You Are A Writer. You Create And License Intellectual Property Assets.

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.

You have to understand IP and rights licensing in order to make a living as an author for the long-term, whether you work with an agent or you’re entirely independent.

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.

  1. 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.
    1. If you receive an electronic version of the contract, print it out.
    2. Then go through the printout or a copy of the paper original like you were grading an essay and looking for evidence of cheating.
    3. Go through it paragraph by paragraph.
    4. Pay attention to the sentence structure. (Really!)
    5. Underline things you don’t understand.
    6. Write notes about your concerns in the margins.
    7. Pay particular attention to defined terms.
      1. 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.
      2. 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.
      3. Here’s another example of a defined term, “Blah, blah, blah, blah, blah, blah (“Publish“)”
  2. 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.
  3. Ask Questons: If you don’t understand something you read even after you have diagrammed the sentence, ask what it means.
    1. You can even do it with a Terms & Conditions clause online.
    2. Contact the online help people. If they can’t answer the question, ask them who can and contact that person.
    3. 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.
    4. 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.
    5. Here’s an example of an email/letter you might consider sending:
      1. “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.”
    6. 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)
    7. At the link he found the following in Amazon’s Conditions of Use:

OUR ADDRESS

Amazon.com, Inc.
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:

Amazon.com, Inc.
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:

Copyright Agent
Amazon.com Legal Department
P.O. Box 81226
Seattle, WA 98108
phone: (206) 266-4064
e-mail: copyright@amazon.com

Courier address:
Copyright Agent
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 gave up the practice some time ago, but he used to keep copies of various Terms of Use on different sites to track how they changed over time. Document comparison software makes the job very easy.

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:

Read the Contract!

4 thoughts on “You Are A Writer. You Create And License Intellectual Property Assets.”

  1. This is not legal advice for your particular circumstances, but I’m slightly contrary on this. IMNSHO, one should only use the company’s own stated-on-its-website address for sending a notice of infringement if it’s a fax, a physical-mail notice, or an e-mail notice. Never use a company’s online form; an online form is not, legally, a sufficient notice under 17 U.S.C. § 512 (and, worse, doesn’t leave you — the sender — with a verifiable copy or record of date/time of sending or of receipt)* and is problematic at best with non-US entities in some jurisdictions.

    If you are sending a notice of copyright or other IP infringement, you should also send it to the address that the company has registered with the Copyright Office if at all possible — even if it isn’t a § 512 (DMCA) notice, you should use the same address. Why? Because sending to a “general legal address” is going to get mixed up with every other legal notice… and get mishandled by the same authority-challenged drones.** And it will be very, very useful for you to know that the company hasn’t registered an address with the Copyright Office, because that means the company cannot claim any “safe harbor” under § 512. Similarly if the company hasn’t kept its address up to date so that the notices end up going to a black hole, as AOL found out.

    * We won’t get into the shenanigans too often involved in handling those notices.

    ** This shark, on the basis of over two decades’ worth of interactions, holds the legal staff at the organization cited in points 6 and 7 above below minimal professional regard.

    • I hated when Ellison sued AOL. I got that weird email from him, all in uppercase. It felt like he was suing me, because I was on AOL at the time; still am in fact.

      It is good to finally see some background information about the case.

      Thanks…

      • Allyn, I was Ellison’s lead counsel (for legal ethics reasons, I was not involved with any fundraising efforts; there’s an entire body of law on “litigation funding” that makes well-established plaintiffs’ lawyers shudder, and there was a particularly unfavorable state-to-state conflict at the time to boot). I argued that appeal and won. So I’m as “authoritative” a source on background as there is…

        …subject, of course, to the terms of the ultimate settlement that we achieved on remand. The terms of which are, of course, confidential.

        PV isn’t the place to discuss things on the case in any event.

        • There is always so much history lost when the author dies. Even when you have a so called definitive biography like they tried to do with Heinlein, there is so much left out that utterly misses the story.

          You either have a hagiography or a revisionist take down, with the actual story lost in-between.

          “This is the West, sir. When the legend becomes fact, print the legend.”

          — The Man Who Shot Liberty Valance

          Thanks…

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