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Negotiating Subsidiary Rights in Book Publishing Deals

The right to publish a book isn’t the only right that authors can grant to a publisher or retain for themselves. Authors may also grant or retain subsidiary rights in the book. A subsidiary right is the right to publish or produce the book in other formats, such as e-books, audiobooks, films or television shows, and more. This post details some of those rights and gives authors and literary agents insights on how and when to negotiate those clauses of a book publishing deal.

In reality, it is often very hard for an author to retain these rights for himself or herself entirely. As such, the author may be more successful negotiating for a larger split in the profits from these rights. 

Television and Film Rights

Any author in this day and age knows that there is just as much, if not more, money to be made in adaptations than there is in book sales alone. As such, authors generally want to retain as many adaptation rights as possible, and the publisher will generally propose broad language that grants them a broad right to sell all the adaptation rights.

In particular, movie and television adaptations have a strong potential to earn authors a lot of money on top of their book royalties. Because these adaptations have such high earning potential, most publishers will want this right. However, some authors are successful in arguing that they should retain this right, especially if the publisher has never licensed a book to a production company or network before or if the author is represented by a literary agency with connections to movie and television producers, studios, or networks.

An author with a skillful literary agent may be better poised to exploit these rights than a publisher with little experience in the film and television industry. Many reputable literary agencies have special agents specifically charged with exploiting the subsidiary rights of the authors represented by those agencies. That being said, reputable publishing houses often have similar employees who are specifically charged with exploiting the subsidiary rights of the books they publish. It is important for authors to discuss this topic with their literary agent and their publisher to determine what arrangement is best.

E-books, Audiobooks, and Other Formats

There is also a large market for e-books and audiobooks that can be easily exploited as a secondary source of income for authors. As such, book publishing contracts will also regulate whether the author grants or retains the right to exploit the book as an e-book, audiobook, or in some other format.

Audiobook services like Audible are eager to increase the size of their audiobook library and are generally willing to buy almost any published book they can. However, many large publishers are allocating resources to exploiting audiobook rights in-house. These publishers may demand that the derivative right in audiobooks be granted, so the publisher can produce the audiobook in-house and distribute it within existing channels. In such cases, it is likely in the author’s best interest to allow the publisher to do so. Alternatively, an author may be represented by a literary agency with expertise and experience in the area of licensing books to e-book and audiobook companies. In such instances, it may be in the author’s best interest to retain these rights, so his or her literary agent can exploit those rights on his or her behalf. It is important for authors to discuss this topic with their literary agent and their publisher to determine what arrangement is best.

Merchandising

T-shirts, bobbleheads, posters, trading cards, bookmarks, and stationary are all common items on the shelves of bookstores. Frequently, these items feature characters and trademarks licensed from popular books. The authors of these books receive royalties on the sale of those items.

Successful authors that have retained the right to license their characters and trademarks to third parties may seek representation by a licensing agency. Licensing agents have a role similar to literary agents in that they receive a portion of the profits earned on deals that the licensing agent locates and negotiates on the author’s behalf. Licensing agents have connections to retailers, designers, developers, and other merchandisers that are looking for the latest craze to put on their t-shirts, video games, board games, and other products. These relationships make the licensing process easier to execute.

Similarly, many literary agencies and publishers have in-house teams that are tasked with locating interested merchandisers and negotiating merchandise licensing deals on the author’s behalf. Others may rely on third-party licensing agencies. Authors should discuss this matter with their literary agent and publisher to determine who is best suited to exploit these rights in a way that maximizes the author’s potential profits.

Drafting Subsidiary Rights Clauses

From a copyright law standpoint, all these licensing opportunities are considered derivative works. The right to make an adaptation is known as a derivative right. Here is an example of a broad adaptation clause that most benefits the publisher:

Author grants Publisher the exclusive right to sell, license, and otherwise exploit the derivative rights in the Work throughout the world during the full term of copyright and any renewals and extensions thereof except as provided herein.

By using the broad term “derivative rights,” the publisher receives the right to exploit the book as a motion picture, radio play, television show, audiobook, theatrical play, and any other possible format. Thus, it would benefit the author to negotiate this broad “derivative rights” language down to more specific, narrower terms that exclude specific adaptations which the author hopes to exploit himself or herself. If the author seeks to retain certain derivative rights for himself or herself, it is best to explicitly state that in the contract. If the author and the publisher will split the profits obtained from exploiting certain derivative rights, it is best to also explicitly state that in the contract. For example:

Author shall retain the exclusive right to sell, license, or otherwise exploit the Work as an e-book and an audiobook throughout the world during the full term of the copyright and any renewals and extensions thereof except as provided here.

