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CMAP #3: What Authors sell to Publishers

I'd like to tackle two common misconceptions about publishing in this piece. Firstly, a lot of people who should know better — business journalists covering the publishing industry, for example — seem to think that authors sell the copyright on their books to their publishers. And secondly, a lot of readers think that if a book is available in print in the English language in, say, the United States, they ought to be able to buy it anywhere in the world. This might be true in a practical sense, but in a legal context it's anything but — and with more and more ebook readers trying to buy titles internationally and running slap-bang into software-enforced geographical blockades, it's time to explain why.

Unfortunately I'm not a lawyer. I'm going to invite a couple of folks with law degrees who specialise in intellectual property law to kick the tyres on this post, but it may still contain inaccuracies — if you're selling a book of your own you must not rely on me for legal advice because I'm not qualified to give it. Also? It's incomplete, and merely represents a worm's eye view of book contracts from the perspective of an author of commercially published genre fiction.

(And it's so damn long that I didn't want to clog the front page of my blog up with it. So to continue reading it click the link below ...)

If you live in a country that has signed (and enacted laws compliant with) an international treaty known as the Berne Convention for the Protection of Literary and Artistic Works of 1886 (as subsequently amended and updated, right on through to its current successor, the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights) — which is to say, almost everywhere — then, when you write, by the very act of writing, you acquire certain legal rights to your work.

The rights you have can be loosely divided into Moral Rights and Copyright. (Clarification: the French legal tradition of droit d'auteur originally provided for "proprietary rights" and "moral rights"; the English common law tradition of Copyright only provided the equivalent of proprietary rights. With the convention, you get both.)

Your Moral rights are, broadly, the right to be attributed as the author of your own work, the right to publish your own work pseudonymously or anonymously, and the right to the integrity of the work — barring the work from alteration, distortion, or mutilation. Even if you have assigned the proprietary rights in the work to a third party these moral rights may persist.

As for Copyright, you own (for your own work) the exclusive right to copy, adapt, and distribute the work, for a period which in the English-speaking nations is currently set at your life, plus 70 years.

(Note: At this point I want to stress that I am describing the system by which authors are remunerated as it exists, not as I think it should be. I can already sense the thunderous rattle of a million knees jerking in the near distance. If you're about to post a comment critiquing this arrangement, or copyright law in general, you may as well stop right now because I will delete it on sight. I want to keep the comments on this posting for discussion of book contracts and their implications, not ideology. If you want an ideology chat, I'll set up another posting.)

How authors exploit their moral rights and copyright to earn a living depends on the sector in which the author works.

Technical authors are typically employees or contractors working for a company under a contract that defines their activities as Work For Hire. Under many countries' copyright law, there is an exception to the general rule ("if you wrote it, you own it") for material prepared at the direction of someone else; the employer, not the employee, is considered the copyright owner. (In other jurisdictions this may be termed corporate copyright.) Note that technical writers still have moral rights — the right to have their name associated with their writing — because moral rights are inalienable ... but the copyright belongs to someone else.

To someone in my line of work — writing commercial fiction — the idea of selling my output on a work-for-hire basis is anathema. It's fairly easy to predict the print run and profitability of a technical manual for a sewing machine or a car; they're both entirely dependent on the success of the underlying product. But if a fiction writer sells their copyright, and the publisher licenses the media sub-rights and there's a successful motion picture or TV series or dessert topping based upon it, the author of work-for-hire is out in the cold. They've relinquished all claim to a cut in the proceeds of their work. So commercial writers try not to do that.

When you "sell your novel" to a major publisher (or even a small one), what you are actually selling is the right to reproduce the work in a variety of specified formats in the English language in certain designated territories for a specified duration. In return for signing the ten-to-fifteen page contract, you receive royalties, which may vary depending on the format and the volume of sales, usually based on the publisher's net receipts from the work. You may also receive an advance against royalties: this is effectively a loan against the anticipated value of your future royalty earnings.

Note that sensible authors do not negotiate contracts themselves, unless they have a day job as an intellectual property lawyer; they go through a literary agent. Literary agents have a lot more experience of contractual negotiations in publishing than any author, usually have a contract lawyer on tap, and their relationship with the author is a symbiotic one: that is, they take a percentage of the author's cut, so they have a vested interest in maximizing the author's income. (SF author Tobias Buckell's survey suggests that agented first novels receive advances that are on average nearly twice the size of unagented novels; the literary agent's cut is typically 15%. This is one of the reasons why authors use agents.)

What goes into a book contract?

I am going to do something that will cause traditionalist publishing professionals to wince, and pull a contract out of the filing cabinet. It's with a large American publisher and it's some years old, and I'm going to withhold the publisher's name, the book title, and the actual amount of money in it ... but discuss the rest in mind-numbing detail.

The contract consists of ten US Legal pages of fairly dense typescript, some of it with strikethrough (thanks to my agent's kind habit of going through the first draft to arrive from the publisher's legal department with fire and the sword a red pen).

Note that unlike many authors I sell North American (US and a list of associated territories including the Philippine Republic and Puerto Rico) rights to a different publisher from other English Language rights — UK and commonwealth rights go to a British publisher. This complicates things no end, so there are two extra pages consisting of a list of countries that the US publisher has a non-exclusive right to publish the work in — meaning that they're competing with other publishers if they want to sell English editions in places like Burma, Fiji, and Zambia.

The first chunk of the contract specifies the parties to the contract, the works to which the contract applies (two novels), and then the Author's Grant of rights.

The Author's Grant specifies that, during the full term of copyright and renewals (or until termination of the contract — there are termination clauses later on) I am selling the publisher the exclusive right to publish and sell the work, in whole or in part, in the English language, in [list of territories]. This part of the contract runs to ten clauses of dense legalese and includes formats in which the work may be published, including things like large type editions, newspaper serialisation, microfilm, ebook, and so on. (There's also a struck-out-by-agent land grab for audio book rights, motion picture and TV rights, games, and stuffed toys. This is the other good reason why smart authors employ agents; a draft publishing contract is inevitably full of little whoopee cushions inserted by the publisher's lawyers and intended to separate the author from control over the fruits of their labour.)

(Digression: yes, I did say "ebook rights" in the same context as "exclusive territorial rights". My UK publisher has the exclusive right to sell ebooks in the UK and associated territory, and my US publisher has ditto in their regions. This is why, as often as not, if you go to somewhere like Fictionwise or Diesel and try to buy an ebook edition of one of my books, it'll let you get as far as proffering payment then tell you to sod off because you live in the wrong country. This is stupid, sucky, and serves nobody's best interest (not even the publishers), but as I mentioned in the first of these posts, group-wide policy on e-rights is set by executives so high up the totem pole they can't even see the ground, much less the realities of ebook publishing. Discussion of how things should be arranged, as opposed to how they are arranged, is deferred for another posting. Digression over.)

Moving swiftly on to clause two:

The second chunk of the contract specifies a bunch of contractual representations, warranties, and indemnities: notably, that I wrote the books, that they're all my own work and I didn't steal any of it, that it hasn't previously been published by someone else and that I have the right to sell the rights in chunk one.

I also basically reassure them that the work isn't libelous, doesn't infringe copyright, isn't illegal in any way, doesn't contain instructions likely to kill the user if they follow them (see also: "The Anarchist's Cookbook"), and that anything stated as fact is based on my careful investigation or research for accuracy. Oh, and if anyone sues the publisher I'm required to cooperate with their defense [see also: lots of provisions for allocating blame/splitting costs if someone sues us].

The third chunk is about deliverables and dates. It sets out precisely when, to the nearest day, I am required to hand over each manuscript; the format the manuscript is to be provided in: and so on. If I fail to deliver on time, the publisher can terminate the contract and require me to repay the advance. If the manuscript is crap, there are provisions for the editor to tell me to fix it, then a strict time period within which it must be fixed: again, if it's not fixed on time and to spec, the publisher can terminate the contract. Oh, and I'm not allowed to tinker with the rejected novel and sell it elsewhere for 12 months after this date — I have to give the publisher a chance to decide whether or not they want to buy it.

There's other stuff, too: I'm required to read, revise, correct and return proofs and copy edits promptly, and if I vomit red ink on the page proofs I may have to pay a contribution towards the additional typesetting costs (unless the editors agree it was justifiable).

Note that the dates in the third chunk of the contract are enforced flexibly and with discretion by any sane publisher; they know damn well that authors are sometimes late. A publisher who sacked every author who was ever late would rapidly run out of authors! Nevertheless, if I'm late in handing in a book, I'm relying on my publisher's goodwill. Food for thought.

The fourth chunk is about publication dates and binds the publisher's hands, much as the third chunk binds the author's hands. The publisher is required to publish the book within 24 months of the date of acceptance of each book. There are a handful of loopholes (for lawsuits, labor disputes, or government intervention), but if they don't publish within 24 months I can yell at them in writing: they then have six months to publish, and if they can't manage that, I get to terminate the agreement, take my rights back, and keep the advance.

Other stuff: the publisher isn't obligated to publish the work in all the editions to which they have publication rights. And there's boilerplate about what to do if the final manuscript is legally questionable.

The fifth chunk: this is the one close to my heart, because it talks about money.

First, it sets out an advance. 50% of the advance is payable on execution of the contract; 25% upon publication of the first book; and the remaining 25% upon publication of the second book.

