Tag Archives: multiple publishers

Juggling Contracts, Part 2: Look for the Language!

By Susan Spann

In month’s #PubLaw post here at Rocky Mountain Fiction Writers, we started a conversation about juggling multiple contracts for rights to novels and other creative works. Over the next couple of months, my posts will continue that conversation, with an eye to helping authors learn to juggle rights successfully.

Step 2 in successful contract juggling is making sure each contract contains TWO vital pieces of language:

– A clear and unambiguous statement of the rights you are licensing, AND

– A clear and unambiguous statement that you have the right to (separately) license and benefit from the rights you retain.

1. A Clear Statement of the Rights You License:

As I mentioned last month, the statement of licensed rights should be clear and unambiguous. It should start off with either the statement, “Author hereby licenses, to Publisher, for [stated term - often "the length of copyright"] the following rights…” and then list the specific rights you’re licensing.

Easy, right? Not so fast.

Read the contract carefully for words like subsidiary rights, additional rights, translation rights and derivative rights – in fact, do a search for “rights” and read carefully everywhere that term appears. Make sure the publisher hasn’t tried to obtain other rights in other paragraphs. It happens, and it happens often — and, for the record, it isn’t “pulling a fast one” – that’s just the way contracts read.

Make sure any rights you don’t intend to license are stricken out of the contract.

If you don’t understand the language, or aren’t sure how to strike the rights you want to retain, make sure you have an experienced publishing lawyer (or agent) review the contract and assist you to make sure you retain the rights you need. You don’t want to find out later that you inadvertently licensed rights you intended to retain.

1. A Statement About the Rights You Retain, and Your Right to License Them Separately (and to Other Parties).

Then, make sure the contract contains this, or a similar, statement: “Author reserves all rights not expressly granted to Publisher in this Agreement, along with the sole right to license and benefit from reserved rights in any manner Author chooses, including without limitation the right to enter into contracts with third parties for licensing and exploitation of said retained rights.”

You’re looking for language that says three things:

1. Any rights not expressly granted to the publisher belong to you.

2. You have the right to license and benefit from reserved rights in any manner you choose.

3. You have the right to license those retained rights to others (“third parties,” in contract language).

In addition, you want to make sure the contract states (somewhere) that you will not owe the publisher anything (or be in breach) if you enter into licenses or contracts to exploit the rights you’ve retained. 

We’ll talk more next month about “sneaky clauses” that might cause trouble in this regard. For now, take a look at the things you need to see–and make sure you’ve got a checklist of things to look for.

And, as always, don’t hesitate to seek assistance when the contract negotiations (or language) get outside your comfort zone. Seeking help now can keep you from needing to hire a lawyer down the line–and legal problems are ALWAYS less expensive when you deal with them in advance.

Have questions or topics you’d like to see covered in future RMFW #PubLaw guest posts? I’d love to hear about them in the comments!

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.

Do You Know How to Juggle … Contracts?

By Susan Spann

Last week, someone asked me if I’d ever written a post about the legalities of contracting with multiple publishers (or publishers and others) for various forms and formats of the same creative work. 

In simpler language: “What do I need to know before I license print rights to one publisher and then license audio, or translation, or film rights (to the same work) somewhere else?”

Today we’re starting a discussion of that very topic. It’s a complex one, so we’ll come back to it for the next few months, at least.

I’ve mentioned before that “copyright” includes a bundle of different rights, including print, ebooks, translation to foreign languages, TV and film rights, audio rights, apps and gaming, braille, and many more. Until and unless an author licenses some or all of those rights, the author owns and can control them all.

Sometimes, a publisher wants to contract for more than one kind of rights. Some publishers take only one or two. We could write an entire book (and many blog posts) about the decision whether or not to license multiple rights at once–but for now, I want to focus on what happens when the author has the chance to split the rights among different publishers or companies.

IF YOU WANT TO HAVE MULTIPLE CONTRACTS, PLAN AHEAD.

The author needs to plan for multiple contracts from the very beginning–meaning BEFORE he or she even signs the first one.

Publishing contracts (and film, TV, app and gaming contracts also) always contain two clauses:

– A clause which states that the author cannot enter into any contract which would violate the terms of the contract (s)he is signing, AND

– A clause in which the author warrants (a fancy legal word for “promises”) that the current contract doesn’t violate the terms of any other existing contract or agreement involving the author and this work.

Do you see the issue?

If the author gives away too many rights in the first (or any other) contract, or doesn’t make sure that each contract allows the author to dispose of the remaining rights in any way the author chooses, the author can end up trapped and unable to license additional rights, sometimes even if those rights weren’t expressly included in the first contract.

BEFORE YOU SELL RIGHTS TO YOUR WORK, MAKE A LIST OF THE DIFFERENT CONTRACTS YOU HOPE TO OBTAIN 

Create a list (or a spreadsheet) containing all of the rights you might want to license. This might include:

Leave space so you can write in the name of the publisher (or company) to whom you license each set of rights.

In addition to keeping your publishers straight, this list becomes your “rights review checklist” every time you prepare to enter a contract. Make sure each contract names and licenses only the rights you want to license to the company in question. Be clear during negotiations: let the publisher know in advance that you’re offering only certain rights, and that you intend to license and exploit your other rights in other ways.

You’ll also need to ensure that each publishing language contains some important language protecting your rights … but that’s the topic of next month’s #PubLaw post here at the Rocky Mountain Fiction Writers Blog.

So tune in next month for the next installment!

In the meantime, if you have questions about this or other publishing legal issues, please feel free to ask in the comments! 

 

 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.