Copyright, Contracts and Legal Issues

MARION can provide general advice for writers, but not legal advice.

If you have a specific legal advice question, you can ask:

Each of these organisations also have resources available on their website with information relating to the issues we focus on below:

What is copyright? What do I need to know?

Copyright is the protection of intellectual property under Australian law under the Copyright Act. Thanks to copyright, creators can manage how their content is used and seen by other people, and can be paid for their work.

Copyright protects creative work that has been recorded in some way, but does not safeguard ideas. Two people can create similar works or works on similar themes, providing the execution is not an act of copying. In Australia, copyright is automatic as soon as the material is recorded. You do not need to register for copyright.

The copyright holder is usually the creator of the content, but if you create something as part of employment or on a contract arrangement, the copyright may belong to the organisation that has engaged you, depending on the agreement. When you sign a publishing contract, you are likely to sign licenses for the use of your content, but the copyright should usually remain with you.

You should always be careful when using other people’s work, even if you are not making money from it. Using song lyrics in your writing, printing recipes, or using photos you haven’t taken in social media can all require obtaining a license to use the copyright.

For more information regarding copyright, or if you have a specific question, look at the following resources:

What should I know before signing a publishing contract?

Before signing anything, make sure you read through your contract carefully, and that you understand it. If something is not in the contract, don’t assume it will happen; the contract is the only thing binding the publisher to do what they have communicated with you. What you’re signing is exclusively what you’re going to get.

Different writers and different projects will have different priorities. Some writers might want a large advance, but other writers might prefer to retain some of their rights, or to have several books picked up at once. Other writers might focus on the royalty rate or the reversion clause or the adaptation rights. It’s important to consider your plans for the book and what your needs are.

If you’re unsure about evaluating and negotiating a contract yourself, and you don’t have a literary agent, there are contract review services offered by Authors Legal, Arts Law and Alex Adsett Literary.

Things to ensure you understand before signing any contracts include:

  • Royalty clauses: How much will you be paid, and when? Are there different rates for different forms of the book (e.g. ebook vs print book)? If the book is remaindered, will the rates go down again?

  • Advance: Will you be paid an advance? How much will you be paid? Note that smaller publishers may not offer an advance, and if you do receive one, it is the norm that you won’t receive royalties until you have ‘earned it back’.

  • Reversion: Will the rights to the book revert back to you if the book is not selling? Note that some publishing contracts may say that the rights revert if the book is no longer available, but with digital publishing, it is very easy to ensure a book is always available. It may be better to request reversion based on the number of copies sold instead.

  • Indemnity: Many publishers (including reputable ones) state if the book breaks any laws (e.g. copyright, defamation, etc.), that the liability lies with the author.

  • Multimedia and Language Rights: Who retains the rights to adaptations and translations? Who is in a better position to use or sell these? If you have a well-connected literary agent, they may prefer to hold onto these rights.

The Australian Society of Authors also has example contracts available to purchase on their website.

What about other legal issues?

If you need legal advice for your specific situation, the following organisations provide free or low-cost legal advice services for artists:

  • The Arts Law Centre of Australia have a legal advice service for laws that affect artists.

  • Authors Legal advice on legal issues in the books and publishing world. This advice is only available to creators.

  • You can contact MARION for general advice and referral to other appropriate resources.