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A Guide to Writers' Rights in the New Millennium

The incredible growth of electronic communication and the rise of the e-publishing industry over the last few years are altering the way books get published. Attorney and author Howard Zaharoff offers tips on negotiating your next book publishing contract with specific regards to electronic rights.

The Digital Age is a) a terrible threat to writers, b) a great opportunity for writers or c) a threat to writers who ignore new technologies and developments, but an opportunity for writers who respond flexibly to changing technologies and publishing models. This author/lawyer chooses c). Let me help make that your choice, too.

The Ideal Millennial Contract
To maintain flexibility and independence, writers must understand, and extract maximum value from, their rights.

They should do so by following these easy-to-state but tough-to-implement rules:

  • Use written contracts that protect their interests—or at least confirm their understanding of important terms by letter or e-mail;
  • Avoid granting rights their publishers can't readily exploit;
  • Grant short-term rights, especially for electronic and new media uses;
  • Maximize compensation for the rights granted; and
  • Require the publisher to exercise these rights, for example, adopting a "use it or lose it" approach.

New Medium: Electronic Books
In the new millennium, more and more people will read books using lightweight, hand-held devices (called readers) such as the Rocket eBook and Softbook. E-books should drive up profits; but writers who aren't alert could get taken for a ride.

Ever wonder why you write the book, but keep a paltry 5-20% of the list price, while your publisher keeps a generous 95-80%? Basically, it's because of the historically high cost of publishing: paper, ink, printing, binding, storing, shipping and returns account for a sizeable chunk of that $25 list price (not to mention that most chains and resellers get discounts of 40-60%).

But with e-books, publishers avoid most of these expenses. So shouldn't the author's share be higher, more like the split in licensing deals where, with a few exceptions (such as first serial rights), authors and publishers divide third-party payments equally? Though publishers argue that the savings on e-books are not as great as they appear—after all, publishers now bear the costs of formatting for each device, upgrading files and equipment for system changes, and encryption and security—they certainly seem significant.

So, in your next book publishing contract be sure to address electronic uses, especially e-books. You should:

  • Resist granting electronic rights;
  • Grant them for a short time, or reserve the right to terminate the grant after a short time (say, two to four years);
  • Reserve the right to terminate if your publisher hasn't exploited these rights after a reasonable time; and
  • Demand at least 50% of the fees received from licensing electronic rights, including fees received for e-book distribution. If you can't get that much, do the best you can while reserving the right to renegotiate to market standard rates after a short time.

How should you handle this under existing contracts? There's no way to answer that without examining the specific terms of your contract. But here are a few tips.

If neither e-book rights, electronic rights generally nor "all rights" are specifically granted to the publisher, you almost surely have reserved the electronic rights. If e-books aren't specifically mentioned in your contract (as they aren't in most), but you did grant "electronic rights" or even "all rights in future technologies, whether now existing or later developed," then you may have room to negotiate. Indeed, even if the contract covers "rights in future technologies," if it was entered into before 1997, there's a good argument that no one had e-books in mind and thus the issue is open. In short, if the issue matters to you, in most cases it will be worth a serious talk with your publisher.

New System: On-Demand Publishing
A book publishing contract embodies the following basic deal: As long as the publisher produces your book, keeps it available for buyers and pays you your due, you cannot publish or allow others to publish the book, any derivative or (in most cases) any competitive work. In other words, you can terminate the contract and retrieve your rights only if your publisher fails to publish your book or having published it, fails to keep it in print.

Publishing contracts tend to take a narrow view of when a book is out of print. In many contracts, a book is not out of print unless it is completely unavailable in any language and the publisher fails to make it available within six months of a written demand from the author. Still, even under such restrictive clauses, books will often go out of print.

But now consider the impact of print-on-demand technology. Your book will always be available. No lost sales, no disappointed fans, no need to search for another publisher to get your work back in print. However, this creates a world where your publisher may not be marketing your book in any way, where no one is buying it and where you still can't get the rights back because in theory it remains "available" to interested purchasers.

In future contracts, ask the publisher to agree that your book is out of print if it is not available to US customers in English in a print edition through ordinary commercial channels or if your publisher fails to promote your book reasonably, at least by including it in all relevant catalogs and listings. You might also try to deem your book out of print if the publisher fails to meet minimum sales or revenue targets, such as failing to sell 50 copies or pay you at least $150 from book sales in two consecutive semiannual reporting period.

A caveat: Savvy publishing lawyers and agents have been asking for these minimums for years, and few publishers give them. So your time might be better spent extracting your publisher's promise to cooperate with your own efforts at sales and marketing.

What's Ahead?
As I said in the beginning, this new era poses a threat to writers who ignore new technologies and developments, but an opportunity for those who are flexible. Writers who appreciate that technology is evolving quickly and that to survive (and occasionally flourish) writers must seek new outlets, models and methods to market, sell and extract value from their work, will find ways to increase their independence and checking accounts.

Howard G. Zaharoff is an attorney with Morse, Barnes-Brown & Pendleton. His articles have appeared in Folio:, The Boston Globe and Amazing Stories.

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