Do You Know Your (Publishing) Rights?

By Susan Spann

The grant of rights to the publisher is among the most important (and trickiest) terms in a publishing contract. Although the paragraph itself is seldom long, it’s often connected to several others, not all of which are obvious during an initial read.

Regardless of the length or complexity of the terms, it’s critical for authors to understand the rights the contract grants to the publishing house.

The most expansive (and most commonly requested) rights provision grants the publisher “exclusive, worldwide rights to publication and distribution in all languages and in forms and formats now known and hereafter developed.”

Although short, the quote above contains the four primary factors authors need to consider in any grant of rights:

1. Exclusivity. Rights granted “exclusively” to the publisher cannot be granted to or utilized by anyone else (including the author) for the duration of the contract (which normally lasts for the term of copyright in the work, unless termination language in the agreement gives other options). It’s normal (and not abusive) for publishers to want exclusivity. The publisher is investing time and money in your work, and deserves to profit from that effort (as do you!). Just make sure the publisher has the resources to exploit the rights granted in the contract. A small, U.S. only publisher may not need exclusive worldwide rights. Exclusive North American (or U.S.) rights may suffice. Then again, it’s difficult to publish ebooks effectively without the right to sell them on the Internet, and Internet sales often cross borders.

2. Geographical Reach. Since the publisher will normally want exclusivity within its territory, pay attention to the manner in which that territory is described. Options include “worldwide” (formerly “throughout the universe”) or any lesser territorial boundaries the parties agree upon. U.S. rights are different than North American rights – so pay attention and be sure to ask if you have any question about the geographic and territorial descriptions in the contract.

3. Languages. The contract should specify what languages the publisher’s rights include. Contracts which merely state “exclusive, worldwide rights” are generally deemed to include all languages. If you intend to grant only English-language rights, the contract must say so. If the publisher wants a more extensive grant of language rights, be sure the publisher has the capacity to translate accurately and distribute in those markets. A poor translation is sometimes worse than no translation at all. On the other hand, you shouldn’t refuse foreign language rights to a publisher with a proven track record and the capacity to translate and market your work abroad.

4. Forms and Formats. Most publishers will request “all forms and formats”  – author, BEWARE. Does this include film, TV, and gaming too? It shouldn’t. Those rights aren’t tied to a publisher’s right to publish the book in print and ebook formats. Make sure your publisher has the capacity to act on all of the formats you grant, and that you don’t give away formats the publisher doesn’t need or deserve. It makes little sense to grant print rights to an e-only publisher – and is equally nonsensical to refuse e-book rights to a major brick and mortar house. Be aware that “all forms and formats” now includes mobile devices and potentially also app, gaming, TV, film, merchandising, and many more. A specific carveout is required if you want to retain those rights.

There are other factors that merit additional consideration, too, and which may appear less commonly in publishing deals. These can include film and TV rights, editing, the use of outside “co-authors” and/or editors, and several other issues. These often take a back seat to the “big four” we discussed today, but they remain important, and we’ll take a look at a few of them next week.

The “right” clause depends on many factors – there is no “one size fits all” – so be vigilant and pay attention, and make the right business decision for you and your book.

Today’s big take-away lesson is this: pay attention to the grant of rights, and know what rights you’re agreeing to give your publisher. A proper grant of rights lays the foundation for a positive, long-term business relationship between the author and the publisher – and that, of course, is good for everyone.

~~~~~~~~~~~~~~~~~~~~~~~~~

 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.