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.