Next, it sets up royalties. Trade hardcovers pay royalties based on a percentage cut of publisher's suggested retail price through normal channels. Credited returns (books returned unsold by shops) are deducted from the count of copies sold, and "a reasonable reserve for estimated returns" is withheld — that is, if the publisher ships 1000 hardbacks and they know from experience that 20% will be returned for credit, they must release the royalties due on 800 hardbacks, but may hold back 20% for two accounting periods of 3 months each against the anticipated returns. (If the returns don't show up, the reserve against returns must then be released for payment to the author.)

There's an escalator on royalties. I get 10% on the first 5000 copies of each book, 12.5% on the next 5000 copies, and 15% on all copies of each book sold thereafter.

(In reality, neither of these books sold at the 15% rate; they both nudged into 12.5%.)

Next, there are a whole bunch of accounting provisions for different channels — wholesale distributors, jobbers, or booksellers. If the discount for a channel is over 50% off SRP, "the publisher shall pay to the author the prevailing royalty rate above less one half the difference between a 44% discount and the discount granted (it being understood that in no event shall the amount paid to the author be less than one half the prevailing royalty rate [detailed above]". In other words, steeply discounted books pay a correspondingly smaller royalty, but never less than 5%. Most likely a hardcover won't be steeply discounted unless it goes bestseller, in which case it's cranking on the 15% royalty rate; so the floor on hardback royalties is more realistically 7.5%.

Copies sold via radio or TV solicitation or direct mail or coupon advertising pay 5% of the actual selling price, incidentally. And there is a 10% of SRP or royalty equal to the initial royalty rate (whichever is lower) on all copies sold from a reprinting of 2500 copies or less made within two years of publication. And, and, and.

(Forget spreadsheets: trying to do cash flow projections based on the royalty schedule in this contract really demands an expert system. These contracts would be easier to understand if they were written in Lisp or ML ...)

Royalties on mass market paperback editions are set at 8% on the first 150,000 copies of each book, and 10% thereafter, or 5% on copies sold at a discount of more than 55% off SRP.

(In reality, neither book came anywhere near to 150,000 in mass market. Most midlist SF/F books in the US sell 15,000-35,000 in mass market.)

Trade paperbacks: the author gets 7.5% of SRP (subject to the aforementioned confusing smoke and mirrors about discount rates).

Royalties for "other editions" — this includes ebooks: the author gets 15% of the SRP on all copies sold. (Note that this contract predates current norms on ebook publishing in which I could expect 20% or even 25% on ebooks.)

Next there's a chunk on who gets what if the publisher sublicenses some of the rights they've bought.

Publishers, as a licensee of the author's rights, can farm them out to other publishers such as book clubs, or for anthology excerpts, or in abridged publication (in the unlikely event "Reader's Digest" wanted to publish a Stross novel). They have a sub-rights department, in which clerical staff who manage their contract portfolio try to identify rights that they can sell to other publishers. If they do this, I generally get 50% of the proceeds of this additional sale. This is the third reason why smart authors use literary agents: my agent only takes a 20% cut for sub-rights sales, but they're on commission (unlike the publisher's clerical staff) which provides them with a strong motive for getting out and selling.

(Note: Publishers try to buy all the rights that are available. Smart authors hold back as much as possible and get their agents to parcel them up and sell them on their behalf. It would have been easy for me to have sold the translation rights to these two novels as part of the package with my American publisher — and they might have given me an extra 20% on the book advance. But by holding back the translation rights and selling them piecemeal over several years, these two books have earned me almost as much revenue from translated editions as the entire US advance.)

No royalties: there's a waiver of royalties for: review and promotional copies, books destroyed prior to sale, sale of copies at below manufacturing cost ... and publication in Braille or by audio recording for the blind and other physically handicapped persons.

There now follows an entire page specifying accounting arrangements for the preceding two US Legal pages of mind-numbing percentages. The publisher is required to provide semiannual statements in accordance with regular accounting practice. There's a strict timetable for these. At each statement period, royalties must be paid to the author (or their agent), unless less than $10 has accrued (in which case it can be carried over).

The author has the right to examine the publisher's written records on serving written notice; if there are errors amounting to 5% or more of the total sum paid to the author during the period under question, the publisher foots the auditor's bill.

Other chunks: A bunch of other clauses now follow, setting out terms ...

Copyright. The publisher shall print a proper copyright page in each edition of the work, saying who wrote it. They'll also lodge a formal copyright claim for United States copyright and lodge copies with the Library of Congress. I guess that's a pro-forma acknowledgement of my moral rights.

Infringement. If the copyright of the work is infringed, both the author and the publisher have the right to go after the infringer with a pointy stick (although normally only one of them would bother).

Author's property. The publisher is not responsible for loss or damage to the author's property (such as the original manuscript or proofs). This is less meaningful today than it was in the era before photocopiers and laser printers.

Author's copies. The author shall be crushed to death beneath a crate of hardcovers of their own immortal work. The author may buy additional copies at a 40% discount and zero royalty rate. (Smart authors arrange with their local specialist bookstore to buy a carton and split the discount while still trousering the royalties.)

Contracts with others. The publisher shall keep the author duly informed if they sub-license any of the rights for an amount likely to exceed $500.

Use of author's name and likeness. In which it is agreed that the publisher may use that drunken nude centerfold shot of yr. humbl. crspndnt. as the centerpiece of an advertising campaign. (Okay, only kidding: it says "approved likeness" in boldface in the contract.)

Motion picture/TV tie-ins. If the author sells film or TV rights, he promises to do his best to ensure that the publisher has the right to use the film or TV production's name and stills to promote the book. (This is a no-brainer. "What, you don't want to shift an extra quarter million copies of your book in paperback?")

No competing work. The author agrees not to publish stuff based on these novels that is likely to injure its sales prospects. (Prequels or sequels don't count.)

Out of print provisions. WAKE UP! Buried in the small print on page 8 is a landmine! If one or more books falls out of print, and after written notice from the author the publisher fails to put them back into print, the author can issue a notice to terminate the agreement and grab the rights back. (The definition of "out of print" is: the book is not out of print so long as it's under contract for publication or on sale through normal wholesale/retail channels in any full-length edition. Print On Demand or ebook editions do not qualify as being "in print" unless there are total sales of 300 copies per year.)

Comment: This is important because if a publisher craps out and stops printing a book, I may need to claw my rights back and re-sell the book elsewhere. I'll get less money for a reprint (a lot less), but at least I'll be in control of it again.

You can go back to sleep now ...

Termination by publisher. If it ain't selling, the publisher can give up and terminate the contract.

Bankruptcy and liquidation. I can get my rights back if the publisher goes bust. (Important: agents, or smart authors, always make sure there's a clause to this effect in the contract.)

Rights on termination. If sub-rights have been sold, terminating a book contract can be slightly messy and take a while to clean up. The publisher has a grace period to dispose of any remaining stock, and the publisher may continue to participate in sub-licensed rights transactions until they, too, terminate. On the other hand, the author may not re-sell the reverted rights immediately; the publisher has an exclusive period of 60 days to try and convince the author to sell the rights back to them before the author can go elsewhere.

Option on next work. (This is an important one.) The publisher gets an exclusive option on the author's next work. The author has to submit it to the publisher before anyone else, and the publisher has 30 days to decide if they want to publish it. If they don't, the author is off the hook. If they do, "the parties shall negotiate in good faith with respect to the terms of an agreement to publish such work".

Publishers want to buy author careers, not individual books. This clause is to force the author to send the next book to them, rather than shop it around or auction it elsewhere. It's not bulletproof — no publisher can stop an author who is out of contractual lock-in from going elsewhere if they really want to — but it's a clear declaration of intent.

Reservation of rights to author. All rights not explicitly granted to the publisher remain with the author.

... And we're done! Just another two pages of legal boilerplate defining stuff like 'definition of "Author"' or "severability" (if a court rules that provisions of the contract are invalid or unenforceable), and some afterthoughts (if the author sells TV or movie rights, the publisher will allow the TV or movie studio to use extracts of up to 10,000 words for promotional purposes subject to certain provisions), and then we get to the signatures.

I haven't run the contract through a word count, but I suspect it's at least three times as long as this blog entry (3842 words). It's certainly much longer than the deed of sale for the apartment I live in ...

108 Comments

1:

The USA basically doesn't have "moral rights", as I understand it -- it claims that other provisions, like protections against libel, act as sufficient protection for moral rights (i.e. if it is a fact that I wrote something I have the right to tell the press about it and defend myself from false accusations that I did not) but doesn't really proactively defend moral rights except in a few specific carved-out situations.

Which is to say that there are plenty of times, in the USA, when someone -- especially in a work-for-hire situation -- can write something and receive no public attribution for the work (the work is distributed without any byline saying "X Wrote This") and no ability to "protect" the work from being altered/mutilated/distorted.

There are standards preventing, say, Hollywood studios doing this with screenplays, but these are contractual standards that the WGA or other unions/guilds have to fight for on an individual negotiation basis rather than being a fundamental statutory protection, and there have been plenty of complaints about people who fit the definition of a "writer" in the TV industry who fall outside the WGA's bailiwick and therefore routinely have their work sold without direct attribution and altered without their permission.

