Juggling Contracts, Part 3: Beware the Sub-Clauses!

By Susan Spann

Last month’s RMFW #PubLaw post talked about contract language authors want to see when juggling multiple contracts for different types of rights.

This month, we’ll take a look at the other clauses authors need to watch for.

Even contracts which seem to address only limited rights sometimes contain additional terms that impact sub-rights licensing and limit the other contracts the author can sign without a publisher’s permission. Here’s an overview of the most common:

1. Sub-rights paragraphs. Check the contract’s sub-rights paragraphs against your list of rights you intend to sell. Make sure you’re giving away only the rights you intend. Be careful, because the “grant of rights” paragraph doesn’t always contain all of the rights language. Many contracts contain sub-rights language in other places, farther down the agreement.

2. Licensing and assignment rights. Many contracts have separate paragraphs authorizing the publisher to sub-license additional rights. Be careful to ensure this doesn’t reach beyond the scope of the rights you intend to grant, and make sure these paragraphs specifically state that the publisher can’t license or sell rights beyond those “expressly granted to Publisher in this Agreement.”

3. Intellectual Property Ownership Provisions. Some publishers try to “grab” rights in the copyright and ownership sections. Read carefully, and ensure that you retain full ownership to all rights in the work (except for the ones licensed to the publisher, of course), and that your contract specifically states that you can benefit from those rights without owing the publisher any share or licensing fee.

4. Competitive Works Provisions. Many contracts prohibit the author from publishing or licensing “competitive works,” defined as works which might damage the market for the work referenced in the contract. Be sure these provisions have carve outs for derivative rights and sub-licensing of the other rights you intend to exploit. In fact, the contract should expressly state that the author’s exploitation of reserved rights is not a violation of this provision.

5. Option Clauses. Beware the lurking option clause that casts too broad a net. If a publisher takes an option, restrict that option as much as possible. For example, if you’re licensing publication rights to a novel, the option should be for “Author’s next book-length work of fiction in the same series only” and should not include derivatives, spinoffs, and short stories or novellas.

As you can see, the job of juggling rights becomes more intricate as more publishers and rights become involved. I recommend that authors who want to juggle multiple contracts have an agent or an experienced publishing attorney at their side, and that the author hires professional help before the first contract is signed.

Juggling rights requires careful planning and attention to detail, as well as a solid understanding of legalese and contract law. Don’t go it alone. The rights–and the profits–you save will be worth the trouble.

*As always, be aware that this column is general business advice, and not intended as specific legal advice to any person. All authors should consult an experienced publishing attorney before signing contracts or compromising their legal rights.

Have questions about this or other publishing legal topics? I’d love to hear from you in the comments!

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Susan Spann is a publishing attorney and author from Sacramento, California. Her debut mystery novel, CLAWS OF THE CAT (Minotaur Books, July 2013), is the first in a series featuring ninja detective Hiro Hattori. The sequel, BLADE OF THE SAMURAI, will release on July 15, 2014. Susan blogs about writing, publishing law and seahorses at http://www.SusanSpann.com. Find her on Twitter @SusanSpann or on Facebook.

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