Author grants Publisher the exclusive right to sell, license, or otherwise exploit all other derivative rights in the Work in all other formats, excluding e-books and audiobooks, throughout the world during the full term of the copyright and any renewals and extensions thereof except as provided herein. All sums from the sale of these rights or materials produced under those rights shall be divided so that the Author receives fifty percent (50%) of the net amount received.

It is important for the author to negotiate who has control over these rights and what the author’s royalty will be. Typically, the publisher will seek the sole right to negotiate and sign contracts in regard to subsidiary rights. However, a skilled literary agent will negotiate terms more favorable to the author.


This series informs authors, literary agents, lawyers, publishers, and other interested readers about the basics of book deals. It provides tactics and tips to be used when negotiating a book deal. It consists of four parts that cover negotiating the following topics:

  1. Registering Trademarks and Copyrights
  2. Exclusivity and the Grant of Rights
  3. Subsidiary Rights
  4. Other Important Rights

Check back each week for the newest post or subscribe to the newsletter on bobbydesmond.com to get it sent directly to your email inbox.


About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby attended the University of Florida Levin College of Law in order to pursue an in-house legal career at an entertainment or media corporation. He has interned at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He graduated in May 2018 and passed the New York Bar Exam in July 2018.


 

Negotiating the Grant of Rights in Book Publishing Deals

This post is the second in a four part series that informs authors, literary agents, lawyers, publishers, and other interested readers about the basics of book deals. It provides tactics and tips to be used when negotiating intellectual property rights in a book deal. Check back each week for the newest post or subscribe to the newsletter on bobbydesmond.com to get it sent directly to your email inbox.


Grant of Rights

The grant of rights is a dense clause of legalese that transfers the author’s right in the book to the publisher. In copyright law, the author has a “bundle of rights” that he or she can grant to third parties (like a book publisher.) An author can grant the publisher some or all of these rights. If an author grants only some of these rights, the author retains the other rights that he or she does not grant the publisher. In large part, negotiating a book deal comes down to what rights the author wants to give to the publisher and what rights the author intends to keep for himself or herself. Here is an example:

Author grants to Publisher the exclusive right to print, publish, sell, distribute, license, and otherwise exploit the work in the English language, in all formats, in whole or in part, throughout the world during the full term of copyright and any renewals and extensions thereof except as provided herein.

Within this one sentence, the author has granted the publisher numerous sticks in that bundle of rights including exclusivity, language, format, territory, and term.

Generally, publishers will seek broad language to ensure the author is granting them the entire bundle of rights. An author with a valid reason to retain some of those rights may negotiate for narrower language. Retaining rights can be an effective way for an author to increase the amount of profits he or she receives from any given book. However, retaining the wrong rights can have a negative impact on the author’s financial success. Authors should generally only seek to retain rights if they have good reason to do so. Authors should generally avoid selfishly retaining rights that they do not have the means or intentions to exploit. If the publisher has the means and intends to publish the book in all languages, formats, and territories, then it is often to the advantage of both parties for the publisher to have the ability to do so.

Exclusivity

In an exclusive publishing agreement, the author grants the publisher the right to publish the book, and the author gives up his or her right to grant other publishers that same right. Generally, publishers require authors to grant them the exclusive right to publish a book.

Note that the author in the example above has granted the publisher “the exclusive right to print, publish, sell, distribute, and license the work in the English language…” This means that this publisher is the only publisher that can publish this book in English, so the author cannot grant this right to anyone else.

In a non-exclusive publishing agreement, the author grants the publisher the right to publish the book, but the author also retains the right to grant other publishers the right to publish the book. There are a few notable exceptions where a non-exclusive publishing agreement may be preferable.

First, an author that self-publishes his or her book should prefer to sign a non-exclusive book publishing contract that allows the author to take that book to as many self-publishing platforms as possible.

Second, serial rights are useful when an author wishes to provide a publisher with the non-exclusive right to reprint a work that has already been published in another publication. For example, imagine a publisher seeks to republish a short story that has already been published in a literary magazine. The author will want to provide the literary magazine with first serial rights. In other words, the author gives the literary magazine the exclusive right to publish the short story for the first time in any publication, but the author retains the right to reprint the short story after that. So, the author can then provide a second publisher with the non-exclusive right to publish the short story in a hardcover collection of short stories. This arrangement allows the author to continue signing non-exclusive agreements in the future with other publications.

