Writers in the Storm

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August 12, 2016

Understanding Ebook Rights

Publishing LawSusan Spann

Whether you publish traditionally or as an author-publisher, it’s critical to understand the rights you own—and the ones you give away (even temporarily) by contract. Otherwise, it’s impossible to tell if you’re getting an excellent deal, an industry-standard arrangement, or an offer you should walk (or run) away from.

Today, let’s look at a few important facts all authors need to know about ebook rights, which normally cover not only “standard ebooks” but all digital and downloadable versions of the author’s work.

Ebook rights are usually licensed to publishers in a contract's "Grant of Rights" paragraph, as part of the Primary Grant of Rights.

The “Grant of Rights” or “Primary Rights” paragraph customarily appears near the start of a publishing contract (and within the first third of self-publishing terms of use).

This paragraph usually addresses a number of different rights, all of which belong to the author as part of the copyright in the work. (Remember: ownership of copyright, and all other rights in the work, belongs to the author until (s)he sells, licenses, or transfers them to someone else—by contract or otherwise.)

In most publishing contracts, the author will grant the publisher a license (legally defined as a "right to use") to the rights specified in the agreement.

Normally, "primary rights" include the rights to publish, distribute, and sell the work in print and ebook formats in certain specified languages and territories. (Be careful not to give a publisher broader rights than it can meaningfully exploit on your behalf!)

Ebook-only publishers shouldn't ask for print rights too, but print publishers normally expect to license ebook rights as well as the right to publish the book in print.

Contracts should never give publishers "Ownership" of copyright or any other rights (including ebook rights).

A license is not the same thing as ownership, and no good publishing contract will ever give a publisher ownership of the author’s copyright (or any other ownership rights in the work). Instead, the contract should give the publisher a license--normally an exclusive license--to publish the work in certain formats.

What is a fair royalty rate on ebooks?

The industry-standard royalty rate on ebooks is currently 25% of either list price (less common) or publisher’s gross receipts on sales (more common). However, some publishers try to persuade authors to accept lower figures (beware!) and some pay royalties as high as 50%. Even higher royalties are often paid on self-published books, where the author’s share of sales may be 75% or more.

What are “enhanced e-books”?

Most authors know what an ebook is (if you don't, I’d normally suggest you Google it, but if you don’t know about “ebooks” you’re probably not all that good with Google either). However, many authors don't know the difference between standard ebooks and enhanced ebooks.

An "enhanced ebook" is an ebook containing not only the text of the work, but also supplementary content designed to enhance the reader's experience. Examples include pop-up maps (that appear when you click a place name in the text), musical scores or other sound effects that accompany the reading, and hyperlinks that open web-based content.

Enhanced ebooks are currently rare, but several companies do now publish and sell enhanced ebooks, either as independent products or as enhanced overlays for publishers’ existing ebook content.

Standard publishing contracts contain an ebook clause that grants the publisher all rights to ebooks "in any and all digital, electronic, and downloadable formats now known or hereafter developed," which includes enhanced ebooks. Some publishers now include enhanced ebooks specifically in the grant of rights as well.

By granting enhanced ebook rights, the author surrenders the right to:

(a) Determine whether or not an enhanced ebook is made,
(b) Control the enhanced ebook content, and
(c) Request a higher royalty rate on enhanced ebooks—unless the contract specifies otherwise, the standard ebook royalty rate applies.

While some publishers may not be willing to negotiate on enhanced ebooks, or even to produce them since the format competes with standard ebooks, authors should be aware of enhanced ebook rights and make decisions about them consciously.

Like any publishing rights, only you--the author--can make the business decision about how (and whether) to grant your rights to a publisher, and on what basis. It’s a business decision each author must make after careful consideration of the contract and the author’s wishes for the book and his or her career. Before you sign, be sure you know where ebooks (and enhanced ebooks) fit into the contract, that you understand the terms being offered, and that you're making the decision you believe is best for you and your work.

Have you read an enhanced ebook? Do you have questions about author ebook rights?

Ninjas-Daughter1Susan Spann
 writes the Hiro Hattori Novels, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. The fourth book in the series, THE NINJA’S DAUGHTER, will release from Seventh Street Books in August 2016. Susan is the Rocky Mountain Fiction Writers’ 2015 Writer of the Year, and a transactional attorney whose practice focuses on publishing and business law. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium. Find her online at http://www.SusanSpann.com, on Twitter (@SusanSpann), and on Facebook (SusanSpannAuthor).



15 comments on “Understanding Ebook Rights”

  1. As always, Susan, thank you for keeping us up to date. Especially with ebooks, the 'standard' is changing rapidly, and it's good to hear the latest!

    1. Thanks Laura! Ebooks are one of the fastest-changing parts of the market, both because the Author's Guild and many agents (and authors) believe the royalty percentages should be higher for authors on ebook sales and because the technology for e-reading is expanding so quickly. It's definitely a space to watch.

  2. Thanks for giving me the heads-up about enhanced ebooks, Susan! Sci fi freak that I am, I've always dreamed about that concept (I want smells! Well, maybe not all the time...). And it's always good to know the kind of language to watch for in a contract.

    1. I'm glad I could put the information out there, Fae - it's so important for authors to know what the possibilities are, in order to make informed decisions when signing contracts and planning for publishing options.

  3. I'm building a Susan Spann library of "what to look out for" in the event I get another contract. I don't want to make the same mistakes I made last time - or at least I want to know it's a mistake before I agree to it!

  4. Once again, I enjoy and learn from your contract information. Thanks Susan! I've shared generously online.

    I write short stories and have several published in Cricket Magazine. I grant Cricket Media "non-exclusive license in the Work and the copyrights corresponding thereto that allows:
    "Right to be the first to publish the work anywhere in the world in any language or in any manner and to be sole publisher of the work for a period of 60 days after such first publication
    Unlimited rights to reprint all or part of work in any manner, volume, anthology, publication, language, or format for sale or otherwise
    Unlimited rights to reproduce, distribute, or display work on electronic databases, online networks, interactive multimedia, digital-based media, etc., now existing or developed in future
    Right to license work on a non-exclusive basis to any 3rd party that is not commercial stock art system or co. and convey right granted to Cricket Media to any such 3rd party
    Right to make, produce, sell or use in all respects work in a derivative work
    Right to reproduce in any manner in promotions, advertising, documentaries, or in any other form or format where the work is not offered for sale but is used to promote the work itself or publication containing work
    You will retain any copyrights & other rights in the work, subject to rights you have granted Cricket. If requested by you in writing, Cricket will display appropriate copyright notice in connection with any publication or other display of work

    Susan, does this mean that I cannot use my story--after the 60 day first right time to Cricket--to create an e-book myself to sell, profits to me?

    Thanks for any assistance you may offer.

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