by Denise Gibbon, Publishing Consultant and Attorney at Law, Above the Dotted Line
Though most authors would laugh at the thought, a story and a publishing contract have a lot in common. Just as a story includes fictional or true-life characters, setting, plot and conflict, a contract has all the same elements. In the legal world, we disguise them, calling them parties, territories and terms and grants, among other things. A contract’s vocabulary, known as legalese, isn’t as romantic or adventuresome as most stories we like to read. Nevertheless, your publishing contract can tell a story that leads to new beginnings for your work long after its initial publication or one where that same work languishes in a publisher’s vault.
It’s all about “the grant of rights.”
It is in the grant of rights that the contract’s leading characters—author and publisher—agree what, when, where and for how long the publisher will be entitled to reproduce, market and sell the author’s work. This is not to say that you needn’t be concerned with the additional fine print—there should be additional language that further defines the rights granted. However, the original grant is the opening chapter for the story that follows.
If I was to create what I regard as a generic universal grant of rights, it might look like this: “Author grants and assigns to publisher during the full term of copyright and throughout the Territory the exclusive right to reproduce, publish, distribute and sell the Work in all languages and in any media now known or hereafter devised.”
Your grant might be the first provision or in the middle of the document depending on how the contract is organized. Some publishers, using a version of the example above, lay claim to the authors’ publishing rights with just a few words. Others spell out the grant of rights over a few labyrinthian paragraphs of legalese that either cure insomnia or leave the author temporarily cross-eyed and intellectually dazed.
Whether the grant is the length of a Tweet or a novella, it’s more likely than not that it amounts to a universal and perpetual grant of all rights to the publisher. The example above does nothing less. As eager as you might be to sign the contract, don’t—not yet. The reason why you shouldn’t rush to the dotted line are in the answers to three other key questions—namely, what, where and when?
First, what is granted to the publisher? The exclusive right to publish and sell the work not just in English but in all languages. Also, the publisher wants the right to publish your work not only in those languages but also “in any media now known or hereafter devised.” This phrase, and many like it, has become a mantra for publishers in the twenty-first century. Media corresponds to any manner of publishing textual or pictorial content—print or digital, physical or downloadable, electronic or mechanical. It might also involve “formats” or “platforms.” Whatever form of communication that exists or has yet to exist fits the phrase.
Thus, if your publisher wants to publish your book in Italian as an enhanced e-book with music and video footage, it can. And then there are audio books—they can do that as a physical or downloadable edition and again, with other technical enhancements the publisher wants to include. And if a new technology comes into existence in ten years that none of us now conceives of, and its useful for publishing “books” in still other formats, the publisher can also publish your work in one or more of those as-yet-unknown technologies as well.
Second, where can the publisher publish your work? In our sample provision, I’ve thrown a curve ball by referring to the “Territory.” If you run across this term, there should be a definition somewhere in the contract—perhaps it follows the word or paragraph or is in an attached glossary. Here, because the publisher has requested to publish in all languages, we know that for this particular grant of rights provision, territory will be defined as the universe or the world.
Third, we consider “when” or for how long the grant applies to the rights granted. Again, some publishers will use the word “term” to define the duration of the contract. Here, our example states what most state, “for the full term of copyright.” Few writers realize that their work’s copyright term lasts for the remainder of the author’s life plus seventy years.
It is this “when” part of the grant of rights that puts the what and where in perspective. What guarantee does any writer have that the same publisher will keep their work on the bookshelves—physical or virtual—for the next one hundred years? None.
Still, the standard publishing contract continues to promote a fantasy no rational entrepreneur would entertain in any other business—that even after one party is no longer fulfilling their contract obligations (i.e., promoting and selling the author’s work around the world in at least one form of media), the contract is still enforceable.
With few exceptions, publishers do little to promote a title once it has moved from the front-list, a spot it occupies for the first six months following its release, to the proverbial backlist. The publisher might breathe new life into a work with an e-book or an audio edition. But once the publisher has exploited the work to the extent that it finds financially prudent, it’s more likely to hoard additional rights than exploit them as well.
So what is an author to do to extend the life of his work and earn additional profits?
Every well-designed highway has exits and so should your publishing contract. Once you know if your publisher is making a claim for all publishing rights throughout the world for the full term of copyright, consider what, when and where you might circumscribe what is otherwise a universal and perpetual grant of rights. It’s now your job to see if you can insert language in the contract that limits the time following the work’s initial publication within which the publisher can exploit particular rights. If the publisher does not exploit the subject right, it reverts to you.
Begin by identifying the print and non-print rights that you want or that the publisher is less likely to exploit. What physical and digital formats does the publisher usually exploit in your genre, for example? The publisher might be more willing to let those rights revert to you within a few years. Perhaps they have never published audio books in your work’s genre. If so, can you persuade them to delete that right from the contract before you sign?
Does your publisher really publish in all languages? Doubtful. Or in all parts of the world? Again, unlikely. Consider whether the subject of your work might appeal to English readers in certain parts of the world and/or foreign readers in other languages. Again, how often does the publisher license foreign language rights for works in your genre? If it seldom publishes in Spanish, and you believe your book would appeal to many in South America, you have a good reason to ask that the rights to publish in South America in Spanish revert to you.
Unless you understand the elements that add up to a grant of rights, you might unwittingly surrender future opportunities to profit from your work. Change the plot for your publishing future. Talk to your publisher about a happier ending—one where rights they don’t exploit revert to you long before the copyright has expired.
Denise Gibbon is a literary attorney and publishing consultant as well as a former reporter. Articles for authors about publishing and a free report about copyrights are available on her website at www.abovethedottedline.com. Also see her interview in the Huff Post, Do I Really Need a Literary Attorney? by Arielle Ford. For more information, you can reach Denise at firstname.lastname@example.org.