The Business Side of Writing: What Rights Should You Sell?

Apologies for being a day late this month. I was in Boulder, Colorado yesterday and while it would be very cool to claim that I narrowly escaped the floods, I was in fact driving cross country to rescue the family pet from the kennel, where he’d gotten sick, and thus left town long before the rain started. (The dog is fine, by the way.) This month I’m going to address the issue of what rights you sell when you sign a publishing contract. The writers I know have signed a diverse set of publishing agreements, so this issue isn’t as simple as saying, “Sell only these rights.” What’s key is that you make sure you get paid for the rights you sell. Small presses, and unfortunately LDS presses included, are known for getting grabby with rights, appropriating far more of them than they pay for, and you can avoid this provided you know what rights you own and how they can be used. So let’s explore what rights you have and are able to sell.

Rather than make an exhaustive list, I’m going to break down the ways in which a copyright can be divided up and sold.

Language. Publishing contracts stipulate what language the publisher can print the book in, and here you want to be pretty strict. Foreign language editions are both 1) a specialized market and 2) potentially very lucrative. Unless your publisher regularly employs translators and successfully markets foreign language editions, you don’t want them to have your foreign language rights. These rights can be so lucrative that it is not unusual for an author to make half their income from the foreign translations of their work. I make about a third of my income this way, some months, from one German edition of one of my novels. Note that this is a language restriction and not a geographical one. Which leads me to the next way the rights can be limited.

Geographical Region. This is a distribution issue. A publisher with these rights can print books that will be stocked in North American bookstores and North American online venues. This is, incidentally, part of the reason why Amazon has so many regional sites, i.e. Amazon.ca, Amazon.co.uk, Amazon.de, etc. They are preserving the publishing regions so that a publisher can sell via Amazon without needing to purchase worldwide rights from their authors. While people outside the US can buy from Amazon.com, and while specialty bookstores worldwide might have your book shipped to their location, situations like the are both too small of a market share and too impossible to police to be a violation of the contract. Your publisher merely promises, with their limited region rights, to distribute to the regional vendors.

Do not underestimate the value of your foreign region rights. There are a lot of English speakers in the world, and it often will make sense for a British publisher to handle your UK edition, an Australian publisher your Australian one, etc. They may change your covers and titles to better fit the market, and in some cases will edit the language in line with the local dialect. All of these factors can improve sales in the region.

Format. This one is huge. For anyone who’s been living in a cave for the past four years, please note: Ebooks are where the money is at these days, both because so many people read them and because the unit cost of production is zero. This is the format to guard jealously and think over carefully. Print rights are often best handled by publishers. Even top indie authors often use traditional publishers to distribute their print editions. Print editions can be divided into mass market paperback, trade paperback, and hardcover. A lot of small presses make their money by selling a good number of hardcovers (which move in much smaller volume than paperback), then selling the paperback rights to another publisher. Writers who’ve had breakout hits from the LDS market often have their paperbacks printed by a national market publisher.

Publishers may try to grab other rights too, though, like audiobooks and film rights. I would argue that audiobooks are a maybe if the publisher does them regularly, and film rights should almost never be on the table. Publishers aren’t filmmakers. They want those rights because on the rare occasion that they sell, they can be very lucrative. Publisher arguments that their publication of the book led to the movie deal and therefore they deserve some of that money are, in my opinion, ridiculous. If you hadn’t written the book, the film rights wouldn’t exist, period. These creative properties belong to the creator.

Another area of controversy is formats that haven’t been invented or risen to prominence yet. The legal issues here are complex, so I’m going to over-simplify. Speaking generally, it is unethical to bind people with contracts for properties that don’t exist yet. A contract shouldn’t be for “all formats whether existing or in future.” Nobody can see the future, so no one can really know the value of future formats, thus it’s impossible to ensure fair compensation. Having said that, publishers will try to do this and will succeed in a good number of cases because writers may not be able to afford the legal fees to defend their position. My point here? Make sure it’s spelled out in the contract. Existing formats only, and enumerate the formats.

