Book Contracts: Let’s Talk Rights

In the second installment of her column, Kate McKean tells us all about the rights and subrights that could appear in your contract when you sell your book to a publisher.

In our last installment about book contracts, we talked about money. Now it’s time to look at what you’re giving away for that money. Today we’re talking about rights.

Keep in mind that all the advice in this column applies to US copyright law. If you live elsewhere, you should research your country’s specific copyright laws.

When someone says they “sold the rights” to something, that means they gave permission to another entity to do something with what they made. As a writer, you own the rights—copyright and more—to your work from the minute you create it. (That doesn’t mean just because you write a Baby Yoda story that you own Baby Yoda or that you can sell that Baby Yoda story. But if it’s all originally yours, it’s yours.) You do not have to register the copyright to your work to protect it. It’s not extra protected if you do. There is a whole clause in the contract that says the publisher will register the copyright for you in your name, and you want them to do it that way.

For the purposes of this article, let’s say you’ve written a book that’s wholly your idea (no Baby Yoda in sight) and you’ve gotten a book deal from a traditional publisher. When you get the contract, one of the first things you’ll see will be the Grant of Rights. This defines, in broad terms to start, what the publisher can do with your book, usually in the form of where they can print and sell your book, in what formats, and in what language(s), for how long. It might say something like “The Author grants to the Publisher, during the full term of copyright, the right to publish, distribute, and sell, in all formats as specified herein, and to license said rights exclusively throughout the world in all languages.”

The note I’ve emphasized in italics means you’ve sold world rights to the publisher and they can send and sell your book anywhere in the world in English, as well as sell someone else the right to translate it and sell it elsewhere. Just because a publisher can do these things doesn’t mean they will. They only do this where there is a market for it. But the publisher is allowed to try. It also means you can’t do it yourself. You don’t have the right to anymore.

You might sell world English rights (the publisher can sell it anywhere in English, but not translations) or North American English rights (the publisher can only sell it in English in the US, Canada, the Philippines—yep!!—and various other US territories). This is the main thing we talk about when we talk about rights. But there are also subsidiary rights. Those get a little more complicated and are covered in a whole different section of the contract.

Outside of where you allow a publisher to sell your book, your contract also says what formats they can make out of your book. Generally speaking, you sell publishers the rights to make a print book, in hardcover or paperback or both, an ebook, and (more and more often these days) an audiobook. There are also other things your book and/or its content can be made into, and you (and your agent) can (mostly) decide what you want to let your publisher do.

What else can your book be made into? Common subsidiary rights included in major contracts are:

First/Second Serial Rights: This is the publication of an excerpt of your book before (first) or after (second) your book comes out. Very often the publisher holds on to these rights; for instance, they might get an excerpt published as part of the publicity plan for your book. This is a good thing. If you have a particularly explosive nonfiction book, though, a magazine or newspaper might want to pay you a nice sum for an excerpt, so you might want to hold on to these rights if you can. It’s not a deal breaker, but it could be nice.

Book Club Rights: If the Book of the Month Club wants to put your book in their box and send it to their subscribers, this is how they do it. It is not the same thing as Reese Witherspoon’s book club or one on a morning show. These book club rights are like a subscription box. Reese’s is a publicity event.

Permissions: If someone wants to quote from your book in another book, they need permission to do this, and the publisher handles that. If you’ve ever wanted to put part of someone else’s poem in your book, this is what I’m talking about here.

Trade or Mass-Market Paperback Rights: In ye olde days of publishing, like the ’50s through the ’80s, you sold hardcover rights to one publisher and then you sold the paperback rights to a totally different one. I think there was an anecdote in Stephen King’s On Writing where he described getting the call that he sold hardcover rights to Carrie before getting another call that he sold the paperback rights for much, much more money. Then all the hardcover houses bought the paperback houses and, well, I’m getting off track. Your publisher selling the paperback rights to another publisher is rare nowadays, but, technically speaking, it can happen. I’ve seen this once myself in the last fifteen years.