That's my understanding of the situation, anyway; this isn't an "ideology" comment, since I don't particularly agree with either formulation of rights, just noting that in practice the plain meaning of the Berne Convention isn't followed by American copyright law in general. One could certainly argue that, for consistency's sake, the USA *should*, but there are plenty of stories out there of how the USA *doesn't*.

2:

A very interesting look at a publishing contract.

One small note, after the Fourth Chunk section, it jumps into italics for the rest of the article.

3:

Some day, if you ever sell movie or TV rights to someone, you should compare the, let's call it tone, of the initial proposed contract with your publisher's initial proposed contract.

If you've already seen one, I suspect you know what I'm alluding to.

4:

Fixed ...

Sean: I have sold a movie/TV option on a novel. The option contract is merely an undertaking not to sell the rights to the work elsewhere while the purchasers try to find funding to take it forward towards production.

If contracts were fish, then the contract on my house would be an ornamental carp, the book contract would be a bluefin tuna, and the option contract would be an angry great white shark.

5:

Minor nit: "right on through to it's current successor" should be "right on through to its current successor".

6:

The major complaint from ebook readers isn't only that they can't buy the US version from the UK (say) but also that the UK publisher has not released an ebook. The reason it is usually this way round is that US publishers have in the past produced more ebooks. Based on the contract you describe, the publisher has an absolute right not to publish an ebook for the life of the copyright. This is presumably based on the idea that some editions are more important than others, which is dangerous because more and more readers are exclusively buying ebooks.

7:

Alan, in 2009 ebook sales rose by 50% on the year before ... to almost 3% of sales by volume.

I'm sure the publishers will get the message eventually. In the meantime? This is not the thread for discussing What Should Be, as opposed to What Is.

8:

Typo: copyrights are actually called "droit d'auteur" in French.

9:

"This is not the thread for discussing What Should Be, as opposed to What Is."

Hummm... then what's the point of discussion? Might as well close the comments on this one, eh? ;-)

"What Is" on my end is that I have no practical way to legally get my hands on one of your books (full list of problems is in a comment on another post - mainly consists of living in a bumhole of a country and having no way to use my VISA to pay for an ebook edition even where it exists), yet you have thoroughly hooked me with Accelerando.

In practice, this further means that I have read nearly all of your published works in some (electronic) form, and paid you not a cent, despite being very willing to do so (have a "reimbursement hitlist" with you, Egan, Watts and a couple of others on it). So that's "What Is" on this side of the discussion.

Another "What Is" is that the bloody pirates are bloody slow on handling Revolution Business and that's just bloody killing me, but there is !@#$ all I can do about it.

10:

Sebastian, I promise you a thread on "how the ebook market is borked, and what to do about it" later.

11:

I am curious if anyone here knows, or might point to an article on same: How does all of this change if an author is writing in somebody else's chunk of intellectual property?

For example, say an author is solicited to write a Star Wars novel. Would this fall under the "Work for Hire" umbrella? And if so, how much help would an agent be in negotiating with a publisher that, in all likelihood, already has some pretty strong guidelines in place for reimbursing its authors?

12:

So are the rights for a specific non-english speaking country like e.g. Sweden different for paper books and ebooks? And what are the rights for Sweden? Because if US and UK publishers had non-exclusive rights for selling ebooks to Sweden I should be able to buy them.

Am I correct in assuming that when Amazon UK or Amazon US sells me a paper book they use the right to sell in UK and US respectively?

13:

It is worth noting that the advance isn't entirely a loan in that if the author delivers the book, he can't be forced to give any back if the book doesn't earn enough royalties to cover it. This is a hugely important way in which the publisher removes financial risk from the author.

I personally benefited from the fourth chunk. Many years ago, I wrote a book on MacForth. Never heard of MacForth? That's no surprise. At some point after providing me with a beta copy of the software and me spending the time it took to write a 500 page technical book, the software makers decided there was no market, rendering my book entirely pointless. Despite that, I got paid for my labor. Given that at the time I was a poor college student and that advance represented about a third of my income that year, this was a big deal to me.

In the end, I wrote four books and never had one earn out its advance. Perhaps this was due to my failures as a writer, but I think some of it was due to issues beyond control. (Forth not lighting the computing world on fire. The publisher stamping "Covers Turbo C 1.5" in big letters on the cover a few months before 2.0 came out.) Because of the way the advance system works, I was able to make enough income at it in order to keep going.

I guess that this is my way of saying that as screwed up as the industry is, it does give authors certain advantages. (It is also interesting to compare this to the horrendous deal that recording artists get, where things like marketing get taken out of their advances.)

I wonder if the "Moral Rights" bit is different in the states. I did some work for hire stuff way back when and never got any credit (nor did I expect any.) I am now a manager hiring tech writers and the issue of credit never even comes up.

14:
Am I correct in assuming that when Amazon UK or Amazon US sells me a paper book they use the right to sell in UK and US respectively?

Yes, because the point of sale for mailorder is the location the package was dispatched from, not the destination.

15:

I wonder if the "Moral Rights" bit is different in the states. I did some work for hire stuff way back when and never got any credit (nor did I expect any.) I am now a manager hiring tech writers and the issue of credit never even comes up.

As I said in my little screed above, yeah, it is. The US claims that there are other laws that cover the spirit of the Berne Convention's stance on moral rights, like your ability to sue a former employer under unfair competition statutes for attributing your work in a way that directly, negatively and unfairly impacts your career.

Note, though, that this is a much narrower protection than actual moral rights and is basically orthogonal to what moral rights are about -- in other words, the USA doesn't really respect moral rights despite being a signatory to the convention, and gets away with it because it's an 800-pound gorilla (as is the case with many other conventions to which the USA is a signatory).

16:

David Earle @11;

My understanding is that such authors still retain copyright. However, they are entering into a deal that allows them to use material that would be held to be the intellectual property of the commissioning rights-holder.

For instance, if I wrote and tried to sell an unauthorised Star Wars novel, I'd very likely be sued for passing off and trade mark infringement, and maybe copyright infringement (the extent to which, and the manner by which, characters and plot situations can be protected varies from country to country.)

If Lucasfilm hire me to write such a novel, then I have their permission to use those elements in my work. The result would have copyright belonging to me, but with bits of Lucasfilm's IP effectively embedded in it.

I would imagine the contract would clearly limit my rights to reuse or adapt that material; Lucasfilm is hardly going to let me sell film rights!

17:

Unless you mean Stross-themed PV arrays, you probably wanted a double 's' in 'desert topping'.

18:

Charlie - to solve the problem of people who want to pay you for your books but can't - do you have a PayPal tip jar link up anywhere? I read Accelerando on your site, I don't want a paper copy because STUFF IS A CURSE, but bunging you a couple of quid for a jolly good book seems the right thing to do.

19:

Other stuff: the publisher isn't obligated to publish the work in all the editions to which they have publication rights.

Is there some specification as to which editions the publisher is obligated to publish? They can't fulfill their contract by publishing a Philippines-only audiobook, say?

20:

As Charlie will no doubt get around to saying: read "why there is no tipjar", for the answer to this one.

21:

How much cooperation with this framework do you feel is reasonable to expect from readers?

At what (if any) point would you feel it's acceptable to hoist the jolly roger?

22:

Tommy: I'll talk about translation rights sales and English/foreign rights sales later.

23:

David Gerard: Read the FAQ: Why there is no tipjar.

Micah @19: Is there some specification as to which editions the publisher is obligated to publish? They can't fulfill their contract by publishing a Philippines-only audiobook, say?

They could, but they'd be bloody stupid to do so (and they'd make a stonking great financial loss).

Michael Kirkland @21: That is a huge can of worms and I am not going to discuss it in a public forum. (If nothing else, doing so might put me in breach of other contracts I have signed. Also: it might give my publishers cause to Stop Buying My Books. Like I said in an earlier CMAP posting, that 97% pay cut is looking real tasty. Not.)

25:

This is probably pre-empting Charlie's next post, but think of the national limitations of e-book sales from the publisher's point of view.

Publisher A has the UK rights to a book, Publisher B has the US rights. Right now, US customers can get on to Amazon.co.uk and buy from Publisher A if they really want to, and UK customers can go .com to buy from Publisher B. But the level of traffic is probably pretty small, it might not be all one-way, and it's all at a remove from the publishers. It's not worth the hassle involved to try to force Amazon to stop selling across territories.

But if one territory sets up an ebookshop and another doesn't... the traffic would be all one way, so one publisher's ebook sales would be cannibalising the other's paper sales. The losing publisher would have motivation to take it to the courts, and would have a reasonably easy time demonstrating that the ebookseller was not taking due care to avoid infringing on the other publisher's duly assigned rights. Selling into someone else's territory just isn't worth it - you pick up a few dollars in sales, and you leave yourself open for lawsuits.

I can't see this continuing if ebooks become a reasonable fraction of sales, but right now there's not enough money involved to force publishers to find a solution.

26:

My favorite desert topping is sand -- which book is that one adapted from?

Kidding aside, I'm loving this series of posts. I'm a little amazed how little I know about this industry to which I have probably given well over half of my lifetime entertainment dollar, and it's been cool to see more about how it works from the creator's POV. I'm looking forward to seeing further posts in this series.

27:

@Charlie - of course, it's obvious in retrospect. I shall just have to buy a copy for a library or something!

