Know Your Rights
By Barbara Doyen

Commissioned by Writer's Digest Books for inclusion in their directory, Guide to Literary Agents for 1993, 1994, and 1998.

Many authors are so glad to get a contract offer that they sign over their rights without understanding what they are doing. Like marriage, your relationship with your publisher should be regarded as permanent; unlike marriage, it is hard, if not impossible, to get a “divorce” from your publisher once you realize you've made a poor deal.

Both parties bring something to the relationship. The author gives the publisher the exclusive rights to print and sell his or her book, and the publisher gives the author an advance and promises to pay him more in the form of royalties once the upfront cash has been earned back.

Defining your rights

Reprint rights, book club rights and revised editions almost always go with the deal. A writer who insists on retaining these rights may jeopardize the sale as the publisher may count on income from these sources in calculating the potential profitability of a book.

Reprint rights

Reprint rights is a broad term that can mean hardcover, trade paperback and/or mass market paperback rights. If sales take off, the latter can be quite lucrative. In theory, a book coming out in any one of these formats can be reprinted into any other—but in reality, it would be unusual for a paperback book to be reprinted as a hardcover. We've had clients receive a simultaneous hard/soft deal, where the book is published in both hardcover and trade paperback from the first printing. A common procedure is printing first in hardcover or trade paperback and then in mass-market paperback. Many books start out as mass-market paperbacks, never to be published in the other formats.

Your agent will consider how appealing your book might be to each market, evaluating the way to get the best deal. If a book is of interest to publishers in both hard and soft cover, it will usually come out first in hardcover with the paperback edition (particularly mass market paperbacks) coming out months or years later so that hardcover sales are maximized before the cheaper form is available. This works well when the hardcover publisher also does the paperback, but when paperback rights are licensed to another publisher, the hardcover house will want a split of the author's royalties.

Book club rights

Book club rights sales can generate a tidy sum. Your publisher can offer your book to the club “as is” at a discount or it can license a book club “reprint” edition. The publisher should seek out appropriate book club markets as soon as possible because they increase the public's awareness of your book and stimulate retail sales.

Revised edition rights

Somewhere between 10 to 20 percent of the books published in the U.S. are revised or updated editions. If the author makes a few changes to keep the text current, the book is republished as an “update.” If at least 30 percent of the text is new material and the book has been republished with a new cover, a new ISBN and new promotion, the book is called a “revised edition.” Each update or revision should bring the author another advance.

Updates and revisions extend the life of the book and increase the author's—and the publisher's—profits. The person responsible for the text changes should be the author, but if the publisher requests a revision and the author refuses or is unable to do it, most contracts give the publisher the right to have another writer do the revision, charging the costs of preparing that revision against the original author's earnings.

The publisher may negotiate to retain and exercise excerpt rights in the US and abroad, serial rights, one-time rights and syndication rights. Your agent will most likely reserve these rights for you if you are already well published in major periodicals and have good contacts for your work.

If the publisher retains these rights, it's to your benefit not to be too stingy with the royalty splits (as long as the publisher will indeed aggressively pursue these sales) because the publisher must have a fair profit as an incentive. The splits are negotiable—but the author shouldn't give the publisher more than 50 percent.

If you are offering your work to these markets as a primary sale (that is, not as subsidiary rights to a book contract), be certain you've reserved control of your other rights for possible future use. Why? Your article may later be developed into a film, book or play—as in the case of Budd Schulberg. Based on his newspaper article series, he wrote a screenplay, On the Waterfront that went on to win eight Oscars for best film in 1954. Then he wrote Waterfront, the novel, and On the Waterfront, the theatrical play, with Stanley Silverman which debuted at the Cleveland Playhouse in 1988.

Excerpt rights

Excerpt (or serial) rights (allowing passages selected from your book, or sometimes the entire text, to be printed in magazines, newspapers or newsletters) should be pursued vigorously because of the tremendous publicity this generates for the book.

At one time, sales of these rights would bring the author more money than from book publication. Serial sales can still be quite lucrative, especially if they involve a celebrity. But even if little or no money is forthcoming, more savvy clients mine their nonfiction books heavily for excerpts, getting in print as extensively as possible—because this sells lots of books.

You should try to suggest ideas for excerpts to the rights director at your publishing house, or to your agent if she's handling these sales. Be specific. If you think your chapter three checklist could be lifted and made into an article titled, “How Do I Know If I'm Happy in Love?” which looks just right for Redbook, suggest it.

Serial rights

These excerpts can be marketed to American periodicals, or you can offer them abroad, in which case you'd be selling the foreign serial rights. The excerpt can come out either before publication (first serial rights) or after publication (second serial rights.)

First North American serial rights are purchased by periodicals, which are distributed in both the United States and Canada for simultaneous first appearances of the excerpt in each country. Serial rights can be sold on a nonexclusive basis, that is, excerpts from different parts of the book to different buyers. First Serial Rights sales could involve exclusive rights to the entire book or just to a part of it.

