Foreign Publishing Deals

Foreign Publishing Deals: The question as to who owns the right to make these deals is the subject of the agreement between author and publisher. Since copyright initially resides in the creator of the work-usually the author unless it is a work for hire situation-how much of that bundle of rights called copyright the author gives away is what that agreement is all about. Part of the negotiation will involve foreign rights of the sorts mentioned above. (see the further discussion below). However, there are often other parties who may have rights that may prevent the making of a foreign deal including but not limited to artists, illustrators, editors and even, in some instances, distributors and other parties. Therefore, the publisher must carefully review all of its agreements (or the lack of such agreements) to make sure it can actually make a foreign deal.

The real question is whether the US publisher owns exclusive rights to the cover art. Without exclusive rights, the US publisher is nothing but a non-exclusive licensee and does not have the legal right to assign any rights or otherwise deal in or with the US cover art. Unless the agreement with the cover artist expressly provides for the transfer of the exclusive rights of the artist to the publisher including the right to transfer and assign such rights, it is unlikely that the US publisher can transfer such rights to the sub-publisher. I am assuming that the cover artist is not a bona fide employee doing work in the course and scope of his/her employment.




IVAN HOFFMAN, B.A., J.D.
42+ years experience lawyering in the IP business, my experience is that the single biggest mistake that publishers make is in not having a valid written and signed agreement with cover artists. Merely paying for the art is NOT legally sufficient.