28:

@Charlie #23:

I can understand your predicament, and I thought as much. I thought it was worth seeing if you could any, as you'd likely be the high water mark of reasonableness within the publisherosphere.

@Ray #25

I can certainly see it from the publisher's perspective, but there does need to be some point where readers can reasonably say "ok, work it out amongst yourselves" and sail off into the high seas until they do.

The point they actually do will, of course, vary widely among individuals.

29:

Thank you for giving me an interesting insight into publication rights.

After reading your entry (and explanations), the contract seems quite sane to me (though I hate to admit it, given that the contract is that long - and exempting the ebook sales, where the contract is clearly out of date in a very hard to fix way).

30:

Arne: exempting the ebook sales, where the contract is clearly out of date in a very hard to fix way).

It's much, MUCH worse than you realize.

A lot of publishers have the rights to back-list books going back decades. In many cases the authors are dead, and the rights are handled by the executors of their literary estate, many of whom have less understanding of the publishing industry than my pet cat (the stupid one). Contracts prior to the turn of the millennium rarely or never contain ebook provisions, however brain-dead.

For a publisher to effectively do ebooks properly, they must do two things: (a) regularize their new contract boilerplate going forward, and (b) contact the existing rights holders and negotiate amendments to existing contracts.

For Tor, this would mean updating roughly 3000 contracts per decade for the past couple of decades, in some cases (25%? I dunno) having to negotiate with outsiders who have wildly unrealistic expectations of the money they can expect, or of how publishers do business.

And this is without even thinking about turning to the festering can of worms which is the trans-Atlantic rights split (and which serves the interests of authors and agents very well in the short term, I'll have you know, so they're probably going to welcome any proposal to amend it with a shotgun).

31:

Is it in any sense possible that the trans-Atlantic rights split might become a three-way split (ie UK/US/eBook) with a separate sale of global eBook rights?

32:

Not in the immediate future, because high-ups in the respective publishing conglomerates (remember the first of these essays?) make acquiring ebook rights a deal-killer for all new acquisitions; if you won't acquire them, you can't sell the book.

(NB: I do not know how Cory Doctorow is currently managing -- Macmillan have got a whole lot tougher on this in the past few months. Might be worth asking him.)

The sane solution (for values of "sane" that mean "compatible with the current dog's dinner that is licensing, with minimal change") would be for both publishers to acknowledge their respective territories as non-exclusive, or for them to do some sort of rights split (i.e. the US publisher could sell into the UK market but would pay the UK publisher some money on each copy sold, and vice versa).

But nobody is going to bother opening that can of worms until there is some incentive to do so, i.e. ebook sales are worth something. As I am informed that around 1000 sales in a month will put you in the #1 Kindle bestseller slot (compare with, oh, a few hundred times that for the NYTimes hardback list) this isn't going to happen next week.

33:

Thank you so much for the really useful scoop on your contracts. I have a question about one of the things you left unsaid. I'm afraid you didn't say it because you don't want to share (which is obviously understandable), but just in case you just felt it wasn't important (well, for me it is!) I'm going to ask: you told about the number of copies you need to sell to step up in each "stair" of royalties percentage, but you didn't say how many "personal copies" (more or less, per book) they'll give you for free... Can you please share that info?

34:

Two posts coming in short order, on two different topics.

This is the polite/unirritated one.

Nitpicks regarding the origin and status of copyright:

  • Copyright is statutory, not common law. The hint for this is the Statute of Anne, 8 Anne ch. 19 (10 Apr 1710), which then tussled it out in court and won definitively about 70 years later.
  • Not all English-speaking countries have life+70 as the default term; for example, the RSA is still at life+60. However, all Berne nations have at least life+50; blame the extra 20 years on the French, the Treaty of Rome, and the WIPO Uruguay Round (which resulted in the WIPO copyright treaty).
  • The US not only doesn't recognize droit moral, it explicitly disclaims it, and specifically holds that droit moral rights are alienable. That said, the US's position is that its trademark and unfair competition law — both federal and state — is sufficiently parallel to the rights afforded in the "new and improved" Berne Convention that US copyright law need not be amended to comply with the Berne Convention. This position has been accepted, somewhat grudgingly... since, historically (and certainly prior to 1964), the world's biggest copyright pirating nation has been the US, and everybody else figured that getting the US to acknowledge something was better than continuing to treat US copyrights as pariahs.

Sorry if this is pedantic, but it's a side effect of litigating on and teaching this stuff, sort of like water retention is a side effect of most effective antipsychotics. You can draw your own conclusion concerning why I'm invoking antipsychotics in a discussion about copyright and publishing.

35:

... and now the impolite/irritated comment.

N.B. My irritation is not at Our Gracious Host. It is at the [insert string of foul and disgusting expletives here] idiots who provide legal advice to management in the publishing industry... and even the Author[']s['] Guild on this side of the pond.*

I'm afraid I have to offer a correction that is distinctly nontrivial. Our Gracious Host said:

Bankruptcy and liquidation. I can get my rights back if the publisher goes bust. (Important: agents, or smart authors, always make sure there's a clause to this effect in the contract.)
I'm afraid not.

These clauses are prohibited, and have no effect. And have had no effect in the US since 01 January 1978, the UK since (if I'm reading a secondary source correctly) 31 March 1984, and have never been valid in Australia.

In the U.S., 11 U.S.C. § 362 bars "ipso facto clauses," which purport to distribute property to a nonparty to a bankruptcy action due to the mere fact of filing the bankruptcy action. In the UK, my understanding is that a combination of the insolvency statute and some equitable determinations by the EWHC roughly do the same thing. It's ok to define the filing of bankruptcy, entry into administration, a winding-up petition, or an insolvency petition as constituting an act of default... because that does not actually change any rights in the property, and managing existing defaults is properly within the authority of the bankruptcy court (US) or administrator (UK), so it/he/she can arrange for the orderly disposition of assets and fulfillment of claims. (Besides, the publisher is going to be in default when the next royalty period comes around; declaring it cause for default actually just makes it easier to administer the estate.) It is not OK, however, to actually change ownership of a right or property due to the mere filing of the petition. Recent example: Ask anyone who had a contract with iBooks how much success they've had getting their rights back... even though Preiss's contracts included an ipso facto clause.

In the US, it's been thirty yearsS since the Bankruptcy Act of 1898 (which allowed ipso facto clauses, but — due to a U.S. Supreme Court decision in the 1960s — made them unenforceable as to IP) was replaced by the Bankruptcy Code of 1978 (which bars the clauses outright). Similarly, it's been nearly as long as that since the UK system, using some legalistic sleight-of-hand, did the same; and change of ownership has never been allowed ipso facto in Australia or New Zealand (except to the Crown, but that's another issue entirely).

Worse yet, under some circumstances — admittedly, not likely to be an issue for an author of Our Gracious Host's stature, but potentially an issue for an author with sales and advances like D___ B____, "J____ P_____", or S___ K___ — the presence of an ipso facto clause can make for interesting litigation in bankruptcy/insolvency as accusations fly of attempted bankruptcy fraud/attempt to evade involvency administration. The only winner then is the lawyers**... and the clause still will not be enforced in the author's favor.

* A couple of years back, the AG, in its newsletter to member authors, acknowledged all of the above — except that last paragraph — and said that authors should probably still put ipso facto clauses in their contracts anyway. Of course, anyone who reads my blawg knows my opinion of the quality of legal advice being provided to the AG by both its inside and outside counsel.

** Aside: When the Bankruptcy Code was being written in 1976 and 1977, lawyers ensured that legal fees are a priority claim on the bankruptcy estate — that is, a "regular" creditor doesn't get paid until all of the legal fees have been paid. Since it was lawyers doing the drafting of the Bankruptcy Code... draw your own conclusion.

36:

The Philippines are a country, not a territory. You could put in Guam if you rewrite this.

37:

@cepitit

How might the exclusivity/sub-licensing clauses effect bankruptcy law?

ie, if the publisher hasn't the right to transfer the contract in the first place or must remit X% of the (reasonable?) sale value back to the author.

38:


IANAL but redefining the transfer of rights as a 'Lease' in the contract should help, and stating that the 'Lease' has to be renegotiated under any circumstances where there is a either a bankruptcy filing or a 'change of control' of the corporation. But you really need to check with a lawyer as to whether I'm right about how a Lease works in bankruptcy law, and of course you'd need to do that in every jurisdiction.

Charlie, thanks very much for this informative, and hilarious post. I really enjoyed it.

Wayne aka The Mad Hatter

39:

My understanding is that such authors still retain copyright. However, they are entering into a deal that allows them to use material that would be held to be the intellectual property of the commissioning rights-holder.

Really? My own understanding differs strongly from this, although this may vary from case to case -- I was under the impression that many media tie-in novels, like comic books, are done as work-for-hire for a parent corporation, with all rights to the work ceded to the parent corporation after the initial contract is completed.

There are many cases where someone has done tie-in work for a franchise and then the franchise owner goes on to use *original work from that tie-in* (characters, setting details, plot events) in later works by other people without the permission of -- or acknowledgment or compensation to -- the original tie-in writer.

