Book Contracts from Contracts 101: The Grant of Rights Clause by Jane Friedman (Excerpt)
As with magazines, the digitization of print has seen book contracts evolve, with the addition of terms and clauses you wouldn’t have seen fifteen or twenty years ago. When it comes to the grant of rights clause, you can generally find three basic models.
Life of copyright contracts. This describes your typical traditional print book publishing contract, which potentially remains in effect for the Work’s copyright term (life of the author, plus 70 years, in the United States), until specific conditions are met that revert rights to the author.
Fixed term contracts. These contracts have a set time limit, e.g., five years, after which all rights revert to the author.
Work-for-hire contracts. As with magazine contracts, with work-for-hire agreements, you are often giving up all rights to the work, including copyright. None of these contracts is necessarily more favorable than the other; much depends on the work being contracted, the compensation, and the author’s goals.
Life-of-copyright contracts should be expected from any commercial, New York publisher. Fixed-term contracts are used more often at e-book or digital-only publishers. Work-for-hire is common with publisher-developed series, book packagers, and ghostwriting projects.
Life-of-copyright contracts. While it sounds ominous, “life of copyright” contracts are not expected to last until the copyright expires. Rather, the contract typically remains in effect for as long as sales occur. The rights reversion clause—separate from grant of rights—details specific conditions under which the rights can revert to the author, and may even state the sales figure that must be sustained for the publisher to keep the rights to sell and distribute the Work.
Here is a generic example of what a life-of-copyright grant of rights looks like:
The Author hereby assigns to the Publisher the exclusive right to publish, reproduce and distribute the Work and derivatives thereof in all languages in any and all forms/media whether now known or hereafter invented and to exercise and grant to third parties any of said rights to the Work, throughout the world, for the full term of copyright available to the Work.
What this means is the Author gives only this Publisher the right to publish and distribute the book around the world, in any language, in any conceivable format that’s now in existence or that might be invented. It also gives the Publisher the ability to sell or assign these rights to anyone else. This agreement has the potential to remain in effect for as long as the copyright lasts (until the work falls into the public domain).
There are several areas here that are negotiable, depending on the publisher; this is where an agent’s experience is invaluable, since they likely know what a typical deal looks like from each publishing house or imprint, and where they can push the hardest.
• “in any and all forms/media whether now known or hereafter invented” — The publisher is asking for rights to all formats and mediums, including hardcover, paperback, mass-market paperback, e-books, audio, video, apps, etc. In a good contract, another clause will outline specifics on how the author is paid for each medium. An agent will typically reserve some of these rights and sell them separately.
• “in all languages” — This example gives the publisher not just World English rights, but rights to sell the Work in translation. The subrights section of the contract will detail how much the author earns on translations that the publisher sells.
• “throughout the world” — Some book contracts are limited to North American rights or World English rights. This example covers every country. Before granting such rights, you should find out if the publisher has a track record of selling outside North America. Note: Foreign rights are different than translation rights. Foreign rights involve licensing the right to sell the original (English-language) edition in other countries/territories; translation rights involve licensing the right to translate, distribute, and sell the translated work in a specific country or territory.
• “for the full term of copyright” — This phrase makes this a life-of-copyright contract. It does not mean the author gives up his copyright. But the author does grant the publisher a license that could potentially extend for the life of copyright.
Any good agent would tell you that the clause example above is not very favorable to the author, but if the advance and royalties were right, it could be acceptable. Most agents would negotiate for an amended clause that limits the publisher’s rights grab, or at the very least puts a limit on how long the publisher can exploit certain rights—meaning the author can get certain rights back within a short timeframe if the publisher has not sold or made use of them.
And that brings up another important issue: Make sure that the grant of rights corresponds to the publisher’s actual ability to exploit those rights. Small press contracts are of particular concern—where the publisher claims a menu of rights there’s no way it can exploit. Before granting translation rights, for instance, find out whether the publisher has ever sold any translation rights.
Finally, for any life-of-copyright contract, be sure to closely review termination or rights reversion clauses. You need to ask for specific sales minimums that automatically trigger rights reversion, so the publisher can’t sit on your book indefinitely by arguing that an e-book listed on its website constitutes “in print,” even if the ebook isn’t selling a single copy. In future installments of this series, we will get into the details of such reversion clauses.
Fixed-term contracts. The grant-of-rights clause will look much the same for a fixed-term as it does for a life-of-copyright contract. However, instead of an indeterminate end date, the publisher’s rights to the work expire at a specific time—unless it automatically renews. If it’s not clear how to terminate the contract in the case of auto-renewal, add that language to the contract.
Fixed-term has been a go-to model for e-book publishers, since e-books don’t really go “out of print” (which often initiates a rights reversion in a life-of-copyright contract) and also because such publishers are typically newer and have to offer more flexibility to be attractive partners. Given how fast the e-book landscape is evolving, few authors are willing to tie up their rights for very long (more than one to three years), especially if their publisher isn’t keeping up with the pace of change.
A note about both life-of-copyright and fixed-term contracts: Victoria Strauss of Writer Beware has advised us that temporary transfer of copyright is also a problem in these contracts. Sometimes small presses take possession of copyright temporarily, and then give it back when the contract ends or the book goes out of print. This can be a nightmare for authors if the publisher goes belly up without returning rights.
Work-for-hire contracts. Authors who agree to work-for-hire are relinquishing all rights to the work. In comparison to the other contracts, there’s not much to negotiate here except the compensation, which is typically a flat fee and possibly includes royalties.
Other resources for contracts:
Kirsch’s Guide to the Book Contract by Jonathan Kirsch. Yes, it’s dated, but many contract basics have not changed.
• Resources for Authors from SFWA & Writer Beware website. An archive of helpful information related to the business of publishing.
• The Authors Guild [authorsguild.net] offers legal services to its members.
You can get the full document on contracts by visiting: https://janefriedman.com and signing up for her newsletter.