Mark Terry

Monday, January 17, 2011

Book Contracts 101, Part 5 (Even More Subrights Clauses)

January 17, 2011
Today's post continues with clauses 1d, 1e, and 1f, which all deal with various subrights.

1d. Author agrees to the appointment of Publisher as Attorney-in-Fact, for purposes of execution of sub-rights contracts in the event Author fails to execute within 60 days any such agreements which require the Author's signature.

An interesting clause, isn't it? In case you didn't get it, it means that if the Publisher has a deal that requires your signature and for whatever reason you don't get around to it, they can sign for you. I also interpret this to mean that if you don't like the deal (and you already gave away the rights, so tough), tough luck, they'll sign for you. So be careful what you sign away.

1e. In the case of non-English language publication rights, sold by the Author or on behalf of the Author by his agent, Author agrees to share all amounts paid, net of agent's commission and expenses, 80% to Author -20% to Publisher.

Ahem. Again, we go back to standards and negotiations. This varies all the time and the 80/20 split is something my agent negotiated. Many agents (mine included) if they work regularly with foreign language agents and publishers, want to keep 100% of the foreign language rights. Publishers, of course, also want to keep 100% of the foreign language rights, although they'll make a split with the Author. In this case, my agent kept the rights, but anything we sell, 20% goes to the publisher. In this case of this contract, we haven't sold any yet. When I had contracts with Midnight Ink/Llewellyn, they were adamant on retaining the rights and providing (if I remember correctly) a 50/50 split. Llewellyn had a very aggressive foreign rights agent on staff and I think that worked out okay. Your mileage may vary. Keep in mind, too, for instance, The Devil's Pitchfork and The Serpent's Kiss both sold to French, German and Slovak publishers. Although none of the book advances were huge for those, each of those was about the same size as the advances I received from Midnight Ink. In essence, foreign language editions tripled the size of the advances I received on the book. It can add up.

1f. In the case of dramatic, including film, television, radio or other broadcasting rights, sold by the Author or on behalf of the Author by his agent, Author agrees to share all amounts paid, net of agent's commission and expenses, 90% to Author -10% to Publisher.

I do not believe this split is standard. Most agents try to hold on to 100% of the film rights. Publishers, naturally, try to get a 50/50 split or even better. Film rights are generally considered the big money deals, although that may be part mythology. Again, one has to wonder what the publisher is doing to deserve 50% of the film rights income. Let's say, for instance, you wrote a novel that has big film potential and it gets optioned by George Clooney's production company for $100,000. The publisher gets $50,000 of it. Then, let's say Clooney gets greenlighted for the film and it takes off and is made for $70,000,000 and makes worldwide, $800,000,000. Depending on how your film option contracts come out, you make $1,000,000 (just made up numbers). Which is awesome. And your publisher gets half of it. Why? Because you agreed to it. Publishers might argue that without their stamp of approval on a novel manuscript, no one would be interested in making a movie out of it. That may or may not be true. Legend has it that John Grisham's The Firm sold the film rights before the publisher came on board. So it's a hard call.

It's just something to think about. One way to think of rights is you start out with a whole pie. And each right you sell is a piece of the pie. You want to keep as much of the pie as you can, or at the very least, if you're selling (licensing) rights, you want to make sure you're getting something in return for what you're selling. Try not to give away big chunks of your pie without getting something in return. As you may have noticed, publishers have a tendency to want the whole pie so they can re-sell parts of it themselves and split the proceeds with you. You and your agent, or just you, may want or be able to sell pieces of that pie yourselves without having to share the profits with the publisher. You as a writer may argue (or believe, accurate or not) that you can't sell those parts of the pie yourself, you need the publisher to do it. That's something you might consider educating yourself on, especially if you don't have an agent.

Okay, because 2. is straightforward, I'll include it in today's post.

2. Term: The license herein granted shall be for the term of the United States copyright, and during any renewal or extension thereof. See clause 10 for termination of contract and reversion of rights.

Straightforward, as I said. Each country has different copyright laws, and this just lays out that discussion of copyright in the contract refers to U.S. copyright law, not France's, Russia's or whomever's.


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