Publishing Contracts 101 – Grant of Rights

Whether you’ve received your tenth publishing contract or you are getting closer to obtaining your first one, publishing contracts can seem confusing and overwhelming.

Contract Exam (1)

One of the initial clauses found in these contracts is the “Grant of Publisher Rights.” It’s an important clause and it determines what you’re licensing to the publisher and what you are legally keeping for yourself. The clause includes two types of rights: (1) publication rights and (2) subsidiary rights. Publishing contracts are written to protect the publisher, and publishers always seek the broadest possible grant of rights. But as with all contracts, these clauses are negotiable. Some important things to know:

The author owns the copyright. In a grant of rights clause, the author is licensing, not selling the copyright. The author will eventually get their rights back in the reversion of rights clause of the contract (a discussion for a future blog post).

Close-up of a fountain pen

So how can an author negotiate the grant of rights clause? Here are some concrete examples.

Limit publisher’s grant of rights to legitimate ones

Be professional. Tell the publisher that you are willing to license any rights they legitimately need, but that you would like to retain the rights to the work that they don’t need and have no plans to use. Ask yourself if the publisher is just including everything in the contract, even rights that they have no intention of exploiting?

Example: foreign language rights. Does the publisher produce foreign language books or are they just collecting rights?

If the answer is no, then politely ask the publisher why it needs that right and how it intends to exploit it. If they do not intend to exploit the right, then you can ask to have it stricken. You can also suggest that you will negotiate in good faith in the future if the publisher later decides it needs the right.

What about ebooks and audio books?

In today’s publishing world, you probably won’t be able to retain ebook rights. Many publishers legitimately need them. That being said, if you write a romance novel, chances are the publisher may not need mixed media rights such as ebooks with pictures or sound (these does not include audio books). And if they do not translate ebooks into foreign languages, then this may be a right you’d like to retain.

As for audio book rights, if your publisher develops them then you can license this right to them. However, just like foreign language rights and media rights, if a publisher doesn’t  develop audio books, then you may want to negotiate to keep these rights. Who knows? You may want to produce your own audio books.

Other subsidiary rights

These can include movie and screen play rights, abridgements, anthologies, special editions, book clubs and more. Each of these can be considered separately. Is your publisher known for developing movies or screenplays? And remember, if your novel hits it big and your publisher approaches you with a movie deal, then you can always negotiate in the future!

To sum it all up, if your publisher is seeking a very broad grant of rights that they don’t legitimately need, then consider asking to have them separated out. Authors can license the rights to someone else or keep them until a future time when they can develop them themselves. In a perfect world, the author and publisher will work together to have a fair grant of rights clause for today’s constantly changing marketplace.

Please note, this blog post is not legal advice. If you are unsure of what you’re signing, don’t sign it and seek legal advice. Good luck!

You can find me at:

 www.tinagabrielle.com

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Option Clauses in Publishing Contracts – friend or foe to an author?

As mentioned, I’m going to talk about different aspects of publishing contracts in my blogs with the femmes. This month’s topic is option clauses.

We’ve all heard of option clauses in publishing contracts. But what exactly are they and how important are they to authors?

In simple terms, option clauses require an author to offer her next book to the publisher before anyone else. They’re also referred to as “a right of first refusal” clauses. It’s fair to assume that any clause in a contract is written in favor of the party who wrote it. In this case, the publisher.

 

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Now I know of authors who like the option clause. They say it gives them a sense of comfort knowing the publisher wants their next book. But this could very well be a false sense of comfort. Remember what I just mentioned above? Any clause in a contract is written in favor the party who wrote it. What the option clause is doing is prohibiting the author from submitting to other publishers while the publisher has no related duty. Not entirely fair, right?

If you’re a new or even a midlist author, you may not be able to eliminate the option clause entirely, but you may be able to effectively and professionally negotiate some points. Here are some concrete examples.

Limit the terms

Try to limit the word count or genre or both. The more specific the language of the option, the better for the author. For example, if the contract says “for author’s next fiction novel,” you can attempt to limit the option to “for author’s next 50,000 to 60,000 word contemporary paranormal romance.”

Limit the time you are required to submit your next book

For example, limit the amount of time you have to submit another book under the option clause, for example, number of years (one or two years). Otherwise, an option clause may be construed as endless.