Language and Translation Rights

It is important to note that exclusivity is limited by the terms that follow it. Take, for example, the clause above, which states that the publisher has “the exclusive right to publish the work in the English language.” Here, the author has granted the publisher the exclusive right to publish the book in English, but the author has retained the right to publish the book in other languages. So, the author would be free to go to a foreign language book publisher and sell them the rights to publish the book in Spanish, German, Chinese, or any language other than English.

Remember, both the author and the publisher have the same goal in mind: to sell as many copies of the book as possible. If a publisher has the means and intends to translate and publish the book in other languages, then it does not benefit the author to retain this right, especially if the author has no connections to foreign language book publishers. In such cases, authors should grant the publisher the right to publish the work in all languages. However, if a publisher does not have the means or does not intend to translate and publish the book in other languages, then it may benefit the author to retain this right, especially if the author or the literary agent has connections to foreign language book publishers that are willing to translate and publish the book in other languages. In such cases, authors should grant the publisher the right to publish the work in those specific languages only.

Format

Format refers to the form the book will take, such as hardcover, paperback, e-book, or some other format. In the example above, the author has granted the publisher the right to publish the book “in all formats,” but authors may choose to retain some format rights.

Remember, both the author and the publisher have the same goal in mind: to sell as many copies of the book as possible. If a publisher has the means and intends to publish the book in all formats, then it does not benefit the author to retain certain format rights, especially if the author has no connections to publishers that can publish the book in those formats. In such cases, authors should grant the publisher the right to publish the book in all formats. However, if a publisher does not have the means or does not intend to publish the book in all formats, then it may benefit the author to retain the right to publish the book in certain formats, especially if the author or the literary agent has connections to publishers that are willing to publish the book in those formats. In such cases, authors should grant the publisher the right to publish the work in those specific formats by using limited language such as “in hardcover and paperback” or “as an e-book.”

Territory

Generally, grants may be worldwide or country-specific. In the example above, the author granted the publisher the exclusive right to publish the work “throughout the world.” Authors should approach negotiation of this term in the same way he or she approaches negotiation of the language and format terms. If a publisher has the means and intends to publish the book throughout the world, then it is likely to the authors advantage to grant the publisher this right – since it means more book sales! However, if a publisher does not have the means or does not intend to publish the book in foreign countries, then it may benefit the author to retain the right to publish the book in other countries, especially if the author or the literary agent has connections to foreign book publishers. In such cases, authors should grant the publisher the right to publish the work in those specific countries or territories.

Term

The term refers to how long the publisher can publish the book for. Generally, publishers will require this period of time to be measured as “the full term of such copyrights (and any and all extensions and renewals thereof)” – which is for the life of the author plus 70 years.

There are a few notable exceptions. For example, book publishing contracts for translations are generally between five to ten years, and audiobook publishing contracts are often for ten years.


This series informs authors, literary agents, lawyers, publishers, and other interested readers about the basics of book deals. It provides tactics and tips to be used when negotiating a book deal. It consists of four parts that cover negotiating the following topics:

  1. Registering Trademarks and Copyrights
  2. Exclusivity and the Grant of Rights
  3. Subsidiary Rights
  4. Other Important Rights

Check back each week for the newest post or subscribe to the newsletter on bobbydesmond.com to get it sent directly to your email inbox.


About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby attended the University of Florida Levin College of Law in order to pursue an in-house legal career at an entertainment or media corporation. He has interned at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He graduated in May 2018 and passed the New York Bar Exam in July 2018.


 

Registering Trademarks and Copyrights in Book Publishing Deals

Once an author lands a book deal, negotiations begin. Typically, these negotiations start with a preliminary discussion between the author and the publisher about the terms of the book publishing contract. The publisher then memorializes the details of that discussion in a memo. This memo generally includes details about the grants, royalties, and any options for future books. Then, the publisher drafts the contract based on their standard book publishing contract.

There are many terms and clauses in the standard book deal that need to be renegotiated and redrafted to be more favorable for the author. These negotiations are done by the publisher and the author’s literary agent or lawyer. Most often, the author’s literary agent or lawyer will review the contract and make changes called redline edits. The publisher will then review these changes and decide whether it accepts them or not. Typically, this process will go back and forth for a couple rounds until both sides are happy with the deal.

This series informs authors, literary agents, lawyers, publishers, and other interested readers about the basics of book deals. It provides tactics and tips to be used when negotiating a book deal. It consists of four parts that cover negotiating the following topics:

  1. Registering Trademarks and Copyrights
  2. Exclusivity and the Grant of Rights
  3. Subsidiary Rights
  4. Other Important Rights

Check back each week for the newest post or subscribe to the newsletter on bobbydesmond.com to get it sent directly to your email inbox.


