The Oracle Of Delphi
An Amazing Author Ezine Column by Fran Baker
KNOW YOUR RIGHTS!
By Fran Baker
(Copyright © 2000)
Let me start by saying that I am not an attorney and that this article is not legal advice. I am a multi-published author whose novels have been translated into more than twenty languages and who once had a book optioned (for about five minutes) for a made-for-television movie. In addition, I own a small press, which also makes me a publisher.
For purposes of this article, I'll put on my author's hat and say that I am always appalled when other authors - generally new authors - are so eager to sell their work that they will sign anything a publisher sets in front of them without questioning a word of it. That's a big - no, that's a HUGE mistake on their part. The "grant of rights" is the most important clause in a publishing contract because it is the clause that determines when, where, how, why and by whom their work will be used.
There are two main categories of rights in the book publishing business: primary rights and subsidiary rights. While neither category has a precise definition, authors should have some idea of what they are before they blithely grant them to a publisher. The grant of rights lasts for the term of copyright or as long as the publisher keeps the work in print. With the arrival of electronic distribution and on-demand printing, an author's work might never go out of print. In fact, an original edition of the work could conceivably be available to the author's great-great-grandchildren!
Primary rights traditionally include only those rights that the publisher specifically intends to use. For instance, an author might sign a contract granting rights to a print publisher to publish the original hardcover and/or mass-market paperback edition of a book. That same contract might also include foreign translation rights, serialization rights, book club rights, and the rights for special editions (e.g., large print), for which the publisher pays royalties to the author. Those rights should be carefully spelled out in the contract so that there is no misunderstanding on the author's part when the publisher releases or licenses different editions of the work.
As the name suggests, subsidiary rights are those that are secondary to the right of publishing an author's work in book form. These rights normally include but are not limited to motion picture and television rights, audiobook rights, audiovisual rights, merchandising rights, electronic rights, electronic adaptation rights, and dramatic or performance rights. Motion picture and television rights are good examples of how valuable subsidiary rights can be today, while electronic rights and electronic adaptation rights may be tomorrow's best example.
Most trade publishers will only enter into a publishing agreement with an author if they can obtain all rights to the author's work. That isn't an ironclad rule, but it is the norm. Since both the publisher and the author derive income from the successful exploitation of the work, there may be different ways in which each can achieve their common objectives. For example, sometimes an author will have better contacts for exploiting motion picture or television rights than the publisher will. In such an instance, that particular right could be reserved in the publishing contract for the author, and the author would then be contractually bound to compensate the publisher from the successful exploitation of that right. Other times, both parties could pursue the licensing of a particular right with the proceeds being equally divided between the parties.
Small publishers, on the other hand, will usually license only those rights they can use. In most cases, that means print rights for either a hardcover or paperback edition of the author's work. An increasingly popular option for authors in this new technological era is to license electronic rights to an Internet-based publisher, who delivers the author's work to the consumer in digital form to be read by a special device (e.g., Rocket Book) or through existing electronic devices such as a personal computer. Given the fact that technology is changing so rapidly, it is equally impossible to provide a precise definition of electronic rights. Theoretically, "electronic rights" should mean any form of electromagnetic information storage or delivery. What it really seems to mean is computer rights - any form of information storage or delivery that uses a computer. Some trade publishing contracts contain a "future technology" clause granting the publisher the right to exploit a work in "all media now known or hereafter created." Regardless of the wording, it is imperative that authors know the specific rights they are granting to the publisher, the specific use that will be made of those rights, and the specific amount of money they will be paid for the use of those rights.
With the new Web sites that are being mounted to expose an author's work to foreign publishers, it will soon be possible for an author to grant foreign and translation rights in strong book markets like the British Commonwealth, Germany, France, Italy, Spain, Spanish-speaking America, and Japan. If the author has retained the foreign and translation rights to his or her work, the advance that the foreign publisher or translator pays belongs to the author alone. If, however, the author has simply reserved those rights, they are required to compensate their original publisher a previously agreed-upon sum.
Those same Web sites are available to movie and television producers as well. While it is a rare occurrence when dramatic rights are purchased outright by a production company, many of them will option a work for 12 to 18 months for a fee. Again, authors must know the details of not only the dramatic rights but also the ancillary rights (e.g., merchandising, syndication, international distribution, sequels, electronic adaptations, and future use of characters) that they are granting to the production company.
In the not-too-distant past, authors thought they had enough on their plates just to meet their writing deadlines, decode their royalty statements, promote their latest release, and start plotting their next novel. Those days are long gone. Today, the publishing industry is changing at warp speed. Authors and publishers alike are under tremendous pressure to anticipate the impact of the emerging global techno-economy on their corner of what was once simply known as the book business. The one thing that has not and will not change, however, is the need for content. And it is the authors who not only provide content but who ultimately grant the rights to that content to the publishers.
As a publisher, albeit a small one, I frequently caution authors that I can only remain competitive and they can only make money if I am able to successfully exploit the rights they are willing to grant me. But as an author, I always warn other authors to "Know your rights!"
(Note: Authors with legal questions pertaining to their work should consult an attorney who specializes in publishing for answers.)
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