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

http://twitter.com/tinagabrielle

https://www.facebook.com/TinaGabrielle

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Noncompete Clauses in Publishing Contracts – What precisely is an author agreeing to?

The very first time I read a noncompete clause in a friend’s publishing contract, I had to reread it—not just twice like we all should—but a few times. What exactly do publishers want and what are authors agreeing to? How important is this clause to authors anyway?

tug of war

Noncompete clauses are also called competing works clauses or conflicting publication clauses. In simple terms, noncompete clauses restrict the right of an author to write or publish another book that is similar to and would unfairly compete with the sold book. Almost all publishing contracts include a version of this clause, and publishers are well within their rights to have the exclusive right to the book the author has entered into a contract with them. But the clause must be fair and authors should check that the clause is not overly restrictive.

For example, if an author writes romantic suspense and sells it to Publisher X and there is a noncompete clause in the contract for eighteen months prior to or after publication of the work, the author may not publish another romantic suspense to Publisher Y until the eighteen months are over. With the increasing number of hybrid authors who are both traditionally publishing and self-publishing, the noncompete clause can be overly restrictive and tie up an author for months or even years.

Some publishers are progressive and they realize that a prolific author who wishes to traditionally publish and self-publish can only help sales, not hurt them, and they are more lenient with the noncompete clauses. Others may not be as progressive. Publishers are definitely entitled to have the exclusive right to the author’s book, but at the same time, the noncompete clauses shouldn’t be overly binding.

So how can an author negotiate overly binding noncompete clause? Here are some concrete examples.

Limit the definition of “compete”

Try to replace the language that says “might” interfere with sales and use “will” interfere with sales instead. The publisher is overreaching here. The publisher’s rights are still protected with the word “will” rather than “might.”

Limit the definition of “competing work”

Try to limit the definition of “competing work” in your contract. The more specific the language of “competing work,” the better for the author. For example, you can attempt to limit the clause to “a work with similar characters or title as the contracted work” or “a series military romance with Navy Seals.” This allows the author to publish or self-publish a long contemporary romance with firefighters and not violate the clause. The different genre wouldn’t be competing with the military romance novel and would free the author to make more income in an increasingly crowded marketplace.

Limit the publisher’s time in a noncompete clause

Try to limit the publisher’s time in a noncompete clause. A contract shouldn’t give a publisher an unlimited time period. That’s overreaching and not necessary to protect the publisher. Examples of unreasonable time periods are: “as long as the work remains in print or electronically,” and “for the term of the copyright of the work.” Yikes! These sound bad, don’t they?

In a perfect world, the author and publisher will work together to have a fair noncompete clause for today’s constantly changing marketplace.

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

Tina Gabrielle

A SPY UNMASKED – Coming November 10, 2014 from Entangled!

You can find me at:

 www.tinagabrielle.com

 http://twitter.com/tinagabrielle

 https://www.facebook.com/TinaGabrielle

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

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