Limit the publisher’s time to respond

Try to limit the publisher’s time to respond to the option work offered. For example, thirty to ninety days.

Limit the option work to a specific proposal

For example, write a short paragraph of your next work that you want covered under the option clause.

So have you ever heard of another way to effectively negotiate any type of contract? What’s your best tip? I’d love hear your views, so please share!

And please look for my next blog on different contract clauses.

Tina Gabrielle

In The Barrister's Bed   In the Barrister's Chambers   Original Artwork A Perfect Scandal   LADYOFSCANDAL Cover

You can find me at:

 tinagabrielle.com

 http://twitter.com/tinagabrielle

 https://www.facebook.com/TinaGabrielle

The Art of Contract Negotiation for Women Writers

We’ve heard it before: Women earn less money and benefits than their male counterparts. But the question is why? I believe the answer lies in the fact that women tend to shy away from negotiation. Women who do ask for more money or benefits are often viewed by society as overly aggressive or pushy. Overwhelmingly, romance writers are women who will find these essential skills helpful when negotiating their own publishing contracts.

3Contract

As an attorney, I’ve had the benefit of hours of negotiation training and have negotiated scores of civil settlements. Negotiation is a craft that can be studied and learned and will help with every facet of a writer’s career. I plan to blog about specific author contract clauses in the future, but I’m starting out with the very important art of negotiation.  Here are some tips:

 Don’t be afraid to ask.

I know as well as the next writer how hard it is to get “The Call.” I received many rejections before I sold my first book. We are all hesitant to ask for anything after waiting so long, and we feel we should be eternally grateful. But asking does not mean we aren’t grateful. Asking means we are taking our writing careers seriously and that we are intelligent businesswomen who intend to be successful in this profession.

Be Prepared.

Research is key.As members of RWA and our local chapters, we have excellent resources. The RWA website as well as the monthly Romance Writer’s Report magazine have a wealth of information on contract clauses. Conferences frequently offer workshops on author contracts and what’s standard in the industry. And don’t forget to ask fellow authors what is in their contracts and what clauses in particular they negotiated. Gathering as much information as possible is the best strategy.

Create a script in advance.

Before you call or meet with the editor or agent, you should have a mental outline of what you want. Items in that outline should include: your wish list; your reality list; and a deal breaker item, if there is one.

Develop options.

Understand in advance that you will not get everything you ask for. I’m not just talking about money here—there’s so much more to a contract. There are publishers that do not negotiate royalties or advances. This does not mean, however, that you cannot negotiate other sections of the contract to your benefit. What about the author’s grant of rights, for example, foreign rights? Publisher option clauses? Rights of reversion clauses? Basket accounting? Author’s rights in case of publisher bankruptcy? Or even more basic, what about more free and discounted author copies?

Know your negotiation power.

This is critical. If you are unpublished and you get an offer from an agent or editor, you have significantly much less negotiation power than a NY Times Bestseller. This doesn’t mean you have no power, but you must keep what you do have in perspective. An unpublished author cannot insist on a six figure deal and a cross-country book tour. That is demanding and unprofessional.

Stay Unemotional.

I know. This is your baby. You have spent countless hours polishing the first page, let alone the first chapter. But remember that publishing is a business, and the agent or editor is interested in selling your book and making money. The most effective negotiators are the unemotional ones.

Take a time out.

Don’t agree to anything immediately. Wait at least a day, preferably more, to think things through and clear your mind. Talk to other writers. Your spouse. Your critique partner. Your attorney, if necessary. That means if you get “The Call” and are jumping up and down with joy, do not agree to the representation or sign on the dotted line without waiting the requisite time period. After you calm down, you will be able to look at the fine print with different eyes.

Be professional.

Ask, don’t demand. Start out by saying, “I have a few concerns with the language of the contract…”

You’d be surprised what you can accomplish. Even if you do not get everything you hope for, you let industry professionals know that you are serious about your career and your books and that you are an author who is a worthwhile investment.

So have you ever negotiated any type of contract? What’s your best tip? I’d love hear your views, so please share!

And stay tuned  for my next blog on contract clauses.

Tina Gabrielle

In The Barrister's Bed    InTheBarristersChambers   Original Artwork A Perfect Scandal   LADYOFSCANDAL Cover

 You can find me at:

 www.tinagabrielle.com

 http://twitter.com/tinagabrielle

 https://www.facebook.com/TinaGabrielle

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