Writers in the Storm

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September 12, 2014

Grant of Rights … or Wrongs?

Susan Spann

SusanSpann_WITSSpring is the time “when a young man’s fancy turns to thoughts of love,” but in autumn, writers dream of contract offers. With the summer contract season over, and many authors “on submission” with agents and publishers alike, the delights—and dangers—of publishing contracts gain an important focus at this time of year.

One of the most important, and often most confusing, segments of the publishing contract is the “Grant of Rights.” This section, which often encompasses more than a single paragraph in the contract itself, designates exactly which rights the author is licensing (or “granting”) to the publisher in the contract.

Contract language varies widely from publisher to publisher, and even from deal to deal, but let’s take a look at some of the common characteristics authors should look for (and some to avoid) in grants of rights:

1.  Primary Rights: Print, ebook.

The standard “grant of rights” in a publishing contract normally includes both print and ebook rights. Most contracts also include a laundry list of other rights, but those are generally negotiable (to one degree or another). At its core, the publishing contract normally focuses on print, ebook, and some important related rights.

If your publisher is a digital only publisher (or imprint), the publisher may or may not want print rights also. Otherwise, all publishers will generally ask for print and ebook rights, and in most cases those rights are not negotiable. Ebooks are commonplace, and it’s rare for a publisher not to want the rights to publish your book in print and electronic forms and formats.

“Print and ebook” normally also includes serial rights (the right to publish your work in serial format rather than in a single volume—though publishers don’t generally do this unless they discuss it with the author in advance) and non-dramatic reading rights (which often translates to “audiobook rights” … see more about that in a minute).

These rights also normally include the right to produce or license royalty-free “accessible editions” for the handicapped. While this is a good idea in terms of providing access to charities and handicapped persons, most publishers will add language requiring them to split any profits they do receive on such licenses (or from handicapped-accessible editions of the work) with the author … but you need to know to ask for it.

2.  “Enhanced Ebooks” and audiobooks.

“Enhanced ebooks” are ebooks which include other forms of media—for example, video clips, interactive maps, soundtracks and audio extras. They’re not too common now but may become more popular in years to come, and many publishers have started including language governing them now.

Audiobooks, in various formats, are more familiar to authors and readers, and most publishers’ standard contract forms do ask for audio rights. Many publishers will also leave these rights with the author if you ask.

3.  Subsidiary Rights: Film, TV, merchandise, apps and gaming.

Subsidiary rights are one of the most contested clauses in publishing contracts, and publishers’ responses to an author’s request to withhold them varies widely. Most large publishers recognize the author’s right to hold back these important rights, and will eliminate them from the contract upon request. Other publishers want to share in film, TV, and merchandising rights, and to have the right to license those rights on the author’s behalf.

Ultimately, the decision whether or not to license these rights is a business decision the author must make, but I advise clients to keep these rights and not to hand them over to a publisher who may or may not sell them, and may end up with a windfall if the book becomes popular enough to inspire a film or television series.

4.  Territorial rights: worldwide, North American, U.S. – the sky’s the limit.

Most publishers want (and need) worldwide ebook rights, and it makes sense to allow worldwide distribution in ebook format. Print books are another matter entirely, however, and authors should take care to ensure they grant the publisher only those rights the publisher has the capacity to fulfill in a meaningful manner. In particular, small publishers without good distribution may not have the capacity to sell or distribute books abroad. Evaluate territorial rights with care to ensure the clause you grant is reasonable under the circumstances.

5.  Languages: English only vs. translations.

Most standard publishing contracts contain “translation rights,” meaning the right to translate or license translation of the author’s work into any (and every) language. As with territorial rights, authors should make sure the publisher has the ability to exercise these rights, and a history of licensing good translations, before signing over valuable rights.

Some publishers have active translation and foreign rights departments, while others simply want to possess the rights in case of a windfall. Talk with your publisher during the negotiation process and see whether licensing translations makes sense in your particular situation. If the publisher won’t negotiate for outright elimination of translation rights from the contract, ask about reversion after a stated period of time if the publisher hasn’t utilized the translation rights within a certain period: for example, the ability to terminate and reclaim your translation rights after 36 months if the publisher hasn’t licensed or arranged for translation of the work before that time.

6.  Reservation of rights – a normal, but important, protection.

Make sure your contract has a line—somewhere—which states that “Author reserves all rights not [expressly] granted to Publisher in this Agreement.” That’s called a “reservation of rights,” and it does exactly what it seems to: it makes it clear to a court that you’ve given over only the rights the contract says that it includes.

This isn’t a comprehensive explanation, but it gives a “first impression” of the things an author should look for in a publishing contract’s grant of rights. Next month, we’ll return to the grant of rights for a look at some common rights-related pitfalls authors should avoid.

Have you ever negotiated a grant of rights? What are your biggest rights-related concerns?

About Susan

BladeCoverSusan Spann writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month. The second Shinobi Mystery, BLADE OF THE SAMURAI, released on July 15, 2014. Susan is also a transactional attorney whose practice focuses on publishing law and business. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium. You can find her online at her website, http://www.SusanSpann.com, and on Twitter (@SusanSpann).

15 comments on “Grant of Rights … or Wrongs?”

  1. I always learn something from your posts, Susan, thank you.

    I understand that contracts are now coming with 'enhanced' included in publisher's rights, because authors are creating and using these versions as a way to self-publish before they get their rights back.

    Have you heard that?

    1. I haven't heard that exactly, Laura, but it wouldn't surprise me. In fact, I can think of several cases where it might solve some other contract problems (while possibly also creating new ones...)

      I do know that some enhanced ebook publishers have started approaching authors about contracting separately for enhanced ebook rights to works under contract.

      Mainly, I think authors need to be aware that these rights should be spelled out separately in contracts, starting now, so it's clear moving forward who has the license on them.

      1. What does 'enhanced ebook rights' mean? What is that and is it not a concern for print books as well?

        When I signed my newest contract the publisher lets authors retain subsidiary rights automatically, meaning that's how their contract is worded. I like that. My other publisher retains ALL subsidiary rights and doesn't allow for negotiations on this issue at all, even by agent, I've heard. I didn't understand some of the newest contract terms so I asked. I urge all authors NOT to hesitate to ask the publisher EXACTLY what something means if you don't know or, like me, can't afford a lawyer to tell you.

        Great post. Thank you, Susan!

  2. Thank you for sharing this. It really helps seeing the contract language broken down in lay terms that I can understand. 🙂

  3. Great advice as always, Susan. Thanks for pointing out the big things to watch out for. A demand for movie rights would be a deal breaker for me.

  4. Fantastic post, thanks Susan. I'm currently in negotiations for foreign rights and have taken professional advice, but your information serves as a great reminder.

  5. I always read your posts here, Susan. You make things clear even when clarity is difficult, like in contract language. Thanks again for writing these articles! 🙂

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