Contracts 101: Grant of Rights

August 17th, 2006

I have lately overheard questions about publishing and “selling” your work to publishers that made my hair stand on end. The scary thing isn’t the folks asking the questions (no one is born with an instinctive understanding of subrights sales and escalator clauses), it’s the people giving authoritative wrong answers. Some of these people have clearly been misinformed, others may be giving their best guess as if it were Holy Writ, and some, I fear, are deliberately misleading.

For example, I recently heard a guy on the radio insisting that it was “publishing practice” to buy your copyright at the time of a book sale–PublishAmerica, he said, was unusual in that the author retained copyright. Wrong, wrong, wrong. And there’s more of this sort of disinformation out there. It makes my teeth hurt. So, in my person as former-assistant-to-the-publisher of a midsize national publisher with a significant SF and Fantasy line, as well as writer, I’m going to attempt, now and then, to offer some true gen.

Like, for instance, what are you selling when you sell a book or story? Outside of Work-for-Hire (which I will explain at another time, if anyone is interested) you’re not really selling, you’re leasing the right of publication to a publisher. In most cases the rights you’re leasing are pretty clearly defined. Thus, paragraph 1 of my most recent book contract says:

Grant of Rights
The author hereby grants exclusively to the Publisher the following rights in and to the work of fiction tentatively entitled Petty Treason (the “Work”) during the full term of copyright (and all renewals and extensions thereof) throughout the world; the sole and exclusive right to print or otherwise reproduce, publish, distribute and sell the Work in the English language in book form and the sole and exclusive subsidiary rights specified in paragraph X, with the exclusive right to license any or all of such rights.

There’s a mouthful. And it’s the heart of the contract. Essentially, it says that the Publisher is leasing the right to publish and distribute my book in English anywhere in the world. It means that as long as the book stays in print they retain that right through the life of the copyright (there’s a later paragraph that states that if the book ceases to be in print after X number of years, I can ask them to reprint or revert–that is, put it back into print or return the rights to you to sell elsewhere). It also means that the publisher has whatever subrights I’ve specified in paragraph X–microfilm rights, the right to the right to publish in translation (Cuban rights! Transylvanian rights!) or make a movie or a video game.

The rest of the contract (13 pages of it) is spent defining and expanding on that first paragraph: what am I physically delivering to the Publisher? When should I deliver it? How much, and when, am I going to be paid? What subrights are included in that first paragraph? What happens if I default in some way? What happens if the Publisher defaults in some way? How many free author’s copies do I get (yes, it gets that specific). But the grant of rights is the part people talk about when they say they’ve “sold” a book.

And for what it’s worth–and I’ve worked in publishing off and on for 15 years, and been a writer for (ulp) 25 years–having the book copyrighted in your name is not (as the guy on the radio implied) a publishing rarity. It’s SOP unless there’s some other factor involved (you’re writing a media tie in novel, or the copyright is being held by your off-shore tax shelter, or some other exotic condition).

I can continue my contract exigesis, if anyone’s interested.

23 Responses to “Contracts 101: Grant of Rights”

  1. David Louis Edelmanon 17 Aug 2006 at 2:42 pm

    I, for one, would be very interested to hear more of your wisdom about publishing contracts, Madeleine.

    One thing worth mentioning to the neophytes out there: first-time authors usually don’t get much control over which rights they’re granting/”leasing” to the publisher. Because unless you’re a brand name already, or your book has gotten lots of competitive bids from different houses, the publisher has all the leverage.

    There’s an interesting discussion going on about the things authors don’t get much control over on Justine Larbalestier’s blog, among other places.

  2. rettersonon 17 Aug 2006 at 3:32 pm

    Yes, Madeleine, I think this would be an enlightening and eminently useful exegesis!!

    Pray, continue, m’dear. Or “Please, sir, may I have some more?”

