Thursday, March 14, 2013

Dude, Where's My T-Shirt?

Once again, Thursday's "legalese decoded" post dives into the Subsidiary Rights provisions of John Q. Penman's fictitious publishing deal.

As we've mentioned before, Subsidiary Rights are "rights to publish or produce works in different formats based on or derivative of the original work under contract."

Or, in English: the rights other than books and ebooks the Publisher gets to exploit.

This week, sneaky subparagraph (d):

(d) "Merchandising Rights," meaning the right to exploit the Work and Author's name (as Author of the Work), and/or material, excerpts, characters, settings, plot elements and situations, facts, ideas and/or events appearing and/or based on in the Work in, on, and in connection with merchandise, products, services and other commercial uses.

And ... hold it right there, Mr. Publisher.

This is the first paragraph we've examined that John should ask the Publisher to delete in its entirety. Here's why:

The paragraph gives the Publisher the right (and remember, according to the lead-in to this set of terms, that means the EXCLUSIVE right) to produce "merchandise, products, [and] services" based on or arising out of the Work and all aspects of the Work.

Even character lunchboxes? Yep.

Even T-shirts? Yep.

Even towels, bubble bath, toothbrushes? Absolutely.

And exclusively.

Under this clause, the Publisher gets to make (or license third parties to make) those items - not the author, and not third parties who might approach the author asking for rights. John has to wait and see what deals the Publisher chooses (or doesn't choose) to arrange.

If the Publisher does make deals to produce any products or services under this clause, John would be entitled to royalties (assuming the contract states so later on - and trust me, it does) - but that will never give John the level benefits he would get if he made those deals himself.

The publisher doesn't need merchandising and product rights in order to publish your book. 

We've mentioned before that smart authors grant only the rights the Publisher has the capacity and the intent to exploit. Today we're adding a caveat to that rule: Smart authors grant only the rights the Publisher reasonably needs to benefit from production of the book and ebook versions of the Work (and, perhaps, enhanced e-books, though that's a topic for another week).

T-shirts are something completely different - and merchandising rights are something the author alone should retain.

Authors sometimes ask me, "Will the publisher really delete a whole paragraph just because an unpublished author asks?"


In fact, I've never had a legitimate publisher argue over the merchandising rights.  (NOTE: That doesn't mean it's never happened to anyone - but it's never happened with one of my clients' contracts.)

So learn this lesson from John: strike the merchandising rights from the contract and keep that T-shirt where it belongs - on your back.

Would you have thought to keep your merchandising rights? Did you know that clauses like this are negotiable, even for first time authors? I'd love to hear your thoughts in the comments!

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.


Unknown said...

Good to know. Although, at this point, I'm trying to imagine having something published so marketable and popular someone would want to create merchandise around it!

Susan Spann said...

Good call, Julie! Step 1 - write something awesome. Step 2 - protect it!

Patricia Stoltey said...

I'd hate to think a little clause like that would deprive me of the right to have coffee mugs made with my cover art on them. Those were the best ever items to place in a gift basket. Another very helpful post, Susan.

Shannon Lawrence said...

I never would have thought of that, no, nor would I have thought I could have a section removed. Very helpful, thank you!

Shannon, visiting from Writing From the Peak

Chiseled in Rock said...

I'm glad the post was helpful! It's certainly nice to be able to help spread the word here at Chiseled in Rock.