Thursday, January 24, 2013

Grant of Rights ... or Wrongs?

Welcome back to our continuing series on demystifying the legalese of publishing contracts. Today we're taking a look at grants of rights.

Our old friend John Q. Penman's contract with  Fictitious Publishing Company has the following grant of rights:

"Author grants Publisher the sole, exclusive and worldwide rights (a) to reproduce, publish, distribute and sell (individually and collectively, "publish") the Work* in the English language in print-on-paper or other physical media ("book format"), (b) the right to publish the Work in the English language in electronic media ("ebook format"), and (c) the additional and subsidiary rights in the Work specified elsewhere in this Agreement. All of the rights granted in this paragraph will last for the term of copyright in the Work."

*Note: "Work" is defined elsewhere in the contract as "An original, creative work of fiction by John Q. Penman currently titled BEST NOVEL EVER."

So: what has John given away? Let's break it down.

1. "Sole, exclusive and worldwide rights" means that Publisher, and only Publisher, may publish or produce copies of the Work in the listed formats and languages during the term of the Agreement. Since the grant of rights is "worldwide," John cannot sell the foreign rights to English language editions.

2. "in the English language."  Since Publisher has only English-language rights, John can sell the rights to foreign language editions of the work - assuming translation rights aren't hiding elsewhere in the agreement (NOTE: sneaky little subparagraph c includes "additional and subsidiary rights ... specified elsewhere," which means this paragraph doesn't tell us ALL of the rights Publisher can claim).

3. "book format" and "ebook format." Most publishers want both print and e-book rights. With e-book sales rising, and e-readers increasingly popular, it's exceedingly rare to see a publishing contract which doesn't request (and require) both.

4. "the additional and subsidiary rights ... specified elsewhere." Be careful, John! This little warning means the contract probably addresses rights like audio books, TV, film, serial rights, and possibly also related rights like apps and gaming. This language isn't a trick - the other rights are often negotiable, and Publishers usually discuss them in subsequent paragraphs. That said, careful reading of the contract is required to ensure the author knows exactly what he's giving up.

5. "for the term of copyright." Since John is an individual, and the contract is governed by U.S. law (it's my fictitious contract, I make the rules), "term of copyright" means life of the author plus 70 years. Unless the contract is terminated before that (and we'll look at the termination clauses in coming weeks) this agreement will survive John's lifetime. Again, this is standard language, especially with a large publishing house, but it's something for John to consider.

Whether or not these terms are "good" for John depends on several factors, including the size of the publisher and its ability to utilize worldwide distribution rights (a smaller house might only be able to handle U.S. distribution), which subsidiary rights the contract claims (an important point we'll get to in this series), and whether John is willing to enter a contract for the term of copyright. There are other considerations, too.

All of which highlights the importance of reading and understanding the contract terms. John can't evaluate his deal if he doesn't know what the publisher is offering - and you can't either!

Tune in next week for the next exciting installment of MORE THAN YOU BARGAINED FOR, as we continue John Q's journey through the legal maze.

Posted by Susan Spann

Susan Spann is a California publishing attorney and the author of Claws of the Cat (St. Martin's / Minotaur, July 2013), the first novel in the Shinobi Mystery series featuring ninja detective Hiro Hattori.


Patricia Stoltey said...

Everything is changing so fast. It wasn't so long ago that publishers didn't give a hoot about digital rights, which is why some of us are able to publish our own backlists as e-books. Newer contracts snatch that option right out of our hands.

Thanks for another informative post, Susan.

Susan said...

Thanks Pat!

It's so true - eBook rights used to be a "throw-away" from the publisher's perspective (and "used to" wasn't even that long ago). Now it's all but impossible to sign a publishing contract that doesn't include them.

It's actually an exciting time to be involved in publishing. A lot of people find it frightening, but it's fascinating to watch the changes happening.

Unlike many authors, however, I'm not worried by them. I think the industry will morph and change, but that in the end it will emerge even stronger than before.