Obviously, you can sell the right to be the first to publish the excerpt only once; this should go to the buyer most likely to pay the highest dollar and give you the best exposure. After that, it could be sold as second serial rights, one-time rights or perhaps as simultaneous rights, probably to periodicals without overlapping circulation; these rights can also bring in good money.

Syndication rights

Newspapers regularly buy and print material they've received from syndicates, which are agencies specializing in these sales. The syndicate is granted exclusive rights to sell your pieces all over the world in first publication and in reprint. Syndicates simultaneously offer their material to many buyers, usually guaranteeing the buyer exclusivity in a particular geographic area.

Books that are to be excerpted in several continuing installments or as columns might be picked up by a syndicate. The value of syndication rights should be more than what the author would get for First Serial sales to one publication. The syndicate takes 50 percent of the earnings. If the author has granted the publisher the right to license syndication, the remaining 50 percent would be split between the author and the publisher as agreed in the publishing contract. If the agent has retained these rights, she can approach a syndicate on the author's behalf. Another option for the author is to self-syndicate.

When selling excerpt rights, it's important to understand what the benefits are to each party in these agreements. We've already mentioned that the author gets good money and, even more important, publicity for his book.

The publication that purchases First Serial Rights gets to “scoop” your book to the world, thus capitalizing on any prepublication publicity your book has generated. The excerpt will require less editing, and it may cost the publication less to buy these rights than it would to commission a freelance writer to do a major piece.

Even though they've lost some of the “scoop” value, Second Serial Rights are attractive because they're cheaper than First Serial Rights. The publication still benefits from the book's publicity and promotion, and the manuscript has already been edited and proofread—a savings in editors' time and energy.

To maximize the effect of the publicity for your book, try to time the publication of excerpts to coincide with your book's availability in bookstores. Keep in mind that the First Serial appearance must occur prior to the book's publication date.

Foreign rights

Foreign sales and translations don't always go with the sale of the book. Foreign sales can involve selling the American edition “as is” (in Canada, for example) or it can mean selling the rights to publish another edition in English or translations into other languages. Here again, sales are handled by the publisher or agent, depending on whether these rights were part of the publisher's contract. It is desirable to go with the publisher if they have staff whose only job is to handle these rights, or if they have an international foreign rights department. When the agent has reserved these rights for the author and arranges the sale, the author then gets all of the money instead of giving the publisher a split.

The license for the publication of foreign editions is usually granted for a particular period of time, usually a number of years. When the license expires, it can be renewed by your publisher or agent in your behalf.

Film rights

Publishers feel entitled to a share of your film rights because they believe their publication of your book greatly enhances the chances of the sale; this despite the fact that publisher will be benefiting directly from increased book sales once the movie is out.

Publishers also buy novelization rights to screenplays, which can then go on to become bestsellers. Either way, book into movie or movie into book, the tie-in enhances the sales in each media.

With the decline of the networks' power and the proliferation of cable companies and independent producers, more and more original movies are being made expressly for TV. This requires a supply of material—good news to the writer. But you should realize that film sales from books are still a long shot.

Theatrical films (to be released in movie theaters) are the longest shot of all, since over 100 movies are made yearly, and many of these come from original screenplays, not derived from book material. Of those books optioned, dismally few get produced as movies, even among those on the best-seller lists.

The very best time to market film rights is after the book is sold but prior to its publication—that's when it's hottest to the movie people. After publication, it loses its appeal unless the book goes on to best-sellerdom or receives great reviews, which greatly enhances interest.

Film rights sales start out as an option. The author is paid a certain amount of cash for allowing the movie people a certain amount of time to line up the movie's production. Usually the time frame is for six to twelve months and the cash starts in the higher five figures on up, but I know of at least one four-figure deal, and one option purchased with no cash at all., (This is a bad deal for the author. If the option falls through the author will have nothing in return for withdrawing his property from the other film markets.)

At the end of the option's term it can be renewed, in which case you should receive more money, or it expires, and you are free to sell the option to someone else. If “picked up” (that is, purchased,) your option has been sold for the already-agreed-upon additional amount of money.

If you're an author with clout, you might be able to swing a percentage of the movie's profits as part of your deal. Usually, however, it's in your best interest to go for as much upfront money as possible.

Two other ways you can benefit from your movie sales are Film Sequel Rights, where a second movie is based on your book, and Remake Rights, where the movie is rewritten and reshot with a different cast. Then there are Television and Cable Film Rights, TV Specials, TV Series based on your work, and Videotapes or digital Recordings for direct sale or rental.

Film rights sales should be handled by someone who specializes in this area and has access to the industry. If your literary agent doesn't handle this herself, she will probably have a West Coast affiliate who does.

Electronic Media Rights

Publishers are including clauses to cover rights you may not even think of. Some of these, like computer and other electronic media rights, may seem worthless when you are selling your book, but may prove to be quite valuable in our high-tech future.

