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Rights Grabs and Copyrights by David P. Vandagriff, AKA Passive Guy

Let’s discuss the rights authors own under their copyrights to their books.
Although we could talk a long time about what copyright is, for the purpose of this post, we’ll call it the exclusive legal right of the author of a literary work to reproduce, publish and sell a book for the period during which the copyright is in force. Copyright also includes the right of the author to permit others to do the same thing.
Copyright is a collection of different rights. Some of these are called derivative works. Here’s a definition from the United States Copyright Office:
A derivative work is a work based on or derived from one or more already exist­ing works. Common derivative works include translations, musical arrange­ments, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the edito­rial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.
To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and add new original copyrightable authorship to that work. The derivative work right is often referred to as the adaptation right. The fol­lowing are examples of the many different types of derivative works:
   A motion picture based on a play or novel
   A translation of an novel written in English into another language
   A revision of a previously published book
   A sculpture based on a drawing
   A drawing based on a photograph
   A lithograph based on a painting
   A drama about John Doe based on the letters and journal entries of John Doe
   A musical arrangement of a preexisting musical work
   A new version of an existing computer program
   An adaptation of a dramatic work
   A revision of a website
Note that a derivative work includes uses for the work that are developed in the future. Authors who wrote novels long before ebooks were invented still have copyright protection for their work in the form of ebooks.
So, what is a rights grab for the author of a book?
Here’s Passive Guy’s own definition: A rights grab happens when a publisher demands more rights than to print, publish and sell hardcovers, paperbacks and license ebooks.
Period.
Of course, many publishers ask the author to grant many more rights than those t
hree. Common additions are motion picture, television and dramatic rights.
Why does PG not like this?
Does Penguin make movies? Does HarperCollins create stage plays?
Those sorts of things are done by people whose principal business is something other than publishing. Publisher like these sorts of things because all they have to do is contact someone, usually a Hollywood agent, and ask the agent to sell performance rights. Quite often, the author even pays some or all of the agent’s fee through royalty deductions.
That’s a lot less work than editing, printing and promoting books.
An analogous set of rights are translation rights. The right to translate a book into German, French, etc., and sell those books world-wide. There are some exceptions, but quite often, the process is similar to performance rights. The publisher contacts a German publisher or agent and the German publisher does all the work.
Of course, the publisher takes a cut of all of these subsidiary rights, sometimes a very large cut. The author gets what’s left.
So, PG’s standard for what rights an author should grant to a publisher are those that the publisher has the in-house capability of exploiting without involving third-party agents, producers or publishers.
If a book sells well, it will attract people in the movie business and foreign publishers on its own, without the involvement of the US publisher and, if the author retains these rights, he/she keeps all the money.
How does the author know what to do with these non-book rights? Hire an attorney or agent to help. They will charge much less than a publisher will to handle those types of licenses. And the author will be in control of negotiations and the contract terms, not the publisher.
What does rights grab contract language look like? Here’s a short one from a real publishing contract (but not a contract that involves one of PG’s clients):
The Author hereby grants the Publisher the exclusive, worldwide rights to publish, display, reproduce, license, grant subsidiary rights, distribute, and sell the Work, in any and all forms currently, or in the future, known for publishing such material.
Here’s that same contract provision with key terms highlighted:
The Author hereby grants the Publisher the exclusive, worldwide rights to publish, display, reproduce, license, grant subsidiary rights, distribute, and sell the Work, in any and all forms currently, or in the future, known for publishing such material.
Often grants of right are significantly longer than this, but this gives you the idea of the kinds of things to look for.
Why does a publisher need worldwide rights if it only publishes in the US?
Why does a publisher need subsidiary rights if it’s never produced a movie or sold rights to a movie?
Why does a publisher need rights to some unspecified future use of the work when the publisher doesn’t even know what that might be?
If you’re looking for a compromise between a rights grab and PG’s absolutist position about hardcover, paperback and ebooks, here are some ideas:
1.      The publisher has the right to seek movie, TV, etc., deals for a period of time – three years, for example. If no deal is consummated during that time, those rights reverts to the author.
2.      The first $1 million derived from the sale or license of any subsidiary right is divided 50/50 between author and publisher and any revenues above that are paid to the author.

3.      The publisher has rights in any countries where it presently has offices and operations with the author retaining rights everywhere else. The countries should be listed.

This Post Has 43 Comments
  1. I’m a faithful follower on TPV, but it was great to see you in person. Thanks, as always, for the help you give writers. As for AuthorEarnings.com, I’ve blogged about that twice now, hoping to spread the good word.

