United States: Author’s Rights: A Basic Roadmap

Once a book has been accepted by a publisher, navigating through the morass of rights relating to the work is tricky at best. When making the deal for the publication of your book, it’s important to pay careful attention to what rights are being reserved to you and which are being granted to the publisher. What follows is a basic roadmap to what the various rights are and how to protect them in the negotiation of a publishing contract.

The basic right granted by an author to a publisher in the standard publishing contract is the exclusive right to print, publish, and distribute the work in book form throughout a territory defined by contract. Typically, this grant of rights endures throughout the full term of the copyright. It is important to note that the author retains the copyright in the work.

Subsidiary Rights.

In addition to the right to publish the work initially in book form, there are a number of related rights in connection with the work called "subsidiary rights". These include:

First Serialization Rights. This is the right to publish all or part of the work (including condensations or excerpts) in newspapers, magazines or other periodicals prior to the initial publication of the work as a book. Typically, the author retains this right. It is particularly important for high profile or very timely non-fiction.

Second Serialization Rights. The right to publish all or part of the work in serialized form following its initial publication as a book is usually granted to the publisher.

Other Reprint Rights. Other rights to reprint the work after its initial publication, including as an abridgement or selection in an anthology, are usually granted to the publisher. Reprint rights also refer to paperback rights. Publishers typically require the right to determine whether the book will appear first in hardcover or paperback. The publisher may want to acquire the right to publish both the hardcover and paperback editions (a so-called "hard/soft deal"), or it may decide it wants to publish only the hardcover right, and will license the right to publish the paperback to a third party, in which case the paperback rights become a subsidiary right. The rights to publish the book in special editions, such as large-type, premium, Braille, or other special formats, are usually granted to the publisher.

Book Club Rights. The right to publish the book in connection with book clubs (such as the Book-of-the-Month Club) is almost always granted to the publisher, with the author receiving 50% of proceeds received from the licensing arrangement.

Commercial Tie-ins. This is the right to use the title, characters or other elements of the work in connection with merchandising opportunities such as calendars, mugs, clothing, stuffed or "plush" toys, etc. Usually, authors reserve these rights for themselves.

Audio Rights. The right to use or adapt the work as a basis for audio recordings is usually granted to the publisher, with the author receiving a 50% split of the proceeds. Sometimes the author may negotiate a separate performance fee if providing services as the reader of the work in the recording.

Performance Rights. These include motion picture, dramatic, television, radio and related rights and are usually reserved to the author.

Electronic Versions; e-Book Rights. Because the landscape is changing so rapidly, there is no standard definition of electronic rights. Basically, these are the rights to transmit and display electronically the text of the work, without enhancement, in any media and on any platform either now existing or later developed. Currently, the right to use so-called "enhanced versions" of the work (meaning sight and sound enhancement of the original verbatim text of the work) is typically reserved to the author. The publisher may want to specify that any such enhanced version cannot contain 30% or more of the verbatim text of the work. At present, it is common for the author to receive a 50% split of proceeds received from such electronic versions.

Foreign Language Rights; English Language publication rights outside North America. It is typically the case that the publisher gets the exclusive right to publish the work in the English language in the U.S., Philippines, and Canada (a so-called "North American deal"), and the non-exclusive right to publish the work in the English language in all other territories of the world except the U.K. and a number of other countries (usually listed on an attachment to the contract). Therefore, the author commonly retains the exclusive right to publish the work in the U.K. and foreign language publication rights in all other territories, which may then be sublicensed by the author.

There are a number of standard protections that authors should understand and look for in any book publishing contract:

Reserved Rights Clause. Any rights not expressly granted to the publisher in the contract are reserved to the author. The standard publishing contract contains a "Reserved Rights" clause which essentially states that all other rights not specifically granted to the publisher by contract are reserved to the author for the author’s own use and disposition.

Reversion of Rights for Failure to Publish. The publishing agreement should provide that, if the publisher fails to publish the work within a specified time period, the agreement will automatically terminate, with all rights reverting to the author. Be sure that the contract also provides that you may retain any advance monies already paid you at that point in time. (In some cases the publisher may agree to pay the full amount of the advance in the event of failure to publish, but at the very least, you should get to retain the amounts already paid.)

Reversion of Rights for Out-of-Print Works. The contract should also provide that, in the event that the work is out-of-print and unavailable for sale by the publisher (typically at any time two years following first publication of the work), then the author may make written demand to the publisher that the work be reissued. If the publisher does not comply with such demand, the agreement usually terminates and all rights granted to the publisher revert to the author. The negotiated points here are usually with regard to defining when a work shall be deemed "out-of-print." For example, the contract may specify that a work will be "out-of-print" when no edition of it is available for sale in the United States in certain minimum quantities, or when aggregate sales of the work fall below a pre-negotiated minimum target. A hotly debated issue today is whether the availability of electronic versions of the work should count toward the work being "in print" for purposes of terminating the contract. Some publishers are dealing with this issue by specifying that electronic versions won’t cause a work to be deemed "in print" unless royalties arising from those versions reach a certain agreed-upon dollar amount.

There are many other contractual pitfalls to look out for in the negotiation of a publishing agreement. You should consult with an attorney familiar with the issues before entering into any contract relating to the publication of your work.