40:

Moral rights have strange consequences in some cases. Many years ago, the academic publisher I worked for got a paper for publication in an archaeology journal. This was illustrated with photos of ancient Mesopotamian works of art. When I checked the permission statements, I found that some of them were in the possession of the Louvre, and that they asserted that even though there was no copyright in the works, the moral rights of the anonymous millenia dead Mesopotamian craftsman had not been extinguished with time, and since his heirs could not be identified, they were now vested in the Louvre as the custodian of the work, and they wanted to get paid for its use. Every year that the work was available. Which meant perpetually, since the paper was going to have an online version. Since no scholarly publisher then was set up administratively to ensure an infinite series of payments, and since we could be legally liable if the author failed to keep track, we told the author to cut that part of the art and revise the paper.

I would have thought, personally, that the moral rights descended to the government of the region where the work was done—that is, back then, to the Saddam Hussein regime. But apparently the Louvre's lawyer read it differently. That was all so weird that I have remembered it ever since.

41:

Talking of strikethroughs, I recollect from a biography of Lillian Hellman that on one occasion she was negotiating a contract that demanded for the publisher all rights "in the universe or elsewhere". She asked if she could reserve to herself the rights to "elsewhere", but was told no.
Probably apocryphal, but on the off chance...

42:

37, 38

The term you're both looking for is "license"... and it's still not easy to predict what is going to happen. In particular, if the proceeding is a Chapter 11 reorganization (US) or a non-winding-up insolvency (UK), there might not be an adequate change in control to trigger the clause. And it gets better if you're dealing with a contract that was written before 1978, but the bankruptcy/insolvency occurs now... particularly for the US, where under our then-relevant Copyright Act of 1909 it wasn't a license, but a sale-and-return.

Calling something a "lease" that doesn't fulfill all of the legal niceties of being a "lease" won't help, either.

43:

Art @39; having done some more digging I stand corrected (remember, check the answer first, then post a response!) It turns out that at least one author I know does write media tie-ins where the copyright is held by the rights-holder. This writer does retain the moral rights (a quirk of English law is that to get the full benefit of moral rights you have to assert your authorship within the work) but as already noted these are inalienable anyway.

William H Stoddard @41; the spectacularly expansive French approach to moral rights is legendary.

44:

If you ever want to know if the author maintains copyright, just look inside the book, on the colophon page, where it says "copyright whoever" and see if "whoever" is the author or Lucasfilm, etc. I can almost guarantee that it will be Lucasfilm, etc.

45:

It depends on how the contract is worded. If I remember correctly Fred Bestall was only paid per strip on a work for hire basis by The Express for all the work he did on Rupert the Bear. All the copyright is held by Express Newspapers even though Fred built the whole Rupert world of Nutwood after he took the strip over from Mary Tourtel, even characters like the guides which were based on children he knew from Surbiton Hill Methodist Church. I think the only part he held any rights too was the origami pages published in the annuals.

All of the above to be filtered through long ago memories of knowing the man when I was young as my family attended the same church.

46:

Mention of rights-splits got me wondering...

I see US editions of books over here sometimes, Tor and Baen books are the ones that come to mind. Is it that the writer has sold UK and UK territory rights to the same publisher? Or has the UK publisher come to an agreement with the US publisher - you make 'em, we'll sell 'em, and we'll give you a cut? It seems like an obvious way of reducing some costs, and UK readers probably don't care too much about reading US English.

47:

Marcos: the number of free copies varies. However, it's typically 10-15 for a US or UK hardcover edition from a major publisher, and the same for a mass market paperback. (The actual allocation is more likely 15-20, but 5 go to my agent for sending to translators at foreign publishers.) For translations, it varies -- there's usually a contractual obligation to supply 3 or 6 copies, but many publishers are very lax about sending 'em out (so I either buy a reference copy if I visit the country in question and see it, or occasionally bug my agent, who also likes to have a copy of everything they've sold).

48:

On the one occasion when I was approached about doing some comic scriptwriting (Marvel asked me if I was interested in taking over "Iron Man"), it was on the basis of work-for-hire. That and other considerations ((a) I'd just signed two multi-book novel contracts and was Busy, and (b) I did some reading and decided I hated Tony Stark) caused me to turn it down.

My understanding is that with tie-in novels the situation varies; some insist on work-for-hire but pay a large lump sum to the author, others insist on work-for-hire and pay and advance-against-royalties -- they own the IP but pay royalties, in other words -- and others do the sort of arrangement Simon Bradshaw describes. In all cases, however, the IP owner's aim is to maintain control of their property (and they do this by controlling publication of the derivative works and veto power over approval -- hence publication -- of such works).

49:

Ray, you missed the third possibility: grey market imports by bookstores. In general, if a British publisher has bought the rights to book X, and discovers that Waterstones or W. H. Smith are importing the US edition of book X and selling it in the UK, they'll send them a polite note along the lines of "nice little wheeze you've got there, shame if our lawyers noticed" and the chain Stops Doing That. They don't go after small fry -- independent bookstores -- because (a) they're not seen as a threat to sales and (b) they're too small to be worth it.

(Also: for a while, Macmillan in the UK were republishing Tor titles under the Tor imprint, in the UK -- they're part of the same publishing group.)

(Also: Orbit, unlike the other major SF imprints, operates worldwide -- although their US and UK and AUS lists are different and may be printed locally and have different cover designs, they usually buy world English language rights and aim to publish globally. This is a very new trend and it is not yet obvious whether it's going to be adopted by the other major publishers.)

(Also: British readers can cope with American spelling, but not vice versa. This has big implications for acquisitions and editorial policy in any publisher attempting to go down this route.)

50:

American books often use British spelling. My American editions of James Herriot's books used British spelling; consequently, I lost a spelling bee at school on the word "cosy."

51:

What exactly can a UK publisher do to a UK bookseller who is buying grey-market imports?

They aren't making a copy, merely buying one. Under first-sale doctrine, they can always resell the copy they have bought. If the publisher has a recourse, it's with the US distributor that the retailer bought the import from (depending on the contract between publisher and distributor).

This is different from an eBook because reading the eBook requires making a copy (from persistent storage to the display) and so you are not just buying a copy but implicitly a license to make copies when you read. Obviously a US publisher with US-only rights does not have the right to sublicence non-US readers to read eBooks outside the US.

Incidentally, I believe that it's technically a breach to read a purchased eBook outside of the territories that the publisher you bought it from has rights over.

For example, Charlie licences Tor to produce copies of his work in the US and associated territories. Tor then sublicences that right to an eBook purchaser so the eBook reader can make a copy in order to read that book. But Tor can only sublicence a right that they possess in the first place, so you're technically only allowed to read the book in the US and associated territories; if you read the same book in the UK on holiday then you're making a copy in the UK - which is not a right that you possess, since Tor can't grant that right to you (as they don't possess it in the first place).

This is one reason why eBook rights should be sold on a "global English" basis - otherwise the readers infringe copyright every time they go on holiday.

52:

What exactly can a UK publisher do to a UK bookseller who is buying grey-market imports?

Sue them for copyright violation, if they're pulling in copies wholesale under sale-or-return. (AIUI first sale doctrine only applies once the book has been sold retail.)

Alternatively, refuse to sell anything to the UK bookseller. This is a serious threat; US grey market imports are marginal, at best, and losing a huge chunk of the range of UK titles that everyone else is stocking would hurt like hell.

It also depends on what you mean by "bookseller". Both Waterstones and W. H. Smith (who I singled out) are large chains with central buying; in W. H. Smith's case they also operate as a wholesaler.

This is one reason why eBook rights should be sold on a "global English" basis - otherwise the readers infringe copyright every time they go on holiday.

Well, yes: but as I noted earlier, this isn't the right thread for discussing how to Fix The Publishing Biz, this is the place for anatomizing What's Wrong With It.

53:

Sue them for copyright violation, if they're pulling in copies wholesale under sale-or-return. (AIUI first sale doctrine only applies once the book has been sold retail.)

Only when it's been sold outright, not retail - which is not quite the same thing.

Provided the bookshop is prepared to take on the full risk of the book failing to sell, they are the first purchaser and first-sale does kick in. Generally, grey-market imports are on exactly those terms because trans-Atlantic returns are such a pain to deal with.

54:

If I remember correctly, the last time one of my UK publishers sending a nastygram to $MAJOR_RESELLER, it was because $MAJOR_RESELLER had ordered well over a thousand US mass market copies of $BOOK, and this was seriously jeopardizing the viability of their own print run.

It really isn't cost-effective (or desirable) for publishers to do this unless the scale of the grey market imports threatens their own business. (If nothing else, US imports tend to cost more than UK editions, so the purchasers tend to be enthusiasts who haunt specialist stores ... the very folks who do the UK publishers' marketing for them, by word of mouth.)

But a first UK print run of a paperback can easily be as small as 4000 copies -- they can reprint in batches of 1000 or 1500 at a time with rapid turnaround, and they're trade sales anyway -- so a wholesaler importing more than 500 copies is probably cause for concern.

55:

A thousand copies! Yeah, that's out of order unless there's a reason to expect the book never to be in print in the UK (and why would you expect that? If one chain can sell a thousand then the rest should make that up to a full run of four or five thousand). Grey-market is usually in quantities of under a hundred.

56:

I'm looking forward to reading your take on regionalization v. translation. I've loosely titled situation around publishing copyrights as the Copyright Forest and the Fungible Trees, as in not seeing the former for the latter.

The most telling example of regionalization comes from the DVD marketplace, where, to protect ca. 400 titles/year, for a period of 90 days, Hollywood has crippled their back catalogues.