    {I’m looking forward to knowing if I have to give up the rights to action figures and Pez dispensers of my characters — eh, among all of the other things.}

  3. Madeleine Robinson 17 Aug 2006 at 4:12 pm

    The biggest and most daunting right you have, of course, is to say No. Which can be a deal breaker. So you have to be very clear about what is important to you and what is realistic. For example, I remember talking to a writer–not a first time writer–who insisted on keeping many subrights despite the fact that she had no agent, was not the sort of promoter who would known how to get someone interested in Pez dispensers, and despite the fact that keeping those subrights meant the publisher wasn’t paying for them, and thus her advance was smaller. It wasn’t that she was planning on flogging the Moldavian translation rights herself, it was that the objected in principal to selling the rights. Okay for her, but I think it was a dumb move.

    My first five books, I had no agent. I did, however, call up my editor and ask questions about all the things I was giving away. No one is going to penalize you for asking questions.

  4. Marie Brennanon 17 Aug 2006 at 4:33 pm

    I wrote out a plain-language translation of my first contract, section by section, so that I could use that as a reference to find where exactly it stipulates what’s going to happen with regards to, say, an audio book, without wading through the whole contract itself. That way, I made sure I understood every bit, and if there was something I didn’t understand, I asked my agent to clarify.

    But I’d love to see more exigesis of contract matter; the better I understand the subject, the more professionally I can behave about it.

  5. kateelliotton 17 Aug 2006 at 4:49 pm

    I think more info about contracts etc is always good. No matter how many times I read people posting about these matters, I always learn something new.

  6. kateelliotton 17 Aug 2006 at 4:51 pm

    btw, isn’t it true that in academic publishing the work is often copyrighted under the name of the press, not the author?

  7. Madeleine Robinson 17 Aug 2006 at 4:55 pm

    I’m not sure about academic publishing as a whole, but a cursory glimpse through some academic press books around the house suggests you’re right, Kate.

  8. Alexon 18 Aug 2006 at 10:24 am

    Based on my second-hand experience with this stuff this seems right about academic publishers. But even here I’ve heard that there are some significant publishers – mostly English, such as Oxford University Press – who at least sometimes leave rights to the author.

  9. Marie Brennanon 18 Aug 2006 at 11:58 am

    I was told in a seminar a few years ago that yes, any article I publish (not sure about books) in an academic journal, they’ll most likely take the copyright. Which made my fiction-writerly head explode, lemme tellya.

  10. Hughon 18 Aug 2006 at 1:04 pm

    I don’t have a huge academic publishing record, but both scholarly presses I have published with retained copyright in themselves (I didn’t know enough to ask or whether it would matter if I did). The somewhat specialized textbook oriented publisher with whom I brought out a documentary source reader for one of the bread-and-butter courses I teach allowed me to hold the copyright in my name. Just additional data on the question…

  11. Carol Bergon 18 Aug 2006 at 4:28 pm

    I’ll recommend Agent Kristin Nelson’s PubRants blog for an excellent reference on contracts. She just finished a series of posts called Agenting 101

    http://pubrants.blogspot.com/2006/06/agenting-101-part-one.html.

    Carol

  12. Shawna R. B. Atteberry » A great siteon 19 Aug 2006 at 2:34 pm

    [...] I discovered a great site that I wanted to share with other sci-fi/fantasy writers on my site: DeepGenre. DeepGenre is a collabarative blog where nine authors give help, advice, and insight into the general writing business and the specifics of the sci-fi and fantasy genre. This is the entry that introduced me to the site: Contracts 101: Grant of Rights by Madeline Robbins. I now have an idea of what a contract will look like and be about when I see one. Fantasy writers don’t miss Kate Elloit’s 11 Things in Fantasy/SF that I don’t Promise Not to Use (or Keep Using) in My Writing and Kevin Andrew Murphy’s 6 More Things I Could do Without in Fantastic Literature and I don’t plan to use Except to Make Fun of. They also have a discussion board for those of us writing our first novels. It is well worth time to check out and read.   [...]

  13. Michael Capobiancoon 27 Aug 2006 at 1:44 pm

    I’m certainly interested in seeing more of your commentary on publishing contracts, Madeleine. I’d be particularly interested in hearing your opinion on whether the typical publishing contract covers what Amazon and Google are doing with their digitization programs, Search Inside the Book, especially.

