Last week we looked at the “big 4” concerns for authors where grants of rights in publishing deals are concerned. (To review, those are exclusivity, geography, languages and “forms and formats.”) Today, we’re taking a closer look at what, exactly, publishers may mean by all “forms and formats.”
Many publishing contracts contain a grant of rights to the publisher that includes “all forms and formats,” or “all forms and formats now known and hereafter developed.” (The latter is more common.)
Most writers (and others) assume this means printed books and e-books – and it does. But the clause includes much more. “All forms and formats” includes printed books, e-books (regular and enhanced), audio books, apps (for iPad, iPhone, Android, Kindle and every other platform), and digital media like CD-ROM and DVD.
“All forms and formats,” without more, may also be deemed include TV, movie and video rights, gaming rights, merchandising, and other derivative rights.
If the contract includes the phrase “now known or hereafter developed” (or any substantially similar phrase) the contract includes and incorporates technologies that haven’t been invented yet as well as those we know. Authors who signed publishing deals 20 years ago may find their app and e-book rights caught up in an antiquated deal – and many have encountered just that issue in recent years.
A simple rule of thumb: if a specific right isn’t addressed specifically in the contract, you may end up giving the right away, whether or not you intended to do so. Be sure your contract specifies who has the right to exploit subsidiary rights like TV, film, apps and gaming. Audiobooks should be addressed as well.
Expect your publisher to want a broad range of rights. As we’ve discussed before, the publisher’s investment in your work does justify a grant of the rights the publishing house can reasonably expect to use. That said, many publishers will accept contract revisions clarifying certain rights, especially when the publishing house doesn’t have a strong interest in apps, gaming and other visual media. If you can, try to negotiate and keep at least the app, gaming, film and TV rights. You may need to specify the difference between gaming apps (which you want to keep) and e-book or enhanced e-book apps (which the publisher will almost certainly desire), but reasonable clarifications are not uncommon and many publishers will work with authors to clarify these terms.
As with everything else in publishing and contracts, the keys are clarity and communication. Don’t assume a right belongs to you just because you don’t see it mentioned. Don’t assume the publisher will remember your conversation three years from now, and don’t ever think you can introduce e-mails or notes of telephone conversations as proof that a secondary agreement or understanding existed. Most contracts contain an “integration clause” that says the writing supersedes all other understandings.
Get it in writing, and in your contract, or you risk not getting it at all.
Have questions about this or other publishing law issues? Ask away in the comments or ask me on Twitter (@SusanSpann) using the #PubLaw hashtag!