November 14th, 2014

Sometimes, Two Rights… Make a Wrong

Susan Spann

Understand your rights before signing...

Understand your rights before signing...

Exercise caution when reading the “Grant of Rights” in your publishing deal. The “grant of rights” designates exactly which rights the author is licensing (or “granting”) to the publisher, and in many cases it seems straightforward, but dangers and pitfalls often lurk in this part of the publishing 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 most common traps and pitfalls to beware in a grant of rights:

Pitfall #1: Grants of rights split across multiple paragraphs.

This isn’t a “trap” as much as a warning. Most publishing contracts contain a primary grant of publishing rights in the paragraph labeled “grant of rights” and then a grant of “secondary rights” in later paragraphs. Authors who aren’t paying close attention (or who don’t read every paragraph of the contract carefully) might miss the later grants, and not realize just how many rights the publisher is requesting.

Note: this isn’t usually an attempt to “pull a fast one” on the author. Legitimate publishers’ contracts are open about the places where rights are being granted. In most cases, use of different paragraphs to transfer different types of rights is merely a function of the way attorneys write contracts.

Solution: Read the contract carefully. If you’re having trouble keeping track of the rights, make a two-column list with “publisher” on top of one column and “author” (or “me”) in the other. Every time a right is mentioned, list it in the appropriate column. When you’re finished reading, you’ll be able to see exactly which rights you’re granting and on what terms.

Pitfall #2: Copyright grabs.

This occurs when the contract contains language stating the publisher will register copyright “in Publisher’s name” or otherwise states that copyright in the work will belong to the publisher. Legitimate publishing contracts do not contain an assignment of copyright. They contain “licenses” or “grants of permission” for publishers to make use of certain rights, but copyright always remains with the author alone.

Note: The publisher typically does own the copyright on the cover art and other art or graphics supplied by the publisher. That’s not the same as copyright in the book itself.

Solution: Never sign a contract that requires you to assign your copyright to the publisher. Make sure all contracts contain a clear statement that copyright in the work belongs to the author alone.

Pitfall #3: The contract takes more rights than the publisher needs.

Publishers need the rights to publish your work in as many formats as the publisher actually intends to publish. If the contract is for print and ebook, the publisher needs both print and ebook rights. Publishers usually ask for additional (subsidiary) rights as well, and it falls to the author to evaluate and decide which rights to grant and which to withhold.

As a general rule, authors should beware a deal where the publisher insists on film, TV, apps/gaming, and merchandising rights. These rights typically spring from the author’s work – not that of the publisher – and represent a windfall to the publisher. Most of the time, authors prefer to keep these rights for themselves, and many (if not most) legitimate publishers have no problem allowing authors to keep them.

Foreign sales and translation rights are a trickier issue, because many publishers have a foreign rights department that handles the sale of foreign and translation rights. The key is remembering that the publishing deal is a business transaction. Evaluate the offer and make the decision with your business mind—not your heart.

Note: Many times, publishers will agree to reversion of certain subsidiary rights and rights to publish in certain formats if the rights are not licensed or sold within a certain, specified time. That may be a good “middle ground” for rights the author would like to keep but which the publisher insists on making part of the initial deal.

Solution: Creative negotiation, willingness to compromise, and ultimately the willingness to walk away from a deal are the keys to success with broader rights requests. Evaluate the deal and decide what you are willing to offer (meaning, you, as opposed to what your mom/friend/cousin/person-at-the-market thinks you should do). Sometimes we have to compromise to make a deal happen—but never forget that a bad deal is worse than no publishing contract at all.

This post doesn’t cover all of the issues surrounding grants of rights, but it does hit the high points of some very important contract pitfalls.

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And since we’re on the topic: what are your biggest rights-related concerns? I'll be answering your questions in the comments.

About Susan

SusanSpann_WITSSusan 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).

 

Top photo credit: LOSINPUN via photopin cc

13 responses to “Sometimes, Two Rights… Make a Wrong”

  1. Your post is timely, Susan. I am looking for an attorney to look at a publishing contract. Do you have a recommendation? Or do you consider it necessary to have an attorney review a contract? Thanks.

  2. Jenny Hansen says:

    Susan, thanks so much for posting with us! I adore these #PubLaw posts, and we all appreciate you sharing your expertise. Just know that I will NEVER sign any pub contract without you giving it a looksee. 🙂

  3. Shirley Wine says:

    Thus is so timely for me as I am currently looking at a 3 book deal contract. Thanks for the clear concise outlining of the major pitfalls

  4. Another thing to consider is whether you really want to retain certain rights if you don't have the time or expertise to use them. Ebooks are a great example. I had the digital rights to my first two novels and found it a pain in the neck to finally get those novels up for Kindle and Nook, plus it cost me up front for art work and formatting. For my third book, I was happy to let the publisher do all the work and take a bigger chunk of the royalties

    • Susan Spann says:

      That is a VERY astute observation, Pat. I tell authors all the time to consider that question, and to consider it seriously. If you're not able to (or interested in) spending the time to sell the rights, letting the publisher sell them may end up in a "windfall" if they can sell things you can't!

  5. LauraDrake says:

    Thanks for sharing your wisdom, Susan! This is important stuff!

  6. If I paid CreateSpace for the cover art-work, do I own it or do they have the copyright?
    I want to use the my book cover on business cards.


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