Negotiating a Grant of Rights

Negotiating the “Grant of Rights” in a publishing contract can be difficult (and exasperating) for authors who don’t understand exactly what this section of the contract means. The grant of rights often encompasses more than a single paragraph in a publishing contract and we’ll be taking more than a single week to discuss it in this blog series.

In general terms, the “grant of rights” designates exactly which rights the author is licensing (or “granting”) to the publisher in the contract.

Contract language varies widely from publisher to publisher, and even from deal to deal, but over the next few weeks, my Wednesday posts will look at how to negotiate an equitable grant of rights. Understand, as always, that this series presumes the negotiation involves a legitimate, traditional publisher – the rules differ when that scenario changes.

Negotiating the Primary Rights.

The “primary rights” are the rights the publisher needs to publish your work in the form or formats contained in the offer.

 

Generally speaking, the primary rights in a publishing contract break down into four categories:

1. Print/ebook formats

2. Serial and related rights

3. Territorial rights

4. Translation rights

Some of these are negotiable, others are not. Whether or not these rights are negotiable depends largely on the publisher’s business practices. We’ll look at the first two this week, and the other two in next week’s post.

However, there are some guidelines that tend to hold with regard to negotiating primary rights:

1. Publishers are extremely unlikely to change the original offer in terms of forms and formats. Most standard “grants of rights” include both print and ebook (and, increasingly, enhanced ebook) rights. This isn’t normally negotiable. Publishers of print books typically produce ebooks also, and generally refuse to allow an author to keep ebook rights in a print book deal. Most publishers offering “ebook only” contracts also want at least an option on the print rights, in case sales justify a print edition.

2. You generally can’t negotiate retention of format rights, but you may be able to get a clause reverting them to you if the publisher doesn’t use them within a stated period. If the publisher wants “all print and ebook formats,” it’s worth asking if they will revert unused formats on the author’s request in a stated number of years. Expect the number of years to be somewhere between 2 and 5 – publishers need time to see if a book will take off.

3. Publishers normally want serial rights (the right to publish your work in serial format rather than in a single volume), even though most publishers don’t do this unless they tell you in advance. Serial rights are generally non-negotiable, because the publisher doesn’t want you contracting these rights elsewhere, and letting another publisher “steal a march” with serial publication. This usually isn’t a negotiable term, but understand: the publisher wants to profit, too, and exercising serial rights isn’t usually as profitable as publishing print and ebook.

A word about “Enhanced Ebooks.”

“Enhanced ebooks” are ebooks which include other forms of media—for example, video clips, interactive maps, soundtracks and audio extras. They’re not too common now but may become more popular in years to come, and many publishers have started including language governing them now.

Note: Contracts granting publishers “all forms & formats, now known & hereafter developed” include enhanced ebooks unless carved out.

When negotiating your contract, you may want to request a carveout for enhanced ebook rights. Most traditional publishers won’t create these in-house, which makes enhanced ebooks a separately licensable right, like audiobooks. However, many publishers will want to keep these rights, if only because the enhanced versions might impact traditional ebook sales.

It’s not unfair, or unreasonable, to grant the publisher enhanced ebook rights (you’ll still get royalties on any sales). Until a significant market for enhanced ebooks exists, it’s foolish to make this the stumbling block to a contract. However, it’s important to know about enhanced ebooks (and all other rights), and to keep an eye on the market.

Attitude is a critical part of contract negotiations.

The first rule in publishing is “don’t be a jerk” (yes, it’s a corollary of Wheaton’s Law) and that applies doubly to contract negotiations. Publishers are far more likely to negotiate (or explain the reasons for a refusal) if authors behave with polite professionalism.

Many times, authors have experienced so much rejection by the time they get a contract that they see the publishing world as “against me.” Authors must set emotion aside, and behave as polite professionals during the contract negotiation. Remember: write with emotion, and run the business with the logical side of the brain.

I hope you’ll join me next week, when we look at territorial rights and translation rights! In the meantime, if you have any legal or business-related publishing question, feel free to ask in the comments!