Let’s Talk About Rights, Baby.

An Author’s Guide to Rights and Why Not to Hoard Them Unless You Have Good Reason To

Okay, yes, I’m channeling Salt-N-Pepa for this week’s post because who doesn’t need a little pick-me-up right now?

And at the risk of being risqué in my analogy, there are some legit similarities between rights and sex (click Salt-N-Pepa hyperlink above if you’re confused):

1) In both cases, it’s smart to protect yourself;
2) In both cases, while you can definitely go it alone, it’s better in a partnership;
3) If you’re inexperienced or afraid, you might think it’s just one thing, or just one way, but in both cases, it’s a lot of things and not one-size-fits-all.

Without further ado, and no more sex talk, promise . . . let’s talk about RIGHTS. Before we get into it, for the sake of defining what we’re talking about, these are the most common rights up for negotiation in book publishing contracts:

• Derivative Rights—basically anything that derives from your project, including merchandising, spin-off stories and publications, and, importantly, film and TV rights.
• Foreign Rights—the ability to sell an author’s book to a foreign publisher to publish that book in a foreign language and sell it through foreign channels to the readership of that foreign language.
• Territory/Language Rights—separate from foreign rights in that most publishers allow authors to negotiate “World English,” or will retain specific territories, such as Indian rights for a book that the publisher thinks it can sell well in that specific territory (because the author is Indian, for instance, or the book takes place in India). With World English rights, publishers can sell their English-language version of the book Worldwide, rather than be limited to North American retail outlets only.
• Subsidiary Rights—refers to selling off bits and pieces of the book in the form of excerpts. Typically in these cases the author gets a higher percentage than the publisher if the publisher manages to place an excerpt in, say, Vanity Fair, or Good Housekeeping. It may also include third-party contracts for something like inclusion in an anthology, in which a single chapter or essay from the author’s book is repackaged into a new book sold by a different entity.
• Audio Rights—rights to the audio version of the author’s book.
*Note: Print and Digital Rights are typically non-negotiable and therefore not included in this list. Copyright is also non-negotiable insofar as your publisher is responsible for filing copyright in your name.

Protect Yourself

As an author, it’s appropriate to think about all the ways to protect yourself against those who might take advantage of you. You want to know what you’re signing when you sign a contract, and to understand what your publisher will or won’t do for you. There are also horror stories that reverberate throughout the publishing industry of authors who want specific rights reverted back from their publishers but can’t get them. For the vast majority of authors, however, the rights the publisher retains are good for both parties. Your publisher’s job is to try to make as much money off of your book as possible, and that goes well beyond its potential U.S. and Canadian retail sales (for American and Canadian authors). If a publisher can sell your foreign rights, they will. If they can place excerpts of your book in magazines that pay for the privilege, they will. It’s a business, after all, so the notion that your publisher wants your rights to make extra money for themselves—and for you because you get a percentage of all sales—should not be seen as inherently nefarious.

If you have an agent, your agent may rightly want to hold onto various rights because they intend to try to sell those rights on your behalf. If you’re an unagented author, however, please consider what you intend to do with your rights if you withhold them from your publisher. If the answer is nothing, keep in mind that your publisher actually acts as an agent in third-party negotiations. Here’s where protecting yourself can and does go too far because the notion that authors should keep every single right they can “just because” is ill-advised. If your publisher has any track record of selling rights, and you (or your agent, if you have one) have no intention of selling them on your own, allow your publisher to retain the rights. If you’re concerned about the publisher retaining your rights in perpetuity, ask if you can negotiate a situation in which either: a) you can revert the rights at your request; or b) you can revert the rights after a certain time threshold, meaning that, for instance, the rights revert back to you if your publisher hasn’t managed to sell the rights after two years.

