shall decline to reproduce them, then, after the sale of all copies remaining on hand, they shall, upon written request, reconvey to the Author the copyright and all rights herein granted, and this contract shall terminate. No insurance shall be effected by the Publishers for the Author.
_C._ The parties hereto hereby agree to settle all disputes and differences under this contract by arbitration. One arbitrator shall be chosen by each party to this agreement, and these two arbitrators shall select a third, and the decision of a majority of the arbitrators shall be final and shall be binding upon the parties hereto.
_D._ It is understood and agreed that the Publishers are not insurers of manuscripts or drawings placed in their possession, and that they shall be liable for gross negligence only in the care of the same.
It is understood and agreed that this instrument shall bind the parties hereto, their heirs, executors, administrators, successor, successors or assigns.
IN WITNESS WHEREOF the parties hereto have hereunto interchangedly set their hands and seals the day and year first above written.
IN THE PRESENCE OF
As to the Author
As to ...
MOVING-PICTURE RIGHTS
The tremendous development in the moving-picture business has created a demand for dramatic films taken from long stories, or for a reproduction entire of short stories, which offers an entirely new and unexpected revenue to both publisher and author. Moving-pictures have passed from the experimental period into an institution. The reproduction entire of certain famous stories has given to the enterprise a dignity which no one could have predicted, and the outlet they offer for a by-product is considered perfectly legitimate.
All this produces new conditions in the relations between author and publisher, and many new questions have arisen which neither one may have anticipated at the time the contract was drawn. It is still necessary to have interpretations of the laws governing dramatic regulations, and of the rights involved.
It has been the practice of the moving-picture producer to buy his plots outright, but with the new knowledge which has come to the writers of scenarios and plots of the real value of these when once assured of success, has also come a realization of the advantages of making royalty arrangements instead of selling outright.
As far as the future is concerned, authors should familiarize themselves with the various intricacies of this particular field before signing contracts, making sure that the contract clearly defines the exact basis of what they part with and what they retain, or the percentage of ownership which the author holds in any one of the various rights.
The following excellent summary is supplied by the "Authors' League" to its members:
"While the business of motion photography is by no means new, it is only within comparatively recent times that there has been a general demand for scenarios and plots. Within the last two or three years authors have found a new and unsuspected source of revenue in the sale of 'Cinema' rights to their short stories, and, although the returns were usually small, they formed a welcome addition to the writer's income. Prices frequently depended more upon the advertising value of the author's name than upon the character of the material, and ranged from $15 to $150; nevertheless, many persons not engaged in the usual forms of literary work have reaped a substantial harvest from that source. Until recently, subjects have been commonly confined to one reel of 1000 feet in length, but owing to the rapid development of the motion-picture business there has arisen a demand for more pretentious photoplays, for 'feature films' of multiple reel length, and, in consequence, many famous books and dramas have been, and are being, photographed.
The demand is logical and promises to be permanent, hence the producer finds himself in need of good subjects, and the author is beginning to recognize his photoplay rights as something more than an insignificant by-product of his labor.
It has been the picture-producer's practice to pay cash for his plots, but royalty arrangements covering 'feature films' are now being made. The latter method has its drawbacks, for, owing to the existence of a middle-man, it is more difficult for the photo-playwright to share in the full returns of his work than it is for the author of a book or play. The book-publisher or theatrical-producer distributes his goods directly to the public, and the author receives a royalty on the retail price of the book in the one instance, and on the box-office receipts in the other. The motion-picture manufacturer, on the contrary, does not sell his films to the theater or to the public, except in certain cases noted later, but to an 'exchange' or series of exchanges, which in turn leases to the exhibitor. Under this practice, therefore, the author receives a percentage only upon the rental or purchase price paid by the exchange to the manufacturer.
The exceptions above referred to, under which the author may more nearly share in the full returns from his photoplay, is when state rights, foreign rights, etc., to 'feature films' are sold or leased for cash, without passing through the hands of the exchanges, or when the producer elects to exhibit his films in his own or leased theaters. It may be seen, therefore, that while a sale on a royalty basis is in some ways unsatisfactory from the author's standpoint, it is on the whole preferable to a cash sale.
The exchanges are, in effect, circulating libraries, which distribute reels of film instead of books. The results are similar to those arising from the English library system, under which large book sales are almost impossible, and under which neither author nor publisher profits greatly from a book's popularity. There is this difference, however: the publishers of Great Britain do not own the libraries, while in this country the exchanges--at least to a great extent--are owned by the manufacturers.
Since many writers are totally unfamiliar with the conditions of the trade, a word of explanation may be of value and avoid bewilderment. Broadly speaking, the motion-picture field is occupied by two factions--the 'licensed' manufacturers, with their own exchanges and exhibitors, and the 'independents.' The former are composed of ten producing firms, the patents and rights under which they operate being vested in a holding company--The General Film Company--which is the sales-agent for all regularly released films of the coalition, and has about fifty branches. These manufacturers make only 'licensed' films, and distribute their regular releases only through the general film company, which in turn leases exclusively to licensed theaters, of which there are about 10,000 in this country.
The remaining producers, exchanges and exhibitors comprise the independents.
When an ordinary film of 1000 feet is made, it is released for exhibition on a given date, and is then termed a 'first-run picture.' As it gradually wears out, this rental grows less, and in about six months it is called in and destroyed. If the subject is popular, reprints are made, and distributed as before. 'Feature films' comprising several reels are sometimes handled as previously noted. Foreign rights are most frequently sold outright."
=Don'ts for Authors=
"Don't give away your photoplay rights in selling a story for magazine or book publication.
