Selection Rights - Do I Have a Choice?

Welcome back to the Thursday contracts series!

This week, we continue our journey through John Q. Penman's Subsidiary rights clauses.

Last week, we mentioned that Subsidiary Rights means "rights to publish or produce works in different formats based on or derivative of the original work under contract." and we looked at the first of our long-suffering author's clauses.

This week, we move on to subparagraph (b):

(b) "Selection Rights," meaning the rights (1) to create, publish, and use condensed, adapted, and/or abridged versions of the Work, (2) to use portion(s) of the Work in electronic media, (3) to use all or any portion of the Work as part of Collections in any format or other media in which rights are granted to Publisher in this Agreement, and (4) to grant permissions and license third parties to use the Selection Rights granted to Publisher in subparagraphs (b)(1)-(3) hereof.

Five lines of text, but densely packed with content.

In contracts, numbered sections are treated as lists, which means the Publisher wants four different sets of rights, which together make up "Selection Rights":

1. The right to create, publish, and use (which essentially means "publish"), shortened versions of the Work - for example, for book clubs or Reader's Digest-style abridged editions. Abridged editions might remove sexual content, or they might simply be shorter versions of the Work designed for different purposes - such as audiobooks. (Did you know some companies' audiobooks are shorter versions that don't contain every word of the printed work? It's true - they do it to shorten the running time of the recording.)

2. The right to "use portion(s) of the Work in electronic media." This sounds like e-books (and to some publishers, that's what it means) but most of the time, this refers to sample chapters, shortened editions of e-books (or audiobooks), and other times when the publisher might want to use less than the Work as a whole.

3. The right to use "all or any portion of the Work as part of 'Collections.'" Many authors worry that this will be used to turn their books into anthology selections rather than stand-alone works, but reputable publishers don't intend that. (Remember - they make their money off sales of the book, not sales of anthologies.) More commonly, this term is used when the Publisher wants to create a collection of sample chapters from different upcoming books (for example, to distribute to librarians and reviewers in an attempt to generate buzz for a group of upcoming releases) or to create a collection of existing books to show off an imprint's titles. Publishers do create anthologies, too, but the intent of this provision is more for advertising and promotion than for sidetracking the author's novel to an anthology purpose.

4. The right to sublicense (license to third parties) the other Selection Rights contained in the paragraph. Most authors panic at any mention of third party licensing - but remember, if you're working with a reputable publisher, this "sublicensing" and third party licensing generally isn't done in a way that hampers sales. This right is more commonly used for things like sample chapters in other languages or in collections distributed by third party distributors under contract with the publisher.

For the most part, provisions like these are standard and don't present any real risk to John - or to you. That said, the Author's Rule of Rights Protection applies here, just as it does to any other grant of rights: Grant only what the publisher has the capacity and intent to use, and only what you're willing to give away.

If you don't know what the publisher intends to do with these rights, or how it commonly uses them, DO NOT BE AFRAID TO ASK.

Ask the publisher, ask your agent, or ask your attorney - and then evaluate whether you're willing to give away what the contract is asking for.

Tune in next week, when we'll continue our journey with a look at the next subsection: Translation Rights.

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.