Business Musings: Copyright Fun Part One

When I wrote my year in review for 2021, all seven posts of it, I was going to write a single post on copyright, highlighting all the interesting things from the year. Copyright issues dominated the news in 2021…and I was taking the first half of the entertainment law class that I’m finishing up this semester. I was all about copyright.

(If you want to read the year in review blogs, start here.)

I put the post on my to-do list, but the post kept getting moved. I finally settled into writing it, and realized that all the things that happened with copyright—good and bad—in 2021 were too much for a single post. I then, cryptically, mentioned in the final year-end post that I would deal with some of the other things more in-depth later.

As I’m sitting here this morning, organizing my material, I have dozens of topics that I could share, but I’m going to try to limit myself to three.

A friend of mine, a long-time international bestseller, asked me last year why I was “wasting my time” taking an entertainment law class. He thought I already knew enough. I was startled by the “already knew enough” statement. Copyright law, like any other kind of law, grows and changes and evolves. What worked in 1990 doesn’t always work now. That’s why I always have an up-to-date version of The Copyright Handbook in my library.

The “waste my time” is where my brain has been stuck ever since. Like so many of our peers, my bestselling friend relies on his “advisors” to help him with business matters, from sales to negotiation to finances. It has been a source of frustration for me for a long, long time, and no matter how much we talk, I can’t get him to monitor his business affairs himself—no matter how many times someone misrepresents his point of view, outright lies to his business partners, or embezzles from him. And he’s not alone. Dozens of our friends as well as maybe hundreds of writers that I know make the same choices every single day.

Every year, I write a contracts post, and while many of you longtime readers reassure me that the posts (or their past equivalents) have helped you, so many writers who need these posts either never see them, dismiss me as a crank, or, like my friend, think that learning contracts is a waste of time.

It’s not at all a waste of time, and this post, with examples from 2021, will show you why. (I suspect the next post will also show you why—if you’re able to pay attention.)

In my head, I’ve subtitled this series of posts Copyright done right. That’s not exactly true. There are few rights or wrongs with copyright. What is right and wrong is the way that artists exploit (or use) their own copyrights.

First, let’s start with making sure you maintain control of your copyright. As I’ve said dozens of times in dozens of posts, make sure you maintain as much control of your copyright as possible. That means licensing just enough of your copyright to make whatever deal is on the table happen. No more and no less.

Why is that? Well, you don’t want auxiliary rights or rights that can be used for derivative works tied up with a company that’s not in position right now to exploit those rights. That company wants those rights so that, if the project you’re both working on is successful, the company has control of the rights. You won’t.

Most writers shrug at this point and think, What will it matter? My book or project is only good for the moment. Who cares about the future?

Your copyright, should you manage to control it, is good for the length of your life plus 70 years. What does that mean, exactly? It means that 70 years after you die, your work will go into the public domain.

That’s why you need to have estate planning. I’ll deal with some of that in the third post.

But for the purposes of this post, you will control the copyrights of all of your works until your death…unless you assign those copyrights (or a portion of them) to someone else.

Yeah, yeah, clear as mud, right? Those of you who understood none of that need to read this post, and then get yourself a copy of the Copyright Handbook and read it.

Let me use an example of something that occurred in 2021 to illustrate this point. It’s not really copyright done right. It’s copyright handled the old traditional way, and the author outlasted the bad deals. But he didn’t sign deals that were so bad that he lost his copyright.

Don’t wince. Writers are doing that all the time, especially with traditional publishing.

When writer Michael Moorcock was 22 years old, he published short stories in a British magazine called Science Fantasy. Those short stories introduced Moorcock’s most famous character, Elric of Melniboné. The Elric stories were published in the early 1960s, and then became novels in the 1970s. The novels have been in print ever since.

The Elric books were influential fantasy novels about an anti-hero, written at a time when this kind of fantasy was seeing its greatest success in the 20^th century. The books were adapted for comics, music, and role-playing games.

Over the years, there were movie and TV deals as well, and this is where it gets interesting. Apparently, Moorcock, working with his agents, tied up a bunch of auxiliary rights in movie options. In other words, when the negotiations happened to option the movie rights to Elric or an Elric novel, that option included all kinds of rights to other things. I have not seen the option, but I can guess based one what my own initial option offers look like. Those deals usually try to get as many merchandising rights as possible. Those rights include toys, games, t-shirts, and a whole host of other things.

I always try to get merchandising rights separated from any movie rights deal that I make, particularly in an option. If nothing else, I will negotiate some language that allows us to revisit the rights when it comes time to do a movie contract.

An option isn’t a movie contract. It’s a promise that I, as a creator, will not allow anyone else to make a movie about this book for x many years. Producer guy is reserving the right to make a movie, although he doesn’t have anything cobbled together yet. For that reservation, he will pay x amount of dollars. Should he cobble something together, then other terms in the option apply. If, for example, a writer lets Producer Guy option the merchandising rights along with the movie rights, then the writer cannot exercise those merchandising rights—even if someone offers cash money for them. And because the rights are tied to a promise, not an actual movie, Producer Guy doesn’t really have the right to negotiate separately either.

The option is one big package, and cannot be broken apart.

Apparently, all of Moorcock’s movie or TV deals in this century tied up his video game rights. Badly done on the part of his representation, who clearly (at the start of the century) did not understand where the technology was going.

And to make matters worse, Moorcock had at least one video game company interested in making video games about Elric. Maybe even covering the entire series.

Moorcock (or his representation) had to turn the company away. And, stupidly, they kept tying up the rights in other options. Eventually, though, those options expired, and finally, Moorcock’s agent let the video game company know that the rights were available.

Fortunately for Moorcock, the company was still interested.

As the headline says, 60 years after he first appeared in print, Elric is finally getting a video game.

