From The Creative Penn:
Language is powerful.
We choose words carefully in our written works because we understand their impact. They carry a message from one mind to another. They shape ideas. They can change lives.
But writers often use language carelessly when it comes to the business side of being an author, and it shows that many still don’t understand copyright, and how rights licensing can impact your publishing choices, as well as your financial future.
I’ve run across several examples of this recently in discussion with author friends and also online, so I thought it was time for a refresh on intellectual property (IP) — and how important it is to define terms as we move toward Web 3 and a new iteration of what ‘digital’ even means.
It might take a little getting used to, but once the penny drops around intellectual property, your language will change and you will have the power to shape your author career in a much more effective — and profitable — way.
Note: I am not a lawyer/attorney and this article is not legal or financial advice.
This article is based on learning about intellectual property from books, courses, and my personal experience publishing independently since 2008. It is a huge topic, so I can only scratch the surface and hopefully, give you something to think about and resources to take your knowledge further.
In this article, I cover:
- An overview of intellectual property rights related to written work
- Original written work = Intellectual property asset
- Print, Ebook, Audio
- Other rights licensing opportunities
- What rights have you licensed? Are you leaving money on the table? Plus, the issues with licensing “digital” rights as we move toward Web 3.
- More resources — books, courses, podcast interviews
Link to the rest at The Creative Penn
PG says every author should save a copy of the OP for future reference.
Some of the items Ms. Penn discusses will be familiar to regular visitors to TPV, but others may not be.
Here are a couple of excerpts PG fully endorses:
Rights licensing is usually based around:
- Format e.g. ebook, paperback, audiobook defined to specific types of each and royalty levels for sale
- Territory e.g. North America, UK Commonwealth, World
- Language e.g. German
- Term e.g. 7 years
- Specific work (sometimes more than one, and sometimes with an option for other work in the world or under the same author name)
There are also many options for subsidiary rights licensing. Some include:
- Adaptations — film, TV, web series, plays/theatre, graphic novel/comic, podcast series, gaming, merchandise, online courses
- Serial rights, reprints, anthologies
- Book clubs
- Public lending rights, reproduction rights (for example, ALCS in the UK collects these on behalf of authors for library borrowing and photocopies etc.)
Selective rights licensing means you choose to limit the license to whatever the publisher is capable (and likely) of producing. It is very unlikely that a publisher will be able to use all rights in all formats in all territories in all languages.
For example, I license World French electronic, audio, and print for specific non-fiction titles for five years with a first option to renew.
If you license selectively, you can also independently publish in other formats, territories, and languages. For example, I have now sold ebooks in 168 countries — and that’s just through Kobo.
If you have any form of written content available for someone else to read or purchase or listen to, then you have signed a contract that will include some kind of license.
What rights have you licensed? Are you leaving money on the table?
If you are traditionally published and someone has paid you for your rights, check your contract to see what you have agreed to.
Many traditionally published authors I talk to will say they don’t know what rights they have signed, which shows they don’t understand how copyright works. If you don’t know what you’ve signed, then you don’t know what else you can do with your body of work. If that’s you, go check your contracts. You might be leaving money on the table.
If you’re an indie author, you sign a contract when you accept the terms and conditions of whichever service you use to publish. So read the Ts&Cs, download a copy, and keep them somewhere as evidence of what you have ‘signed.’
Many of the sites have a non-exclusive contract for a specific format, e.g. Kobo has a non-exclusive right to your ebooks so you can always publish them elsewhere.
Some sites have exclusive options. For example, if you opt into KDP Select and make your ebooks available on Kindle Unlimited, that is a 90-day exclusive contract for your ebook, so you can’t use any other publishing or distribution service, or sell direct, for the term you enroll. That doesn’t stop you from licensing your audio or print rights, it just limits your ebook options. . . .
Some sites have terms and conditions that are being questioned by authors and author organizations, for example, check out #audiblegate and the investigation into Audible’s contracts.
Here are a few points PG will emphasize/add to Ms. Penn’s very good post.
- Read the Contract – Yes, PG knows that it’s not great fun to read any sort of contract (he has read thousands so he speaks from experience), but read it anyway.
- If you receive an electronic version of the contract, print it out.
- Then go through the printout or a copy of the paper original like you were grading an essay and looking for evidence of cheating.
- Go through it paragraph by paragraph.
- Pay attention to the sentence structure. (Really!)
- Underline things you don’t understand.
- Write notes about your concerns in the margins.
- Pay particular attention to defined terms.
- Defined terms may be included in a separate section of the contract. PG has seen some contracts that seemed perfectly reasonable until he hit the “Definitions” section in paragraph 36.A.(1) where all hell broke loose.