There’s also something in the Subsidiary Rights clause called Other Book Publication (or similar) that means, well, other kinds of books your book could become. This could be a large-type edition, a slightly different edition sold in a school book fair, or a premium edition a company might buy to put their logo on and give to their employees. (Make sure it also says that you will be given the opportunity for approval.) These things, too, are generally rare, but they’re there just in case.

There are two things in the subrights clause that look like they’re covered in the Grant of Rights, but the difference is subtle. The Grant of Rights says what the publisher can do themselves. The subrights clause is what the publisher can let someone else do. Here, you’ll see British Commonwealth Rights and Translation Rights, which means the publisher can sell the rights to publish the book in the UK to someone else—like a UK publisher—as well as sell the rights to translate it to another foreign publisher, not (necessarily) a division of their own company in another country. (Why they would choose to do this instead of doing it themselves would require a very long explanation and hinge on book-specific reasons, so it’s enough that you know they can do it at this point.)

Now, we come to the fun stuff. Your book contract may also include such subsidiary rights as: Calendar Rights, Ancillary/Paper Product Rights (journals, notebooks, etc.), Software/Multimedia Rights (apps, lol), Enhanced eBooks (no one wants these, publishers!), Theme Park Rights (yep! Sometimes!), Performance/Dramatic Rights (that means TV/movies/plays), Audio Rights, and Commercial/Merchandising Rights (T-shirts, figurines, toys). Wouldn’t it be cool if they made toys out of your book? It’s unlikely, but the unlikely is what the contract is for.

What you want or need to reserve (i.e. don’t give to the publisher) really depends on your book. For a straightforward novel, you don’t really need to worry about the calendar rights. You can ask to keep them and the publisher might say yes, but if they don’t, it’s not a deal breaker. Real talk: There’s not going to be a calendar of your novel. If you’re doing an illustrated book, it might be more enticing to keep calendar, paper products, and ancillary rights, but the publisher might really fight back on that, especially if they do a lot of those kinds of things themselves. You might say you want them and the publisher might say no, and then you have to decide if that’s a hill you want to die on.

Really and truly, though, don’t give publishers your performance/movie/TV rights. Don’t! It’s not standard and they’re the most potentially valuable ones! Don’t give publishers your software/multimedia/video game/app rights either. (Ask me about the time a publisher tried to argue this with me for a book about teen pregnancy, and I said on the phone, “What’s the game? Dodge the sperm???” Really I said that. They did not get those rights.) Book publishers are not app developers, they are not going to pay the $300,000 or whatever it costs to make an app, and it’s just silly if they insist on keeping them. Enhanced eBooks (which are ebooks with extra things in them like video or sound that publishers have been convinced for a decade that people want that no one does) should be reserved to the author whenever possible just so the publisher doesn’t try to make something dumb, but that’s just my personal opinion.

The subrights clause also outlines how you split the money with the publisher if they sell it, which we talked about last time. But the other thing about money and rights is that what you grant to the publisher affects not only how much you get, but when and how. If your US publisher sells your book in the UK, you split the money, and your share (usually about 60 percent) goes in your royalty account and adds up to earn out your advance. If you retain your UK rights, then your agent has the opportunity to sell those rights directly to a UK publisher, and if they do, you eventually get a check directly, minus commissions from your US agent (and any possible coagent they use, which is a common practice). You have to deal with foreign taxes, and foreign checks take forever to come in, but a check is a check. There’s no guarantee anyone will sell any subright to your book, but it might be worth it to get that check directly rather than to hope you eventually earn out your US advance.

Your rights are your rights. They do not belong to the publisher until you grant them to the publisher. There is a standard package of rights that publishers expect (hardcover, paperback, ebook, and, like I said, more and more audiobooks these days), as well as first/second serial rights and things like permissions. But if the publisher comes in talking about their rights, I always correct them. These are the author’s rights. We’re just letting the publisher play with them for a while.