Also note that derivative rights fall in this category. Derivative rights cover derivative works, which include films and plays, but also include toys based on the characters, jewelry branded to go with the books, and other merchandise. If your friend wants to print t-shirts with your characters’ pictures on them, they are creating a derivative work. When I made jewelry that tied in with Stephanie Burgis’s Unladylike Adventures of Kat Stephenson books, I bought the right to do that. Because of the size and scope of my business, I paid in kind, with pieces of jewelry to Stephanie, and my rights were non-exclusive – which I talk more about below.

Timeframe. Contracts also have time limits on them. The longest that a contract can be for is the length of the copyright. Because once the copyright expires, you are both dead, and not the owner of the work anymore. It becomes part of the public domain. Anyone can publish it. This is why there are dozens of editions of Jane Austen and Shakespeare. You could print up your own if you wanted to, and sell them. There are two important contract limitations here that you should demand.

1. A Reversion Clause. This cuts short the contract once the book has been out of print for a certain period of time. Make sure to DEFINE “out of print”. In the days of print on demand and ebooks, it’s important that one of the ways to trigger the reversion clause is by a drop in sales volume below a certain point. My publisher did only one printing of my book with them, and once five years elapsed since that printing, I got my rights back. This means I can do my own ebook and paperback edition. Don’t let your publisher have your book forever. Make sure you can get it back if they aren’t making you any money with it.

2. Short pieces, short time periods. In the realm of short story and poetry publishing in magazines and anthologies, it’s typical for the rights to only be for a year. After the year, the author can do their own ebook edition, put it up on their website, etc. If you sell short pieces, make sure to be aware of this.

Exclusivity. While it might sound strange to sell non-exclusive rights, these sorts of deals tend to crop up with derivative works. I.e. three toy companies that specialize in different age groups might all have non-exclusive rights to make merchandise. A few small boutique presses might have non-exclusive rights to do limited edition versions of a book, and one might do color printed pages, another leatherbound tomes, etc. It’s important to remember that this is an option for when you don’t feel you’re being paid enough. Your publisher really wants audiobook rights and insists they’ll do the best audiobook ever, but can’t afford a good advance? Non-exclusive rights might be a viable option. That way they can do their version, and if it’s the best ever it is the one that will sell, but you can also do your own version with the actor of your choice.

Which rights should you sell? Whatever the publisher can a) pay for and b) make good use of. Contract negotiation is like any other sales negotiation. The publisher will want more for less and you will want to part with less for more. There is no one right contract. It depends on the parties involved and the nature of the book. I have seen publishers buy all rights and pay through the nose for them. I have seen authors sell very limited rights, such as authors who sell print rights only. There is no right answer here, only the right answer given your situation. An author who came to me with a contract for print and ebook rights to a trilogy for $100,000.00 had a very bad deal in her hands. Because she made $50,000.00 a month from her ebook sales alone. If I were made that offer, it’d be a good deal, because I don’t make that kind of money. So you have to consider all factors when negotiating this portion of your contract. There are, in my opinion, some wrong answers, though. No publisher should ever be allowed to buy:

The Copyright. They can do that. Then they have everything and you have nothing. LDS houses have been known to try this. Do. Not. Let. Them. This is the only ironclad way they can get all future formats. Always keep your copyright.

Your Name. Though there are exceptions here. Often authors use a pen name that goes with a series and might be amenable to the publisher hiring ghostwriters to enable books to come out faster than one writer can write. In general though, you don’t give a publisher your name. Some romance publishers have a bad reputation for this. They buy your name, so if you don’t like working with them, you can leave, but you need to take on a new name to publish under. Your old name will then be given to someone else to continue writing “your” books. That means you start over from scratch with no platform to sell your next works.

Your Characters/Setting. The intangible assets you create when you write are real assets. Someone could, theoretically, buy Harry Potter. I once heard, anecdotally, that Tony Hillerman lost the rights to his main character for a period of time, due to a badly drafted deal. Unless you aim to set up a book packaging deal, you don’t want the publisher to own your world, characters, magic system, etc. Those are yours, and they’re what will sustain your career in the long term.

Okay, I’ve said my piece. Now let’s hear your thoughts! As always I’ll be reading the comments below.