While in the case of Hollywood, it's easy to label it as rent seeking business model protectionism, in the publishing industry, while that's true to a lesser extent, I think hidebound traditionalism plays a greater role. Publishing and bookselling is, after all, a far older business, and on the retail side, is only now starting to see the impact of technology, as opposed to the **AA industries, which exist primarily because of technology, and hence, more sensitive to its advance.

57:

Whilst striving to steer clear of Charlie's 'How to fix it' upcoming posts I do urge caution on the whole 'advances in technology' bit.

Almost forty years ago France suffered a culture shock when it became apparent that modern looms were incapable of reproducing the extremely complicated silk brocades which had been woven on Jacquard looms.

For example, the silver and gold brocade for Louis XIV's bedchamber at Versaille is so difficult that even a master weaver can only produce around 3 centimetres of it per day.

Fortunately it was possible to renovate some of those looms, and recruit elderly master weavers to pass on their skills before both were lost forever.

I am not, of course, suggesting that changes in technology will not change publishing, but they may not be the changes people imagine...

58:

darn, OpenID-login not working for me ..

anyway, very much looking forward to the "rights for english sales to non-english-speaking-countries (and point of sale not in an english-speaking country)" explanation. I've always been curious how it works with (e.g.) amazon.de which sells UK and US versions (and sometimes make it quite hard to find out which is which if you don't know the names of the publishers)..

e.g., if I buy a british or US version of a hardcover through amazon.de (also delivered inside Germany) does that count as a sale in Germany? or in the country of the publisher? i.e. in which statistic does it cause a non-significant flyspeck of a change?

59:

I'm curious as to how the contracts cover import editions (I'm not sure this is covered by grey-marketting).

I specifically talking about situations where-in the reader can buy either a native copy or an import. I'm US and can buy via Amazon US a copy of a book (example PD James The Private Patient ISBN-13: 978-0307455284) or the import copy from Canada (ISBN-13: 978-1400025886) (I noticed this with a gift of that very book recently). Obviously the import copy is more expensive but it may have additional material that is supposedly specific to a certain market. Music CDs and DVDs are more likely to be this way than books but I can see the day where a UK printing may have say an extra epilogue chapter versus the US version.

BTW - IMO this is a dirty way to treat the fans in area that doesn't get the extras. Your opinion?

60:

The first-sale doctrine (17 U.S.C. § 109) is US-only; in the UK, it's a matter of typical industry courtesy under the Copyright, Designs and Patents Act (1988). In fact, arguably there is no first-sale doctrine in the UK — thus the recent rumblings about "follow-on" shares to painters and sculptors from sale of their works at auction.

In the instance Richard describes, UK law — not US law — would control. (Editorial aside: This is another of the areas in which IP counsel who aren't academics tend to screw up, as conflicts of law is not sufficiently regular and lucrative in law practice for most practicing counsel to learn it.)

61:

Nice overview of a publishing contract. Mr. Petit has already addressed the question of bankruptcy and moral rights in the U.S., so two of my three quibbles are off the table.

The only other one I have is your depicting the publisher's Subsidiary Rights staff as "clerical staff". That's a bit more dismissive than I would normally expect from you.

Having been a Subrights Director for a major sf house, I have learned that these are trained professionals, who spend a great deal of time: (a) clarifying what rights are available in the 100s (if not 1000s) of new titles published every year, (b) familiarizing themselves with their house's books and authors, (c) monitoring the subrights licensing activities of other houses, and (d) preparing and delivering market-specific pitches for potential licensees. They are, in point of fact, as competent at their jobs (and in many cases I've seen, more so) than the literary agents on whom you'd rather rely.

Yes, literary agents take a lower percentage from, and can provide more focused attention to, the licensing of an individual author's books. It just seems to me that it would not have harmed your thesis if you had avoided belittling working professionals who participate in feeding your bottom line by their efforts on your behalf.

62:

"I sell North American (US and a list of associated territories including the Philippine Republic and Puerto Rico) rights to a different publisher from other English Language rights � UK and commonwealth rights go to a British publisher."

So just out of curiousity, where does Canada fit in this split? I know Canadian publishers are driven insane by U.S. publishing contracts which automatically assume Canada is part of a unified "North American" market, usually freezing them out of the running to acquire separate Canadian rights for foreign books.

This is not an inconsequential issue for the domestic publishing industry. Firefly Books in Vancouver somehow managed to wrest separate Canadian rights for the Harry Potter series away from Scholastic, and thereby probably funded their entire Canadian publishing program for the next 40 years. Otherwise, that money would have flowed straight into a U.S. bank account and done nothing for Canadian publishing.

63:

Sean: no belittling intended. Nevertheless, foreign rights staff work under very different constraints from a literary agent -- and different pressures -- and I've generally had better results from an agency's sub-rights people than from a publishing house's.

64:
They'll also lodge a formal copyright claim for United States copyright and lodge copies with the Library of Congress. I guess that's a pro-forma acknowledgement of my moral rights.

Actually, from my understanding, it's a relic of (or grand tradition from) older copyright laws in America: at one time the Library of Congress was the registry for copyrighted works in America, and you didn't qualify for your proprietary rights if you didn't have at least one copy in the Library of Congress. (It was a neat kill two birds with one stone approach: the Library of Congress maintained at least one copy of every single work copyrighted in the United States for a sizable chunk of years and Congress didn't have to budget for a separate copyright office...)

65:

Mark: the reason for the unified North American rights thing is that back in the days of sail (and/or steam) it was not particularly economically effective to ship British copies of books across the Atlantic to Canada, when there was a local licensee just south of the border. The rights split was actually UK and Commonwealth (except Canada)/USA and Canada.

The problem with Canadian publishing is that it is a relatively small market (half the size of the British one; a little bit bigger than Australia and New Zealand combined) situated really close to a gigantic market, and to make matters worse, it's part of a free trade zone with that bigger market. The Atlantic insulates the British and Aus/NZ markets from the corrosive effect of such proximity, but if we didn't have it ... well, there'd be one English language market, and stuff that didn't cater to its cultural expectations would be out in the cold.

On the other hand, there are some US editors who take a specific interest in Canadian fiction; David Hartwell at Tor, for example.

66:

I trust that your intent wasn't to belittle, and that your experience is that your agent does a better job. The phrase "clerical staff" just comes across as though publishers are delegating this important aspect of our mutual bottom line to inappropriate personnel. That is simply not accurate. I'd equate the effect of your usage to that of a subrights person stating at the Frankfurt Book Fair that they were presenting "the Spring 2010 list by the usual bunch of hacks".

67:

I think you may have some weird American usage of the work "clerk" in mind that I'm unfamiliar with.

(Clerk: someone who works with documents. Yes?)

68:

No, in American usage, a "clerk" is also a low-end person who handles menial tasks. Consider the movie Clerks: the eponymous characters were tellers, and ran their respective stores (convenience store and video rental store), but were essentially ambitionless slackers.

69:

Your basic definition of "clerk" is correct, though it also has the meaning of someone who works the sales floor in a shop. In a corporate setting here, "clerical staff" usually means support staff and underlings (the people who do the filing and such ("administrative staff" is the current favored term)). People who actively pursue and/or negotiate deals, such as subrights, contracts and legal staff, are not "clerical".

70:

Sean, over here someone who works the sales floor in a shop is a shop assistant.

(This is, in miniature, a classic example of how British English and American English differ at a more fundamental level than merely how to spell "colour" (or "color").)

71:

(Clerk: someone who works with documents. Yes?)

An editor, for instance?
I wasn't aware of a difference in tone between usage of 'clerical staff' across the Atlantic. Current Australasian usage IME may include office supervisor-level positions, but no 'higher'. 'Office staff' would be seen as less pejorative, and differentiates from operational workers (e.g. truck drivers, production line workers).

72:

A diversionary question to CE Petit and Simon Bradshaw -- how does bankruptcy interact with publishing contracts which sell ebook rights for two or three years, renewable by mutual consent of publisher and author?

This is *not* a hypothetical. While not universal, such contracts are standard in erotic romance epublishing, and were in use at Triskelion when that publisher went down in flames and Chapter 7 back in 2007. This resulted in a serious fight between the trustee, who was of the opinion that he was entitled to sell all lifetime rights as assets of the publisher, and the authors, who were of the opinion that they had sold specifically short-term ebook rights and in some cases short-term print rights or options, and that they would be invoking non-renewal come termination date. I believe the trustee eventually conceded that he could not sell rights that had never been the property of the publisher in the first place, but the two-year rights were still held in limbo during the bankruptcy proceedings. All of which was an absolute bloody mess, and left me wondering exactly what rights the authors in that situation actually had.

(My description above is based on what the authors were saying in public, which may or may not be completely congruent with the trustee's view of the matter.)

73:

Our Gracious Host said:

Bankruptcy and liquidation. I can get my rights back if the publisher goes bust. (Important: agents, or smart authors, always make sure there's a clause to this effect in the contract.)
...to which cepetit.myopenid.com replied
I'm afraid not.

These clauses are prohibited, and have no effect.I can't speak to the publishers that Our Gracious Host has dealt with ("Our Gracious Host." I like that.), but my, er, close observation of the publishing of comic books matches cepetits response. When First Comics self-immolated, a number of artists found themselves completely stuck until the bankruptcy proceeding resolved. Yes, they had the clause O. G. H. describes, no, it did them no good. The judge ruled that the right to publish was an asset of the company and trumped the contractual clause. As a result, some series remained out of print for years, with the value declining precipitously as the readers moved on.