Once a book is finished, an author may be curious as to whether he or she should register the copyrights and trademarks in his or her book, title, and cover design. This post discusses how the book publishing contract regulates copyrights and trademarks. It provides authors, agents, lawyers, and publishers with tips and tactics for negotiating who is responsible for registering trademarks and copyrights.

Copyright Registration

Generally, books are creative works that are protected by copyright law simply by being written. There is no requirement that an author register the copyright in a book. However, authors can seek additional protections and advantages by registering the copyright in their book before submitting their book to publishers. For example, an author that registers the copyright in his or her book can obtain statutory damages and attorney’s fees in federal court. Registration is also seen as prima facie evidence of copyright ownership, if the case does go to court.

Alternatively, the author may choose to rely on the publisher to submit the copyright registration. This does not fully protect the author against the possibility that the book may be plagiarized by a beta reader, editor, publisher, its employees, or some other party that has access to the work before publication. Nor does it protect the author against the possibility that the publisher may forget or fail to properly register the copyright in the book. In such instances, the author will only be able to seek actual damages and profits (excluding attorneys’ fees) which will likely be much less than if the copyright was registered by the author ahead of time.

As many writing blogs point out, it is not necessary for an author to copyright his or her manuscript before sending it out to agents or publishers. Your book is already protected just by being fixed in a tangible medium – in other words, by being written. Hopefully, there is little to no chance that your book will be plagiarized by the friends you ask to read your manuscript or reputable agents and publishers. However, there is a chance that the work could be infringed, and $35 is a small price to pay for piece of mind.

Copyright registration is an easy process, but authors may seek an attorney to complete the registration process properly. Those authors that do choose to copyright their manuscript should beware of online registration services that charge exorbitant fees or suggest paying extra for unnecessary certificates of ownership. Likewise, authors should avoid falling for the myth of the “poor man’s copyright.” Sending yourself a a copy of your manuscript in the mail and keeping the envelope unopened as evidence that you wrote the manuscript before the postmarked date is not a protection recognized by the copyright statute or by U.S. courts.

Trademark Registration

On the other hand, the title and cover design of the book may also be protected by trademark registration and trade dress rights. Typically, authors will not register trademark in their work before publication. Instead, the publisher’s in-house team will register these rights for the author.

In the event that an author does wish to trademark his or her work, such as an author who self publishes, a trademark attorney should be consulted, as the trademark registration process is more difficult and legally technical than the copyright registration process. A trademark attorney can provide authors with a thorough search of the Trademark Electronic Search System and relevant case law to advise an author on the likelihood that their title or cover design will receive protection.

A trademark attorney can also counsel authors on what classes their works should be registered under. Typically, authors will want to register under Class 16 which covers paper and printed products such as books. There may be other applicable classes such as Class 9 which protects audiobooks among other relevant products. In addition to being more confusing than copyright registration, trademark registration is also more expensive. The filing fees alone cost between $225-$400 per class.

Registration by the Publisher

Many authors will decide to postpone copyright registration and allow their publisher to complete the registration process in-house. If the author plans to rely on the publisher to register the copyrights or trademarks in the book, title, and cover, then the book publishing contract should include a clause which states that it is the publisher’s responsibility to do so in the author’s name but at the publisher’s expense before publication.

Separately, the author should ask the publisher to agree to indemnify the author, in case the publisher forgets or fails to properly register the copyrights or trademarks in the book, title, or cover.

Copyright Notice

The book publishing contract should require the publisher to include a notice of copyright in the name of the author in a form, place, and manner that complies with copyright law in the United States and/or wherever the book is published.

Assignment vs. License

An assignment occurs when an author gives up the copyright in the book to the publisher. In other words, the author no longer owns the copyright in the book, and the publisher is now the rightful owner of the copyright. This is most common in scenarios where the author is an employee of the publisher. For example, a journalist whose work is routinely published by a news magazine.

A license occurs when an author grants a publisher permission to use the copyright. In other words, the author retains ownership of the copyright in the book, and the publisher may reproduce, distribute, and sell the book. As such, an author of a book or series should always consult a trained agent or licensed attorney to ensure that the book publishing contract grants the publisher a license to exploit the work, not an assignment of the copyright. It is the agent or attorney’s job to guarantee that the book deal is as favorable to the author as possible in this regard.


About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby attended the University of Florida Levin College of Law in order to pursue an in-house legal career at an entertainment or media corporation. He has interned at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He graduated in May 2018 and passed the New York Bar Exam in July 2018.