Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. Readers are reminded that this information is for general information only and that any specific legal problems should be discussed with an attorney. Questions are presented anonymously, with the asker’s privacy protected. Some are composites based on issues I have been asked about in the past. Some were asked at workshops and conferences where I have presented. If you have a question for this blog, send it to authorlaw@yahoo.com. Your question may be edited or combined with others. I cannot answer questions privately and not all questions can be used, but I’ll try to give full coverage to the matters that writers care about most. Ask Author Law is published for information only. Answers are not legal advice. Asking and/or answering a question does not create a lawyer/client relationship. The solutions to legal problems depend entirely on the specifics of the situation, so any writer in need of legal advice should consult privately with a qualified attorney.
Q: How do I decide what rights to grant to a book publisher and what rights to hang on to?
A: “Very carefully” is the tempting flip answer, but seriously, there isn’t really a standard response. If you have an agent, the agent will probably have you retain more rights that you will probably want to keep if you’re negotiating your own contract. In general, a trade publisher will expect, at a very minimum, the primary rights to include exclusive hardcover book publication rights in the English language in North America. The publisher may reasonably expect other exclusive primary rights as well, especially trade paperback and very possibly mass market paperback rights. The publisher will also rightfully expect certain exclusive subsidiary rights, particularly book club rights. The publisher should NOT reasonably expect to get the copyright, so be alert for any unfairly inclusive language such as all rights, work made for hire, or assignment of a copyright.
While primary rights are almost always exclusive (meaning only the publisher can legally exploit them), subsidiary rights can be exclusive or non-exclusive. Which rights you license to the publisher and which ones you retain are best determined by considering who is in the best position to exploit the rights on your behalf and the proposed rate of compensation. If the publisher is likely to market movie rights aggressively, for example, and you don’t have any way to reach Hollywood markets yourself, it’s probably best to allow the publisher to act as your agent. If you plan to engage an entertainment agent, you may prefer to retain those rights.
Another factor in your decision will be the proposed split of income between you and the publisher. A 50/50 split for book club rights is traditional, but with most other subsidiary rights (subsidiary rights are, by definition, all rights that aren’t primary, and vary from contract to contract), the publisher is really functioning as an agent, so the split should reflect that approach. You might have to pay an agency commission of 25% for the marketing of foreign rights, for example, so a 25/75 split is probably appropriate. It’s been my experience, though, that many publishers expect an unrealistic “commission” for the exploitation of subsidiary rights, sometimes approaching 95% for certain electronic rights. Such a lopsided split is not really fair.
Although I don’t like to generalize about contracts, a good practice would be to try to retain as many rights as you can unless you really think it’s to your advantage to let the publisher have them. When negotiating, it’s often useful to ask the publisher what rights it really needs. The publisher’s boilerplate list of subsidiary rights can be usually be pared down and/or the split improved if you take this approach.
Q: How do I decide what rights to grant to a book publisher and what rights to hang on to?
A: “Very carefully” is the tempting flip answer, but seriously, there isn’t really a standard response. If you have an agent, the agent will probably have you retain more rights that you will probably want to keep if you’re negotiating your own contract. In general, a trade publisher will expect, at a very minimum, the primary rights to include exclusive hardcover book publication rights in the English language in North America. The publisher may reasonably expect other exclusive primary rights as well, especially trade paperback and very possibly mass market paperback rights. The publisher will also rightfully expect certain exclusive subsidiary rights, particularly book club rights. The publisher should NOT reasonably expect to get the copyright, so be alert for any unfairly inclusive language such as all rights, work made for hire, or assignment of a copyright.
While primary rights are almost always exclusive (meaning only the publisher can legally exploit them), subsidiary rights can be exclusive or non-exclusive. Which rights you license to the publisher and which ones you retain are best determined by considering who is in the best position to exploit the rights on your behalf and the proposed rate of compensation. If the publisher is likely to market movie rights aggressively, for example, and you don’t have any way to reach Hollywood markets yourself, it’s probably best to allow the publisher to act as your agent. If you plan to engage an entertainment agent, you may prefer to retain those rights.
Another factor in your decision will be the proposed split of income between you and the publisher. A 50/50 split for book club rights is traditional, but with most other subsidiary rights (subsidiary rights are, by definition, all rights that aren’t primary, and vary from contract to contract), the publisher is really functioning as an agent, so the split should reflect that approach. You might have to pay an agency commission of 25% for the marketing of foreign rights, for example, so a 25/75 split is probably appropriate. It’s been my experience, though, that many publishers expect an unrealistic “commission” for the exploitation of subsidiary rights, sometimes approaching 95% for certain electronic rights. Such a lopsided split is not really fair.
Although I don’t like to generalize about contracts, a good practice would be to try to retain as many rights as you can unless you really think it’s to your advantage to let the publisher have them. When negotiating, it’s often useful to ask the publisher what rights it really needs. The publisher’s boilerplate list of subsidiary rights can be usually be pared down and/or the split improved if you take this approach.