Similarly, "change of control" contracts which didn't explicitly mention bankruptcy were also worthless. Since there is technically no change of control until the bankruptcy goes to completion and someone has purchased the assets, the clause didn't apply. Nor were the potential purchasers much interested in buying an asset which, as soon as it changed hands, could potentially stop being an asset.

74:

I should add, the situation I speak of was specific to the US. Nor am I a lawyer, blah blah blah.

75:

And by sheer co-incidence, I just stumbled across this interesting article on the economics of electronic publishing in the New York Times. No idea how accurate it is, but he does cite a lot of numbers.

76:

The rights split has actually been a very positive thing for Australian authors as it has allowed a local industry to grow, even if they are mostly off-shoots of the big companies. A local publisher could buy Australian rights to a book for a modest sum and stand a fair chance of recouping their outlay. Usually this meant local authors since they were the only pool of unknowns that could be easily accessed. If the book(s) sold well then the authors had a track record which often lead to publication in the US & UK. Without local publication the authors have the very difficult task of trying to find an agent and/or publisher half a world away.

77:

"British readers can cope with American spelling, but not vice versa."

In fact, when my bookgroup read Reynold's Pushing Ice in January, a lot of them were very upset at the British spelling of pediatrician.

78:

Curt Sampson, it's very rude to email me that I had posted something inaccurate while you were using an edress that bounces.

79:

Re: Clerks

A good example of the more distinguished use of the title "clerk" in the US might be the lawyers who work for judges.

80:

In this instance — and it didn't require a ruling from the judge; it's bloody black bloody letter bloody law — the trustee's conclusion that he controlled the publisher's end of the rights was correct. Where he went wrong was in defining what the publisher's end was: If it was, as you described, properly limited to a discretionary either-can-terminate option, then he controlled only the rights remaining under termination time... at which time the authors were free to terminate without regard to the bankruptcy proceeding, and the trustee couldn't do anything about it (except offer more money to the authors... but that's a truly exceptional instance).

What you've described is an excellent example of how IP and bankruptcy lawyers don't know squat about each other's specialty area of practice. (Believe it or not, it's actually an ethics violation for a US-based attorney to call himself a "specialist" for anything except patent law.) Had a bankruptcy attorney been involved in drafting the publishing contracts, the contracts could at least have had a chance at being clear what rights the publisher had in the kind of language that bankruptcy trustees can understand. Had an IP attorney been involved in the bankruptcy, the trustee might have had the chance of not making an ass of him/herself. (And I say "her" advisedly, as the trustee in the iBooks/Byron Preiss bankruptcy is — note the present tense! — female.)

81:

Thanks, CE Petit @80. That was what I thought would be the situation, (partly from the various panels and posts from you about the subject over the years).

I suspect that the real issue may have been that the trustee had a mental model of publishing contracts that assumed that manuscripts become the property of the publisher, i.e. work for hire or something akin to it. Unfortunately some of the authors had assumed that the ipso facto clause meant that they could take back *all* rights, thus leading to much angst all round.

And just to add to the fun and games, some of the authors had walked away from the publisher in the six months previously, because of the publisher's bad behaviour towards them. They were deeply unhappy about being told that their letters of release were an attempt to move assets out of the bankruptcy and thus null and void...

82:

Off topic but reading between the lines it looks like the laundry is taking over some of the MODs work:

http://www.theregister.co.uk/2010/03/02/ufo_files_new_bizarre_truthfulness_plan/

83:

Many thanks to Our Gracious Host and Mr. Bradshaw @ 16 for their insights. I remain curious as to how much negotiation publishers of tie-in fiction will put up with regarding payment, but I'm happy to table that as drifting a bit far off topic.

Also, while I respect Our Gracious Host's decision to turn down Marvel's offer, I humbly submit that Mr. Stross's take on Iron Man would have been a damned interesting read.

84:

David, after looking into Iron Man I came to a very simple conclusion about Tony Stark: I hate him and I want him to suffer, without the luxury of a happy ending.

(Clue: I'm not a gung-ho red-stater. I am, in fact, not in favour of American imperialism, other than to the extent that the American imperial hegemony is less nasty than its predecessors and rivals; let us not forget that a lesser evil is still evil. As Iron Man is basically a Mary Sue figure for Donald Rumsfeld, I think we can safely say that he's not my cup of tea, and the amount of irony I'd have to bring to the dish to make it palatable would probably stick in the throats of Marvel's editors.)

85:

I thought Tony Stark was a more realistic Bruce Wayne. (That said, my only exposure to him was in the movie, which I happened to enjoy a lot.)

86:

Charlie @84:

So, it turns out that in Marvel's 2006-7 Civil War crossover storyline, Tony Stark was cast as a leader of the authoritarian forces. There's a Gitmo for renegade superheroes, further atrocities, and much nastiness. Stark becomes the head of SHIELD and cracks down a lot. Captain America leads the pro-civil-rights revolutionaries against him.

In other words, Marvel agrees with your assessment.

87:

Curt dropped his blocking of Verizon so we could talk and what we have differing ideas about is this:

"Note that unlike many authors I sell North American (US and a list of associated territories including the Philippine Republic and Puerto Rico) rights to a different publisher from other English Language rights"

He sees the "territories" as a group of places to sell. I see them as legal territories of the US. Which, Charlie?

88:

They're "territories" because that's how they're designated in the book contract. Nothing to do with US ownership, or Yemen wouldn't be on the list.

89:

Some people at Marvel did, but many others did not, and the Civil War storyline basically ends with the pro-registration side basically turning out to be correct (Captain America surrenders without a fight when he realizes the harm the anti-reg movement is doing, registration becomes the norm and a lot of non-USA superheroes shake their heads at what a big fuss the USA made out of a sensible progressive "gun-control" policy they've had for years, etc.)

Of course, now the government agency in charge of registration is starting to show its true colors by hiring former supervillain Norman Osborne (Green Goblin) to be its leader, so who the hell knows. This is why so many people gave up on Marvel during Civil War -- the narrative can't decide which side it's going to take and veers back and forth enough to give you whiplash. (No, having good guys become bad guys and bad guys become good guys willy-nilly is *not* the same as genuine moral ambiguity or complexity.)

90:

One clarification based on the particular facts you stated, Jules:

If the reversions were six months prior to the petition for bankruptcy, that means that (under US law) the debtor was not just bankrupt, but insolvent — a technical definition that basically means "not just broke, but really, really broke. In an ordinary bankruptcy, the preference period is only ninety days prior to the petition; in insolvency, it's a year; and in the event of a fraudulent preference (as opposed to a fraudulent conveyance, which actually has little to do with a lay understanding of "fraud"), it's as much as three years.

So, what's a preference? It's shorthand for "transfer of assets, not in the ordinary course of business, that favors one creditor over another creditor with the same or higher priority." The trustee has the power — but not obligation — to "avoid" a preference and force return of the asset to the bankruptcy estate, whether the asset is money or, as in this instance, a publishing license.

The key issue here is whether the return of rights to an author is, or is not, in the ordinary course of business. To a trustee who doesn't understand publishing, it sure looks like it's not in the ordinary course, as it represents (to the traditional bankruptcy way of thinking) abandonment of a valuable asset. Instead, though, the authors and their agents would have been better off if they had either

  • challenged that the returns of rights were actually in the ordinary course of business by objecting to the trustee's attempt to avoid a preference in the bankruptcy court... at a cost of around $3-$4k in attorney's fees to start with; or
  • ensured that the publishing contract was in terms of a license, and not a sale, because then the burden of proving that termination was not in the ordinary course of business falls on the trustee, not the party objecting to avoidance

Sorry to be so pedantic on this one, but it's a huge, ongoing issue (I've already mentioned the Preiss fiasco, and Preiss's records were unusually complete and well-organized for a publisher... which should really scare anyone who knew anything about recordkeeping at BPVP), and it's just going to get worse. And it's far, far worse in Hollywood; but for confidentiality, I could tell you who really should have been credited with the screenplay for the first Spider-Man movie, and that monster went through three bankruptcies before it got to the egotist who claimed credit for the screenplay. But if you really want to speculate, just imagine J____ P_______ goes bankrupt and the terms of all of those WFH contracts with the eager slaves coauthors get into the bankruptcy files...

OK, so I'm a nerd, and I look for my jollies wherever I can.

91:

Charlie and others asking about the "territory schedule":

If I may, from my seat in the contracts department at Charlie's U.S. publisher, give a brief overview of territoriality.

The word "territories" is used interchangeably in publishing to mean both specific areas under U.S. or U.K. governmental control, AND areas of the globe where a particular U.S. or U.K. publisher can sell their editions. This, I think, is where the confusion arises in this thread, as the word is being used to mean both things.

Assuming that an author hasn't granted the U.S. publisher "World" or "World English" rights, the areas where a publisher may sell a given book is split into two pieces - the "exclusive territory" and the "non-exclusive territory" (or what we call the "Open Market"). I'll talk about these from the U.S. perspective, but it's mirrored pretty directly by the U.K. publishers.

