The nucleus of any publishing contract is the “Grant of Rights” clause. This provision defines what rights under copyright the author transfers to the publisher to commercially exploit in exchange for payment.
For most writers, when a publisher wants to publish their book, the writer simply signs the contract thinking it is a take-it-or-leave-it proposition. I understand the mindset. A writer likely has been waiting patiently for an offer to attend the publishing dance. She wants to sign the agreement quickly and keep the publisher happy before they can rescind the offer.
But beware. Rushing to the dance floor too quickly can have profound and unwanted consequences depending on what rights she grants to her publisher.
At the beginning of a contract negotiation, the author starts with a number of different rights under copyright, rights the publisher wants and needs in order to publish the book. The author at this point is in her strongest bargaining position. The publisher wants the broadest scope of rights for the lowest price. The writer wants the highest price for the scope of rights granted. The writer may transfer all, some, or very few of those rights to the publisher. The grant of rights can be exclusive or limited in various ways.
The list of rights an author can grant would encompass more than I have space for in this post. In general, the scope of rights include primary (print and ebooks) and subsidiary (film, TV, audio, merchandising uses, reprints by third parties, pre-publications like excerpts in periodicals) and foreign. Over the next few months, I will devote blog posts to exploring these rights in detail. If you need an in-depth primer on what rights can be included in a grant of rights clause, see the resources note below for more information.
Because the rights are valuable to both parties, it is crucial for an author to understand them if he is to negotiate a sound book contract. Here are ten tips for negotiating the grant of rights clause.
- First and foremost, read the grant of rights clause carefully. If the publisher is asking the writer to grant all rights to the author’s work, such blanket language is too broad. Don’t agree to it. Request instead that the grant of rights clause list every right being granted.
- Include language that reserves for the author all rights not granted to the publisher. It is up to the author to make sure the contract language is clear as to what rights are and are not granted to the publisher.
- Ask for the right to approve any sublicense by the publisher (like for paperback or audio formats), and for how much. This prevents the publisher from selling rights at a price without your knowledge and for less than what you should receive.
- Beware of catchall language that grabs all other rights to the licensed work in any format. This is a backdoor attempt at the same overreaching license to all the rights in an author’s work.
- As a general rule, it is unusual for an author to grant non-print rights like TV, film, and merchandising (but not foreign, see below). Normally, authors and agents want to directly exploit these rights themselves. If an author believes these rights are better served in the hands of a publisher, then make sure the rights revert back to the author if the rights have not been licensed after a specified time, like two or three years after the book is published. This allows an author to exploit the rights when a publisher’s efforts are unsatisfactory. As noted above, make sure to include the right to prior approval of any sublicense.
- Larger publishers have foreign rights departments, or international affiliates, so it makes sense they want foreign rights in the counties where they operate. Proceed with caution, however, since the royalties offered are usually less than what an author or agent could acquire directly in said foreign country. An author can request that the publisher pay a market rate. Make sure to reserve the rights to publish in countries not licensed to the publisher. Any rights not sold within a specified time after the US publication should revert back to the author.
- Electronic rights should distinguish ebooks from multimedia uses. Typically publishers include ebook rights under primary rights, like publishing a book in other formats. Make sure the ebook rights prevent the publisher from making changes without the author’s approval, require the work to be published in its entirety, and provide approval rights for the publication of any excerpts.
- If multimedia rights are granted, insist on approval of all formats used and what media is added to the work. Any digital rights not pursued by the publisher should revert back to the author after a specified period post print publication.
- Never agree to assign the copyright to the publisher or let the publisher register the copyright in its name. Ownership of the copyright in the work should stay with the author. What the publisher receives is a license to use the rights.
- The duration of the grant of rights will usually continue for the full term of the copyright (70 years after the author’s death). While most publishers will not agree to a shorter term, an author can make that term conditional. For example, require that termination of the contract and the reversion of rights occurs if the book goes out of print (which should be clearly defined), or the publisher fails to pay royalties or exploit particular rights within a specified date.
These tips for negotiating grant of rights clauses are by no means exhaustive and merely a list of some items to be familiar with during negotiations. As always, if you need in-depth guidance regarding specifics about your publishing contract, consult a qualified lawyer or agent.
Resources: The Writer’s Legal Guide, 4th Edition; Authors Guild; Helen Sedwick; Susan Spann; Writers in the Storm
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