- Here’s an example of a defined term clause, “As used herein, “publish” shall mean . . . .” As mentioned in the prior subparagraph, the “As used herein” piece may be found in an entirely different location in a 30-page contract than the place which talks about publishing your book.
- Here’s another example of a defined term, “Blah, blah, blah, blah, blah, blah (“Publish“)”
- Read the Damned Contract! PG knows that when you were two years old, you pitched a fit whenever your mother tried to feed you peas and she finally gave up. But you’re an adult now and you have learned to do hard things, like reading a publishing contract or a Terms & Conditions clause on Amazon’s or somebody else’s website.
- Ask Questons: If you don’t understand something you read even after you have diagrammed the sentence, ask what it means.
- You can even do it with a Terms & Conditions clause online.
- Contact the online help people. If they can’t answer the question, ask them who can and contact that person.
- If you can’t get a good response via the Help link, do a bit of searching on the website or online. You’re looking for the Legal Department or Corporate Counsel. If the website is owned by another company, look on that company’s website.
- If corporate counsel has an email address, send them an email. If they have a mailing address, also send them a paper letter that says the same thing.
- Here’s an example of an email/letter you might consider sending:
- “Dear ______________: or Dear Corporate Counsel: I was reviewing your Terms and Conditions and in Paragraph 15 (A), I found the term, “publish” but I could not find a definition of this term anywhere in the Terms and Conditions. I believe “publish” is an ambiguous term and I am confused. In the Merriam-Webster’s Dictionary (2019 edition), “publish” is defined as “blah, blah, blah” but in the New Oxford American Dictionary (2021 edition), “publish” is defined as “blah1, blah1, blah1.” As you can clearly see, the two definitions are not identical and, I believe, do not define the term, “publish” in the same way. My particular concern is whether the term, “Publish” as your company uses it includes or does not include blah, blah, blah. Could you please clarify. I started a discussion group concerning this question on Reddit and have received a variety of different opinions, including some by people who say they are attorneys, but you can never tell if someone is telling the truth or not online. One of the people who responded said he was a law student and was going to raise my question in his intellectual property class to see what the professor and other students think about your company’s definition.”
- PG just did a Google search for “legal department” on Amazon’s U.S. site and found this link (https://www.amazon.com/gp/help/customer/display.html?nodeId=GLSBYFE9MGKKQXXM)
- At the link he found the following in Amazon’s Conditions of Use:
P.O. Box 81226
Seattle, WA 98108-1226
And a little farther down, he found this:
HOW TO SERVE A SUBPOENA OR OTHER LEGAL PROCESS
Amazon accepts service of subpoenas or other legal process only through Amazon’s national registered agent, Corporation Service Company (CSC). Subpoenas or other legal process may be served by sending them to CSC at the following address:
Corporation Service Company
300 Deschutes Way SW, Suite 208 MC-CSC1
Tumwater, WA 98501
Attn: Legal Department – Legal Process
And farther down he found this:
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT
If you believe that your intellectual property rights have been infringed, please submit your complaint using our online form. This form may be used to report all types of intellectual property claims including, but not limited to, copyright, trademark, and patent claims.
We respond quickly to the concerns of rights owners about any alleged infringement, and we terminate repeat infringers in appropriate circumstances.
We offer the following alternative to our online form for copyright complaints only. You may submit written claims of copyright infringement to our Copyright Agent at:
Amazon.com Legal Department
P.O. Box 81226
Seattle, WA 98108
phone: (206) 266-4064
Amazon.com Legal Department
2021 7th Avenue
Seattle, WA 98121
PG advises keeping a copy of your email and the online contract as it existe when you reviewed it in an electronic file on your computer. Insert the date in the copied documents in addition to the date your computer assigns to the file.
Electronic copies will allow you to compare different versions of the Terms and Conditions over time to see whether any changes were made as a result of your email.
PG would be surprised if most online sites would fail to respond to an email such as he described. Potential ambiguity in a contract should raise a red flag with any competent attorney.
If a provision is ambiguous or subject to two different interpretations and a lawsuit follows, a judge will decide what the provision really means. As a very general proposition, a genuine ambiguity in a written contract means the judge will be more likely to interpret the ambiguity against the party that drafted the contract, particularly if, like Terms and Conditions used by online companies, the contract is a take-it-or-leave-it proposition.
If you don’t receive a response to your letter and email asking about the meaning of the terms and conditions, you could follow up with an email noting that you haven’t received a response.
If you don’t receive an answer to your question at this point, go ahead and post the T’s & C’s and your questions about them to several relevant online discussion forums and see what happens. Remember squeaky wheels and grease.
It’s clear that PG has gone on way too long about this topic and needs to do something useful. He will leave with one final admonition: