Thursday, February 21, 2013

Subsidiary and Serial Rights - Not Just for Breakfast Anymore!*

*Yes, it's a terrible pun. I'm a lawyer...don't hold it against me.

Welcome back to our continuing journey through John Q. Penman's publishing contract. We've spent two weeks on Royalties, and now it's time to look at the term that follows: Subsidiary Rights.

Subsidiary Rights means rights to publish or produce works in different formats based on or derivative of the original work under contract. 

(Sorry ... the legalese got away from me there.)

In plain English: Subsidiary rights means rights other than the print and ebook rights the publisher needs to produce the book itself. This could (and often does) include film and TV rights, gaming rights, rights to produce apps, and a number of other different rights - some of which are negotiable and others, usually not.

These rights are important to authors, so we'll be taking our time and examining each type in the weeks to come.

In John's contract, the subsidiary rights paragraph starts simply enough:

"Subsidiary Rights. The following additional and subsidiary rights in the Work are included in the grant of rights and defined as follows:"

Pause for a moment to read that again. The rights mentioned in this paragraph - which isn't the grant of rights paragraph - are "included in the grant of rights." This means that all of the rights the publisher gets with regard to the work itself - exclusive, for the term of copyright, and worldwide - also apply to every group of rights contained in this paragraph.

That language can be a trap for the unwary, and it's an important reason to read and understand every paragraph of the publishing deal, not just the grant of rights. The language is intertwined and the paragraphs work together. Note that the publisher isn't trying to pull a fast one here. Subsidiary rights require a lot of space and a lot of definition. They need a paragraph of their own. But the author who doesn't read the entire contract may find himself or herself stuck all the same.

We haven't got time or space to discuss the entire subsidiary rights paragraph today, but let's look at the first sub-paragraph:

(a) "Serial Rights," meaning the rights to use all or portions of the English language versions of the Work in newspapers, magazines and other periodicals before, on, or after the date the Work is first available for sale to the public in book form, including the right to create abridged, adapted and condensed versions of the Work for such serial use.

Serial rights are interesting creatures, because most publishers don't choose to publish books serially anymore. The money, for the most part, comes from publishing the book as a whole in printed and ebook form.

That said, most publishers want the serial rights, and it's useful to have them. Why? Because it allows the publisher more freedom to market the Work in different ways. For example, offering sample chapters in ebook form to librarians in advance of publication, or publishing chapters in a collection highlighting selections from upcoming works. Serial rights give the publisher more freedom, and for that reason most publishers still insist on buying them along with the publishing rights to the Work.

Could the publisher choose to publish the Work as a whole in serial format under this clause. Yep. It could. But will it? Probably not - though some authors and publishers do experiment with the format. (John Scalzi's forthcoming THE HUMAN DIVISION is one example - the work is available for purchase in serial format now, and will be available as an entire book later this year.)

Serial rights aren't something for authors to spent much time fretting about. Generally speaking, if a publisher wants to buy and publish a book, they're not interested in lowering profits by making the chapters available for free. As a practical matter, serial rights give the publisher flexibility in marketing the Work - and for most authors, that's actually a good thing.

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.

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