Educational software, computer games and interactive novels for use on home computers, DVDs for home instruction and entertainment, and electronic databases which would be accessed through computer services, are some rights that may be commonly exercised.

Other rights

Other subsidiary rights like filmstrips/AV materials, audio recordings, large type editions and Braille editions for the blind may or many not go along with the book sale. Although budget cuts have forced educational institutions to limit spending in the area of filmstrips/AV materials, it's still a market possibility. If you think your book could profitably be made into filmstrips or other AV materials for sale to institutions, organizations or even the general public, discuss this with your agent or publisher. These rights will probably not bring in a lot of money, and with the availability of DVD-players, the markets for filmstrips and transparencies are shrinking.

Audio rights for books on compact disks are a growing market more publishers are pursuing. These rights, to the entire book or to excerpts, can be sold separately. They can be divided and sold as direct mail-order rights or as retail rights. These rights can be exercised to sell combination book-tape packages.

Large print editions are appreciated by people with limited vision. Bowker has a directory of these that will help you get a sense of how attractive your book might be to this specialized market. The money isn't terrific, but the markets for these books are increasing as our population ages.

Braille editions and other editions for the physically handicapped are rights usually given away in the copyright application, and I recommend allowing the publisher to grant the right for copies to be made by the Library of Congress' Division for the Blind and Physically Handicapped, with no recompense to the author so long as the publisher also receives no recompense.

Novelties, merchandising rights or product spin-offs to your book could involve things like toys, dolls, stuffed animals or cartoons derived from your children's book character, T-shirts, coffee mugs, coloring books, cocktail napkins, posters, puzzles, calendars, kits, lunch boxes, pencils, games, buttons, greeting cards, stationery, gift wrap, rubber stamps—almost anything that can be derived from your book, its illustrations or its characters.

Commercial rights can accompany either fiction or nonfiction. If you have good ideas that seem appropriate for your book, discuss these with your agent; it may be in your best interest to retain all commercial rights.

Protecting your rights

Allowing your work to be published without a copyright notice can be like allowing squatters to build themselves permanent dwellings on your land. As in real estate, where someone using your property, even without your knowledge, might set a legal precedent for them to continue to do so, so can the author lose or compromise his literary rights by not properly protecting them. And you cannot sell what you do not own.

Copyrights

Although under the Copyright Law of 1978 you do have ownership of your literary material from the time you create it, protecting these rights requires that you be conscientious about filing for copyrights. The copyright should be in the author's name (although it will be the publisher's job to register it) and the copyright notice must appear in the proper form in the published work.

Permissions

If someone wants to use an excerpt of your copyrighted work in his book, he must get permission from you (or your publisher) in writing. Usually, this involves a payment, even if it's just a token amount.

Material that can be used by anyone without permission is said to have entered the Public Domain. It can include material for which copyright protection has not been provided, and material for which the copyright has expired or not been renewed. (The latter applies only to books published before Jan. 1, 1978. Copyright for books published after that date automatically extends to 50 years after the author's death.)

Reversions

Selling the “rights” to use your literary material is separate from selling the actual “ownership” of the material. You are not really selling your property, you are selling the rights to use your property for a period of time. Your agent will see to it that your literary contract will have provisions for your rights to revert back to you.

The publisher should supply the author's agent (or the author) with copies of the licenses entered on the author's behalf, but unfortunately, this is not standard procedure. Even if your publishing contract is later terminated, these licenses remain in force for the time period specified in the license agreement, and the publisher and author each still receive their respective share of the profits.

If you sell the copyright, you lose ownership—at least for 35 years, after which time you may get the property back. But most material has lost its market appeal by then, and who knows if you'll be around to benefit from it anyway?

Work-for-hire

Selling your writing as a work-for-hire is not a good idea, since all rights, as well as the copyright, go to the publisher, usually for one flat sum. Your name may or may not appear on the published piece, and your work can be altered or used in any manner the buyer pleases. You will not get royalties (with some exceptions), you may not get recognition of your work, nor will you even necessarily know how your material has been used. Think carefully before selling your rights this way.

Having said the above in 1993, when I was vehemently opposed to work-for-hire agreements, I now must add that the publishing landscape has changed. Sometimes, in certain instances, doing a work-for-hire or a variation of work-for-hire project makes sense as a means to launch a career or to build writing credentials in a difficult marketplace. Before doing so, however, get expert advice.

An author must understand that his literary properties involve a myriad of rights and each right should be given knowledgeable consideration when any sale is made. Not only should you understand what rights you are selling, you also should know how you and your publisher will share the earnings from the rights you grant to them—all of which will be spelled out in the publisher's contract.

It's desirable to pursue every possible subsidiary right. Not only does this translate into more earnings for the author, but also it greatly enhances the sale of the published book. If the publisher has no interest in pursuing certain rights, these should be retained and marketed by your agent.

Copyright 1993, 1994, and 1998 by Barbara Doyen. All rights reserved.