Publishing Contracts: Grant and Reservation of Rights

September 15, 2010

The provisions in a publishing contract (and what is negotiated out or modified) cannot be more important in launching your book and whether it is successfully distributed. The author receives a contract that reflects the publisher’s legal position; not yours. Contracts establish the rights and obligations of the parties and have to be scrutinized carefully. There should be no ambiguity as to either the rights the author is granting or the obligations of the publisher. Provisions that are unclear or appear unfair should be queried and modified or deleted.

You may be told by your editor when you attempt to negotiate changes to the publishing contract that the provisions are “standard.” There is no such thing as “standard.” There are provisions that the publisher is either willing or unwilling to modify or delete. My experience is that once publishers send a contract they are interested in the book and are prepared to negotiate the legal and business terms.

The grant of rights, which is usually an early provision in the contract, is key. The rights granted and retained are critical to both publisher and author. The publisher wants not only to publish and distribute the book throughout the world for the term of copyright but also to exploit the subsidiary rights. The publishing contract typically provides for the territorial scope of rights and a list of subsidiary rights with the proposed sharing of revenues for those rights. It may be preferable for the author to grant some of these rights and retain others.

The publisher should not control the book or receive more than a fair share of the income it generates. The author should be wary about giving away derivative rights and particularly careful about the definition and scope of electronic rights in the contract. Some publishers, for example, are not best equipped to sell translation or performing rights. You should consider granting less and retaining more, particularly for books that have movie, theatrical or merchandising potential. Some publishers, for example, are not best equipped to sell performance rights.

Important Negotiation Points

  1. The publisher should be equipped to distribute the book in the territory granted
  2. The contract should provide for an equitable apportionment of proceeds from subsidiary rights licenses.
  3. The contract should contain out of print and termination clauses which permit the author to reclaim all rights to the book or rights which the publisher has not licensed within a reasonable time after publication.
  4. The contract should contain a clause which specifically states which rights are reserved by the author.