What the headline completely ignores or doesn’t understand or doesn’t care about is this: 60 years ago, there was no such thing as a video game. So Elric is now being produced in a technology that didn’t exist when Elric was invented.

There are a lot of copyright permutations here that make me geek out and want to ask questions, but they’re not relevant to this post. What is relevant is this: Moorcock still controls rights to Elric, sixty years after Elric first saw print.

I’m sure if you asked the 22-year-old Michael Moorcock if he envisioned comic books and music and role-playing games and video games about his character, he would’ve laughed. He might’ve asked what those gaming things were. He might’ve mentioned movies or TV, and then noted how impossible it all was.

Because from the perspective of 1961, when the first Elric story appeared in a magazine that no longer exists, it was impossible. Or at least improbable.

And because of luck, interest, and someone protecting at least part of the copyright, Michael Moorcock, at the age of 81, had the ability to make (probably quite a bit) of money on Elric. Again.

Because that’s what copyright does, if properly licensed. It pays the owner of that copyright time and time again for something that requires very little from the author. Is Michael Moorcock going to write the script for the video game? Probably not. Did he have to do anything after he signed that contract? Maybe answer a few questions.

There are three lessons I want you to see from the Moorcock story.

The first, and most important, is that copyright is the tool by which Moorcock controls Elric. When Moorcock controls the copyright, he makes money from Elric. Still. Without lifting a finger.

The second is this: there are always new ways to exploit a copyright. New games, new technology, new ways to market or distribute the same story, different kinds of auxiliary rights, all kinds of ways of making derivative works. Some of these things aren’t available—aren’t even foreseeable—at the time of first publication. So when a writer is willing to give up the entire (or most of) a copyright just to get published, they’re giving up a wide and vast and unpredictable future for themselves, their career, and their stories.

The third is this: because Moorcock or his representation got careless, he almost lost this opportunity. Go back to the exclusivity posts I wrote earlier this year.  I’ve been told a dozen times by representatives for producers or movie studios that no one will make a deal without tying up merchandising rights.

That’s not true. The compromise I’ve made with those producers is a simple one: I promise to negotiate the merchandising or other rights unrelated to actual movies or TV when we get a contract. At that point, we will come up with a deal favorable to both sides.

It is, in other words, a promise to negotiate, but it allows me the ability to license those rights should the opportunity arise.

If I had been offered the chance to have a video game made of one of my properties currently under option, I would have been able to license that video game.

Because Moorcock or his representation took the expedient route (and probably only looked at the up-front money, like so many people do), he almost lost this chance to have a video game produced. In fact, the only reason he has this opportunity is because the other deals fell through.

Sure, sure, some of you are saying. That’s Michael Moorcock. And his work is famous.

Yes, it is. And who knows when or if yours will become famous. Elric didn’t really become a cultural icon until the last few decades. When those books appeared in the 1970s, a lot of people in sf circles disparaged them and said that they would ruin Moorcock’s career. Whoops. Didn’t turn out that way.

Because you can’t predict these things. And because you can’t, you need make sure you have the opportunity to take advantage of future offers.

Things change and new fads hit. Tastes change as well, and what was once something that would destroy a career becomes the inspiration for hundreds of other artists, who remember the work fondly and want to use it or incorporate it in their own work.

I think nothing exemplifies the who could have predicted that aspect to art and books and enthusiasm better than the weird phenomenon of a book called Cain’s Jawbone. First published in 1943, this strange puzzle of a book got new life thanks to a crowdfunding platform called Unbound. Unbound wants its users to spread the word about the book projects. Most users do so on social media.

Cain’s Jawbone hit the zeitgeist thanks to Sarah Scannell, who made a series of TikTok videos about her attempt to solve the puzzle—and suddenly, this unknown book, which wasn’t a huge seller in its day, went viral and sold out.

I don’t know who controls the copyright for Cain’s Jawbone. It was originally a British book, so British copyright law applies. I don’t know if the author or the author’s estate did whatever they needed to do to keep the book under copyright. I doubt it, given what’s in the Guardian article that I linked to. But I don’t know.

The point here is that this book, which was written long ago, has new life thanks to a new medium. And that can happen to any of our works.

Let me add one other thing before wrapping this post up. All that study I did last semester had me reading case law about movies, television, books, plays, sculpture, paintings, and photography. Almost every case delineates the story of how the case came to be. And inside that story is the history of the copyrighted property or of the derivative works existence.

Everything takes years. Not just the court cases, but the creation of the derivative works themselves. Or the duration of the copyright. In some cases, it took decades for a book to be turned into a film. Or for a film to become a Broadway play.

Writers who take the long view—of their books, their stories, their characters, and most importantly, their copyrights—are the writers that will be the most successful overall.

Writers who sell all of their copyright or license most of it will not have the chance for success. Someone else will have those opportunities, as we’ll see in the third post on this topic.

If the bulk of this post was gobbledygook to you, you’ve got lots of learning to do. If you agree with my bestselling friend that you’re better off having representatives think about this stinky business stuff, well then, you’ll probably lose as much money and time to scam artists and thieves as he has.

Yeah, I know. For most of you, copyright sounds like something awful and terrible to learn.

For me, I’m enjoying every minute of my class and wishing I could take it for semester after semester. Finally, copyright in chronological order! I might sneak into the law school and see what else I can find.

Until then, I’ll be geeking out over the stories that appear in the news, and sharing some of them with you.

I’ll definitely share some other interesting ones in the next two posts. Fasten your seat belts. This is going to be a short geeky series.

*****

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“Business Musings: Copyright Fun Part One,” copyright © 2022 by Kristine Kathryn Rusch. Image at the top of the blog copyright © Can Stock Photo / aquir.