Passive Guy put together the following for the IndieReCon online writers conference which continues through today:
Let’s discuss the rights authors own under their copyrights to their books.Although we could talk a long time about what copyright is, for the purpose of this post, we’ll call it the exclusive legal right of the author of a literary work to reproduce, publish and sell a book for the period during which the copyright is in force. Copyright also includes the right of the author to permit others to do the same thing.Copyright is a collection of different rights. Some of these are called derivative works.
Here’s a definition from the United States Copyright Office:
A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and add new original copyrightable authorship to that work. The derivative work right is often referred to as the adaptation right. The following are examples of the many different types of derivative works:
• A motion picture based on a play or novel
• A translation of an novel written in English into another language
• A revision of a previously published book
• A sculpture based on a drawing
• A drawing based on a photograph
• A lithograph based on a painting
• A drama about John Doe based on the letters and journal entries of John Doe
• A musical arrangement of a preexisting musical work
• A new version of an existing computer program
• An adaptation of a dramatic work
• A revision of a website
Note that a derivative work includes uses for the work that are developed in the future. Authors who wrote novels long before ebooks were invented still have copyright protection for their work in the form of ebooks.
So, what is a rights grab for the author of a book?
Here’s Passive Guy’s own definition: A rights grab happens when a publisher demands more rights than to print, publish and sell hardcovers, paperbacks and license ebooks.
Of course, many publishers ask the author to grant many more rights than those three. Common additions are motion picture, television and dramatic rights.
Why does PG not like this?
Does Penguin make movies? Does HarperCollins create stage plays?
Those sorts of things are done by people whose principal business is something other than publishing. Publisher like these sorts of things because all they have to do is contact someone, usually a Hollywood agent, and ask the agent to sell performance rights. Quite often, the author even pays some or all of the agent’s fee through royalty deductions.
That’s a lot less work than editing, printing and promoting books.
An analogous set of rights are translation rights. The right to translate a book into German, French, etc., and sell those books world-wide. There are some exceptions, but quite often, the process is similar to performance rights. The publisher contacts a German publisher or agent and the German publisher does all the work.
Of course, the publisher takes a cut of all of these subsidiary rights, sometimes a very large cut. The author gets what’s left.
So, PG’s standard for what rights an author should grant to a publisher are those that the publisher has the in-house capability of exploiting without involving third-party agents, producers or publishers.
If a book sells well, it will attract people in the movie business and foreign publishers on its own, without the involvement of the US publisher and, if the author retains these rights, he/she keeps all the money.
How does the author know what to do with these non-book rights? Hire an attorney or agent to help. They will charge much less than a publisher will to handle those types of licenses. And the author will be in control of negotiations and the contract terms, not the publisher.
What does rights grab contract language look like? Here’s a short one from a real publishing contract (but not a contract that involves one of PG’s clients):
The Author hereby grants the Publisher the exclusive, worldwide rights to publish, display, reproduce, license, grant subsidiary rights, distribute, and sell the Work, in any and all forms currently, or in the future, known for publishing such material.
Here’s that same contract provision with key terms highlighted:
The Author hereby grants the Publisher the exclusive, worldwide rights to publish, display, reproduce,license, grant subsidiary rights, distribute, and sell the Work, in any and all forms currently, or in the future, known for publishing such material.
Often grants of right are significantly longer than this, but this gives you the idea of the kinds of things to look for.
Why does a publisher need worldwide rights if it only publishes in the US?
Why does a publisher need subsidiary rights if it’s never produced a movie or sold rights to a movie?
Why does a publisher need rights to some unspecified future use of the work when the publisher doesn’t even know what that might be?
If you’re looking for a compromise between a rights grab and PG’s absolutist position about hardcover, paperback and ebooks, here are some ideas:
1. The publisher has the right to seek movie, TV, etc., deals for a period of time – three years, for example. If no deal is consummated during that time, those rights revert to the author.
2. The first $1 million derived from the sale or license of any subsidiary right is divided 50/50 between author and publisher and any revenues above that are paid to the author.
3. The publisher has rights in any countries where it presently has offices and operations with the author retaining rights everywhere else. The countries should be listed.