Better in Partnership

Let’s say you’re an author who’s retained your rights, and you’re lucky enough that a third party has found you and wants to make you an offer. Now, you have to be your own negotiator—not to mention vetter. If you’re good at this, wonderful! If you’re not, you might get low-balled and not realize it. You may not know the company that’s reaching out to you is a scam operation. You might jump at the first opportunity because you’re not sure what’s a valid offer for foreign publication, or audio rights, or a film option; or how much money constitutes an appropriate payment for an excerpt in a particular magazine. Recently, She Writes Press negotiated double the original offer for a film option on behalf of one of our authors. It’s true that, as the publisher, we take a percentage of the author’s cut on this deal, but authors can get antsy when it comes to asking for what they’re worth. In my experience running a women’s press, our authors are so grateful to get an offer that they often don’t even counter. Publishers typically have an agent, if not an entire team of agents, working on their behalf to cut these deals, so especially for authors who aren’t agented, allowing your publisher to negotiate these rights on your behalf can be a huge relief, not to mention putting you in a position to make more money. I do want to reiterate the agent relationship here because “better in partnership” definitely includes you in partnership with your agent. I always happily relinquish rights to authors who are agented, but when authors are not, I encourage them to at least let their publisher *try* to sell their rights.

Rhetorical question: What do you think has a greater likelihood of success—a team of people actively talking up your book, advertising in their catalogues, and going to foreign book fairs to try sell your rights, even if they ultimately fail to do so, or you waiting at home for an offer to land in your inbox? Rhetorical because it’s obvious, but also because the latter rarely happens. (Though, yes, it has happened!)

Naivete in the World of Rights

Look, unless you’re an experienced or savvy author, you’re not supposed to know about rights or how to sell them. Most authors have no idea how to go about selling foreign rights, or film rights. In my experience, authors have greater success with derivative rights and audio rights if they know where to look, which is also why these are the most common rights authors tend to hold onto. But again, if you intend to do nothing proactive, or if the idea of looking for a “buyer” makes you uncomfortable, don’t put yourself in a position to wonder what might have been if you had a team in your corner.

Not all books are the same, and not all offers are equal. So some rights sell more easily. Some books get multiple offers while others get none. In my experience, it’s not uncommon for authors to believe that their publishers are out to get them, or are intentionally doing nothing for them. I encourage authors to be in conversation with their publishers on these matters, before and after contract negotiations. Ask your publisher questions about their rights successes. What’s their track record? How many foreign deals to do they do a year? How many film options have they negotiated? How many audio book deals do they do a year? Consider how you language these questions. Recently, an author negotiating her contract with me asked: Does She Writes Press even sell foreign rights? I was taken aback? Uh, yes, we do. The question I would have preferred might have been phrased: How many foreign deals does She Writes Press do a year? To which I could have answered—about 20 to 30. Not gangbusters by any measure, but not bad. And we sell more audio book deals than that, and we’ve made our authors serious money on movie options, even though only one to date has become a motion picture film. If you’re a person with high expectations, say as much to your publisher. Let them know that you expect to get rights deals, and let them tell you their thoughts on the matter. If you don’t like the answer, then you make an informed decision.

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I’ve written this post partially out of self-interest because so many of my authors come back later, months later, letting me know that they want to give us back this or that right because they haven’t sold anything, which is extra work for us and usually comes too late, after our catalogue has been finalized and sent out—the one in which we articulate to prospective buyers what rights we retain.

I’m a publishing professional with 23 years of experience working for publishing companies, negotiating publishing contracts, and dealing with authors’ anxieties. Yes, sometimes authors want their rights back from their publishers and can’t get them. But this is not the norm, mostly because it’s much more common that books are placed out of print before authors are ready for that reality. And for hybrid-published or co-published authors, best practices insist that authors have an easy track to rights reversion. Thus, my advice, whether you’re looking at a traditional or hybrid contract, is to go into your negotiations with curiosity and good will. Don’t start from an adversarial place, and if you’ve hired out your contract to a lawyer or a consultant, read their questions before sending them along to your publisher. Do the questions sound adversarial? If so, temper them, because adversarial questions are not a good starting point for contract negotiations. Maybe you feel your publisher needs to earn your trust, and okay, that’s fair. Also, it’s a partnership in which you both have the same goal—to sell as many books as possible. Therefore, if and when your publisher can support you to make some extra cash off rights, that’s the cherry on top.