  2. I was approached by a new publishing company who raved over my manuscript. We entered contract negotiations and I attempted to make my own revisions. This company was asking for the sun, moon, stars and universe. Their response to to my counter offer was just s you’d said, “this is our standard contract.” The hairs on the back of my neck stood on end. I hired a Literary Attorney. Best $310 I ever spent. Bottom line, she told me to run away-not walk!

  3. Great topic, it makes so much more sense to think about these things before we’re staring a contract in the face, being pressure to just sign it, you’ll feel better. 🙂

    I’m getting a lot of encouragement to keep on going from the AuthorEarnings reports. It’s not nearly as hopeless as an indie writer as we’ve been lead to believe. No guarantees, but no need to give up or sign that rotten contract.

    More data and information is always good.

    1. I couldn’t agree more, Kari.

      I can’t go into detail because of client confidentiality obligations, but I know a lot of indie authors who are making very good money these days. I can’t think of a single one who has been traditionally-published that isn’t making more money as an indie.

  4. If some of you don’t know me, I blog at The Passive Voice – thepassivevoice.com – and there are lots of discussions about business and legal issues of interest to authors – indie and traditionally-published – over here.

  5. I guess with indie publishing that doesn’t become an issue until you have a good deal of success and someone else wants to cash in on it. The ebook sales are brisk, unexpectedly you receive a contact from a publisher who wants to be your sugar-daddy as long as you sign their boilerplate, and then,… next step: call you? Someone like you? Have a plan? Look for an agent? First I gotta sell my stories, but if they sell, and if I get the call (letter, whatever), what is step two, or did I already miss step two?

    1. Generally speaking, if you’ve been approached by someone who wants to license some of your rights, you’re past the point where you need an agent. The agent’s main value-add is to locate such a person for you.

      My usual rule is that a boilerplate contract someone shoves under your nose probably needs some changes before it is fair. It’s like an opening bid.

    2. Generally speaking, you’re looking for an attorney who understands both copyrights and contract negotiation, someone who represents authors and/or publishers.

      Some people think attorneys have to choose sides and only represent either authors or publishers. It’s really two sides of the same coin. A lawyer who does a good job representing publishers is in a good position to understand the issues an author might have with a publishing contract (from a non-client publisher).

      I’m not aware of a good association of book lawyers or something similar.

    3. You also have to look at the contracts you sign with your service providers. The old “vanity presses” (first and foremost Author Solutions, Inc.) are still looking for unsuspecting authors to fleece.

      If you suspect you’ve been a victim of a rights grab, or some other problem with a service provider or traditional publisher, the National Writers Union (www.nwu.org) in the US has trained volunteer contract advisors for its members, and has won a multitude of grievances for writers of all types.

    1. You’re welcome, Ali.

      The key is not giving away a bunch of rights that a publisher isn’t in a position to exploit directly. A lot of authors don’t realize this is a mistake (or even that they’re giving away those rights) until after they sign the contract.

  6. There is litigation titled HarperCollins vs. Open Road in which the ebook rights to books by Jean Craighead George, author of “Julie of the Wolves,” are being determined. HC, which has a contract that predates ebooks by many years, is suing Open Road, to which George licensed her ebook rights.

  7. Great little piece on paying attention to what you are selling and not selling. I like the position that we shouldn’t be granting rights to the publishers that they aren’t in business to accomplish.

    Assuming that you keep the derivative rights, how much effort are you going to put into trying to monetize them?

    1. Your effort can range from a little to a lot.

      A little effort would be to sell lots of copies of your books and wait to hear from someone who wants to license foreign rights or movie rights, etc.

      A lot of effort would involve hiring an agent solely to sell foreign rights or retain a Hollywood agent to assist you.

  8. PG: I recall reading in the past about a landmark case involving…I think it was about an actress and how a studio tried to pull rights away from her on technology that didn’t even exist at the time her contract was signed. And it seems this is a major problem with legacy publishers of late. They are forcing authors (who don’t know any better) to sign away ebook rights on books that were published before ebooks even existed. Can you recall the landmark case I mentioned above and what are your thoughts on this issue as it relates to publishing?

    1. I think you may be referring to Ginger Rogers, who wrote and sang some songs in the Disney movie, Lady and the Tramp.

      There were no VCR’s at the time the movie was made and Disney went ahead and used her songs in a video that it sold. Ginger claimed she had never given Disney video rights. She won.

    2. New rights can come into existence – ebooks, for example, in the 21st century. The author as copyright holder owns those rights unless he/she has transferred them away. Some publishers have this problems with ebooks.

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