Don't include them in a dramatic contract without some clause similar to that governing stock rights.
Don't sell them to the first bidder.
Don't sell them for cash if you can secure a continuing interest in the film. It may be of value ten years hence.
Don't decide that your story will not make a motion-picture. It may contain values which you do not see.
Don't decide that your story will make a good photoplay until you understand something about the requirements and limitations of the business. Remember, every film must be passed by the National Board of Censors.
Don't forget that your story must be told in pantomime.
Don't turn your photoplay rights over to the stranger who offers to adapt and handle your stories for one-half the proceeds.
Don't forget that you probably sold 'all rights' to your story when you signed that receipt.
Don't sell the producer a right which you don't own, and make him buy it over again from the present owner. He won't like it."
REPORTS ON ROYALTIES
The methods employed by the various publishing-houses in keeping and rendering their accounts with authors vary with each house, but all publishers are alike to the extent of realizing that this end of the business must be absolutely above suspicion. An unwarranted rumor, or a clerical error, would raise a question which might affect the standing of the house more than any other one thing. For this reason, the royalty records of all reputable publishing firms are so kept that they may be easily inspected if any question arises, and no objection would ever be made to a request from an author to make an examination should he feel that circumstances justified it.
The publisher recognizes that each author is, in a sense, his partner in the production of a book, and as such is entitled to intimate information regarding the progress of their joint enterprise. Semi-annual statements are rendered, which are often verified by certified reports from the publisher's printers and binders, covering the number of copies manufactured and sold during each period. Some publishers include a report of the number of copies distributed for review or other advertising purposes; some do not. Some have these reports checked by public accountants, who compare the statements of sales with the bills for printing and binding and the inventories for paper. But all these varying methods are based upon accurate, detailed records, which are carried forward regularly to the author's account.
Payments upon these semi-annual statements are usually made four months after they are rendered, making an average date of seven months which the publisher takes upon his royalty account. On the face of it, this seems too long a time, but those authors who are familiar with the customs of the trade realize that the publisher is obliged to sell to the jobbers and retailers on time, so that in this, as in other portions of the undertaking, they are simply sharing the financial necessities.
THE COPYRIGHT
THE matter of copyright is one which admittedly requires thorough revision. No one seems able to explain why it is that in spite of conferences and delegations, congresses and discussions, the product of a man's brain is still at the mercy of regulations which even those in authority are unable to define. As a matter of fact, the copyright itself is merely a registration, which protects only in case the claimant of the copyright possesses the rights he claims. The Copyright Office does not undertake to pass upon his rights, leaving the question to the courts in case of dispute. It simply records his claims, and by this recording gives him certain rights provided his claims can be substantiated. The statements here made, therefore, cannot be taken as definitive, but are based upon information given out by the Copyright Office, and upon the usage of the best publishing-houses.
When a publisher has accepted a manuscript, it becomes a part of his duty to secure the copyright. Usually, this is taken out in the name of the publisher rather than of the author, as the contract itself is really a license to sell from the author to the publisher. It is also the duty of the publisher to take all necessary steps to effect renewals of copyright as provided for by law.[22]
For those who find it necessary to take out their own copyrights, the following information is of value:
The copyright law provides that the application for registration of any work "shall specify to which of the following classes the work in which copyright is claimed belongs":
(_a_) Books, including composite and cyclopaedic works, directories, gazetteers, and other compilations. (_b_) Periodicals, newspapers. (_c_) Lectures, sermons, addresses, prepared for oral delivery. (_d_) Dramatic or dramatico-musical compositions. (_e_) Musical compositions. (_f_) Maps. (_g_) Works of art; models or designs for works of art. (_h_) Reproductions of a work of art. (_i_) Drawings or plastic works of a scientific or technical character. (_j_) Photographs. (_k_) Prints and pictorial illustrations.
The Amendatory act, approved August 24, 1912, added the following two new classes of works as subject to copyright:
(_l_) Motion-picture photoplays. (_m_) Motion pictures other than photoplays.
A work is not entitled to registration unless it is reasonably possible to classify it under one or the other of the above designations named in the statute.
¶Compilations, abridgments, adaptations, dramatizations, translations or other versions of works produced with the consent of the proprietor of such works, or works republished with new matter, are regarded as new works subject to copyright.
An alien author or proprietor can be protected by our law only in case he be domiciled within the United States at the time of the first publication of his work; or when the foreign state or nation of which he is a citizen or subject grants to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright by the terms of which the United States may become a party thereto.
¶Copyright protection is at present granted in the United States to works of authors who are citizens or subjects of the following countries: Belgium, France, Great Britain and her possessions, Switzerland, Germany, Italy, Denmark, Portugal, Spain, Mexico, Chile, Costa Rica, Netherlands and her possessions, Cuba, China, Norway, Japan (and Korea), Austria, Guatemala, Salvador, Honduras, Nicaragua, Luxemburg, Sweden, Tunis and Hungary.
HOW TO SECURE COPYRIGHT REGISTRATION IN THE UNITED STATES
=For works reproduced in copies for sale:=
1. Publish the work with the copyright notice. The notice may be in the form "Copyright, 19... (year date of publication) by ... (name of copyright proprietor)."[23] The date in the copyright notice should agree with the year date of publication.
2. Promptly after publication, send to the Copyright Office two copies of the best edition of the work, with an application for registration and a money-order payable to the Register of Copyrights for the statutory registration fee of $1.00. (As to special fee for registration of photographs, see below.) The law provides "that of the printed book or periodical the text shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made within the limits of the United States from type set therein, or, if the text be produced by lithographic process, or photo-engraving process, then by a process wholly performed within the limits of the United States."