    Michael

  14. heatheron 10 Sep 2006 at 3:21 am

    TOR will accept an unsolicited manuscript, and as they have published a few of my favorites i had been considering doing just that. What would be your advice on such an action?

  15. Madeleine Robinson 10 Sep 2006 at 2:02 pm

    Tor will indeed accept an unsolicited manuscript, and if they’re interested, that makes it easier to get an agent (Catch-22 as applied to publishing: an agent is more likely to be interested in an unknown if there’s already interest from a publisher; you can’t necessarily get a publisher’s interest without an agent). However, Tor gets (or used to when I was working there) something on the order of 200+ unsolicited manuscripts a week. And they look at them, or at least the first few pages. Since everyone from editors to interns is overworked (the theory is that in lean times everyone is working to capacity and no one is superfluous enough to be downsized) slush is rarely looked at on a daily, or even a weekly basis. If someone–usually an intern or editorial assistant–has the time to look at unagented slush they’ll go through a few: read the first couple of pages and decide whether someone should read further. When the piles of slush get to life-threatening height (I’m not kidding about this–the shelves pulled out of the wall of the managing editor’s office once and rained manuscripts down all over the place–the woman was damned lucky she wasn’t sitting at her desk when it happened) they’ll have a “slush party” with every available hand (sometimes from other departments) sitting down and going through manuscripts at high speed–sort of like speed dating, you’ve got maybe six pages to make an impact.

    So the short answer is: I think Tor is a terrific place for a first-time author, but don’t be surprised or outraged if it takes them a year or more to read and respond to your submission. This isn’t done to torture you; it’s because of the press of business. And, as you say, Tor is one of the few publishers who will accept unsolicited manuscripts–for exactly this reason. Your call.

  16. heatheron 10 Sep 2006 at 2:49 pm

    thank you. i think it was fate that i went to kerrs’ site to find a publishing date and wound up here. i very much appreciate your knowledge and willingness to share it.

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  21. Andrewon 30 Nov 2011 at 10:38 pm

    That’s good to know.
    I was never sure how the publishing process went, and I’m working on my first manuscript. So far I like the story a lot, and i go through it frequently. In the probably event that it doesn’t get published, what do you think I should do?

    Should I go through and try to make the story more interesting in general with more impact and dynamics or something like that?

    Should i give up on the story and move on to the next book?

    Should i try to market it to someone else and see if it will have an impact there?
    I would like a strategy that will be effective should my first work be a floppy mess of uninteresting fictional literature.

    and i don’t know how this works, but if you want my email or something, not that you do, i’ll happily provide it.

    I’m very interested in all the advice you can give. I want to write something that people will want to read more than just once. I want to spice up someone’s imagination with my work. You know? Money is always awesome, too.

    but in any case, thank you very much for the insight you have already provided. It’s been incredibly helpful.

  22. tmannion 26 Nov 2012 at 1:57 am

    Pls, is it possible to grant a right to your tv game show concept without collecting assignment fee because been scared of losing the promoter of the said project..altho the promoter agrees to share the revenue proceeds at 75/25..25% is my share…so am asking is that all and if I have to collect an assignment fee..how much should it be and duration most grants last?

    Thanks

  23. Juleson 18 May 2014 at 9:03 am

    Thank you so much for giving an example of what a grant of rights clause would typically look like. I have just received my contract (which I’m having vetted by the SOA as I am unagented) and I really didn’t know whether I was reading the grant of rights clause correctly. What threw me is that duration of copyright is my lifetime plus 70yrs – which seemed a very long time! If it’s a standard clause then that has put my mind at rest.

    As regards subsidiary rights, the publisher’s counter to my request to retain, dramatic, movie/film and merchandizing rights, was to ask for them for 5 yrs. I don’t think it’s a deal breaker if I refuse but I am nervous about negotiating.

    Final question; is a clause stating that ‘the publisher retains the right to request that the author produce prequels, sequels, additional works and other such materials in line with the work’ an unusual or sinister one?

    Many thanks and excellent blog.

    J

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