The exclusive U.S. territory will usually consist of the 50 U.S. States, plus the several non-U.S. areas which fall under certain U.S. protective or dependent treaties. These include the Philippines, Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, among others (my token link to a list on Wikipedia http://tinyurl.com/ywfs8x).

It's also fairly usual that the U.S. publisher will get Canada, though this varies from deal to deal, and Canada may often go to whichever publisher, U.S. or U.K., makes the first offer for the book.

The non-exclusive territory comprises the entire rest of the world that is not specifically set aside in a schedule of countries/regions attached to the contract, and reserves those listed countries/regions for the U.K. publisher. This list is where much confusion comes in. Each U.S. trade publisher defines the U.K.-related countries/regions differently, AND each U.K. publisher defines them differently. It's nearly impossible to get the same list of U.K.-exclusive selling areas from any two publishers. The main countries in this list will be the United Kingdom, Northern Ireland, Irish Republic, Australia (and its related dependencies), New Zealand (and its related dependencies). Wikipedia has a decent article about the United Kingdom's overseas territories.

Then come the complications. For instance, most U.K. publishers claim both Egypt and Israel as part of their "territories". They tend to have historic precedents for this, and U.S. publishers do not dispute them. Yet, we argue over places like India, Singapore and, these days, Hong Kong. No real rationale I can offer for this. The decision as to which countries are worth fighting for is made above my pay-grade.

Charlie mentions places like Yemen, Burma, Fiji and Zambia above as places that appear on the schedule, and where competition occurs. This is not correct. The countries on the schedule are the places where there is no competition between U.S. and U.K. publishers. Those are specifically exclusive to the U.K. publisher. The only places where the U.S. and U.K. publishers are in direct competition (aside from the grey-market mentioned above) are countries NOT on the schedule/list. So, Yemen, Burma (or Myanmar, depending on whose schedule you have in front of you - don't get me started on how difficult it is to deal with political correctness and the renaming of countries in our databases), Fiji, Zambia, South Africa, etc. belong to the U.K. publisher.

And, of course, these days we argue over Europe, which was historically part of the Open Market. Europe, like Canada, usually goes to the publisher to make the first offer for the book.

I'm not sure this covers everything about territories, but I think it's the best I can do in short form without taking over Charlie's blog.

In the interest of full disclosure, Mr. Petit (whom I'd normally call "Charlie", but therein lies more confusion) and I co-wrote an Introduction to Publishing Contracts which covers this topic and contains a sample territory schedule. The document, though a bit dated now, is available on the SFWA site.

92:

Sean: one minor nit -- for very specific reasons this particular US publisher contract included a bundle of territories in the non-exclusive tranche that would normally be reserved to the UK publisher. (I'm not going to discuss the reason it differs from normal practice in public because that would effectively de-anonymize the publishers concerned. Email me if you really want to know.)

93:

There are some fairly obvious cases in Canada where the UK publisher has the rights. Steven Erikson's UK publisher, Bantam, has Canadian rights (Tor picked up US rights to Erikson well after the Malazan series started -- originally no US publisher wanted it), which is why for some time US readers of Erikson ordered via Canada; Richard Morgan's Black Man appears under that UK title and not the US Thirteen. Raincoast Books (a Canadian publisher) published the Harry Potter books in a format matching the UK editions (i.e. it used the same plates and cover art as Bloomsbury, sublicensing the rights from Bloomsbury), not the US Scholastic editions. Back in the Seventies Tolkien's Ballantine editions were displaced when ABP created Methuen Canada to publish Tolkien in Canada (it also acted as an agent for other ABP publishers, but that was its main financial raison d'etre). In most of these cases (I'm not sure about Morgan) there was a lag between the original UK rights and a later sale of the US rights.

94:

You can just call me Jaws. Bruce doesn't work, because there are a few Australians who hang out here...

In any event, I want to point out one critical distinction that often gets buried in discussions of territorial rights: The right to sell in Territory X is not congruent with the right to sell in the native/official language of Territory X.

Consider, for example, Belgium. (Which, not coincidentally, is the general headquarters of the EU.) It's rather silly to refer to "Belgian rights" as somehow territory-unique, as there's a critical prior question: French, English, or Walloon? And now we can throw in a Canadian French-language edition just to make things even more interesting.

And, as discussed in the guide-document-thingy Sean and I wrote for our presentation, it gets even better when looking entirely within the EU, because — thanks to a decision regarding construction equipment — the EU is a single territory, so if you license French-language rights in France you've also, perforce, licensed French-language rights throughout the EU... regardless of any restrictions stated in the contract.

95:

Thanks, Mr. Petit. :) An excellent point. If I'd addressed the language issue, my original comment would have been double length.

96:

Jaws, I am *still* not sure exactly what happened in the Triskelion mess, because it was getting filtered through very unhappy authors, many of whom had not had the benefit of hanging out in fora where discussing the legal stuff is light entertainment. It may be that they had simply been warned by people with some knowledge that they needed to check whether there was insolvency involved because the back-dating was a potential consequence.

I do know there were quite a few people, including at least one lawyer, suggesting that it would be an excellent idea to get the ipso facto clause in your contract as it would be a protection against such messes. This was the point at which I started thinking that I should send out an SOS to such people as yourself and Miss Teresa. :-/

97:

Look, it's irrelevant to discuss territories and how they work in this case or that case, or when it was sold here or there for this book or that, since it's different in every instance. The point being made is just to understand this: the world is divided up, by publishing, into "territories." Authors sell the rights to these territories to publishers. Authors try to sell as little as they can for as much money as they are able, and publishers try to purchase as much as they can for as little money as they are able.

The important information to note from this comment discussion, in the context of an attempt to correct CMAP, is that authors don't get paid to write. Authors sell licenses to completed works or to-be-completed works. This is why it is a publishing misconception. People think authors are paid to write. They are not. They are paid licensing fees to works they have already written or intend to write.

98:

Or, of course, author sell various rights. Obviously there are exceptions (e.g., work-for-hire) but in general authors are not paid to write but for related rights and licenses. This is why they retain copyright, because without their copyrights they have nothing to sell. Before people start talking about CC licenses and so on, I will point out that nobody who has put a CC license on a book has given up copyright, only granted the general public particular licenses free of charge.

99:

Before people start talking about CC licenses and so on, I will point out that nobody who has put a CC license on a book has given up copyright, only granted the general public particular licenses free of charge.

You know that, and I know that. Funny how not everyone who uses CC licensed material knows that, however; like the charming folks I stumbled over in December who'd taken the free promotional edition of "Accelerando" -- released under the most restrictive Creative Commons license (no derivative works allowed, no commercial reuse permitted) -- and were selling it through the iTunes store for 99 cents a pop. Of which neither I nor my publishers saw a bent penny.

Problem dealt with via DMCA takedown notice, in this instance. (I generally ignore warez sites -- especially for material I want to see circulating, but in general life's too short to play whack-a-mole with the internet. For-profit pirate republication is another matter entirely, though, and I'm somewhat disturbed that there are a lot of people out there who read "Creative Commons" and parse it as "Public Domain".)

100:

Ah, thanks, Charlie! Curt was right!

101:

Your link has the end ) connected so gets a 404.

The Philippines were ruled by the US many years ago, but just has a protection agreement now, and the country with the largest protection agreement is Japan. (The people who don't want a big Marine base on one of their islands should get that -- we can stop protecting them.)

If we actually had the Phlippines as a territory now, we'd have a lot of military there trying to get the Al Qaeda militias off the islands. Probably impossible, but we'd be trying.

102:

I wouldn't discount the idea that they understood the license perfectly well and decided to ignore it. There are an enormous number of people out there who have no problem doing something they know is illegal or unethical in order to grab some money.

103:

Before people start talking about CC licenses and so on, I will point out that nobody who has put a CC license on a book has given up copyright, only granted the general public particular licenses free of charge.

It is a matter of increasing controversy among Free Culture folks that the 1976 removal of the need to register copyright to claim it in all cases unambiguously meant that it is now, essentially, not possible to truly release work to the public domain even if you want to.

Indeed, under the current legal regime it's arguable whether "the public domain" even exists as a living body of work or whether it's merely an artifact, a legacy -- the pro-copyright lobbies in Congress seem very clearly intent on making sure nothing ever enters the public domain ever again, precisely because the existence of truly public-domain works that aren't very old and caked in dust would challenge the mental model of what intellectual property is (a natural and universal property that applies to all creative work) -- in much the same way that enclosure was motivated by the burning drive to establish that all land everywhere MUST BE OWNED BY SOMEBODY and even leaving small scraps of not-very-valuable land "unclaimed" was seen as a messy loose end that needed to be tied up.

104:

If we actually had the Philippines as a territory now, we'd have a lot of military there trying to get the Al Qaeda militias off the islands. Probably impossible, but we'd be trying.

We're trying anyway.

105:

We're trying in a way less than we're trying in Afghanistan; nothing like we'd do if it was still our territory.

106:

Did you mean English, Walloon, Flemish for the summing up there? Those are the three languages relevant to Belgium, Walloon being Belgian French and Flemish being Belgian Dutch (with, obviously, their own nuances).

As an aside, many subtitlers for Dutch TV programmes, especially in the commercial channels, are clearly identitifable through word choices (in particular words that are simply different on both sides of the border -- the difference is along the same lines as US/UK) as being Flemish. Belgians must be cheaper.

107:

I just finished CMAP#3 and I think it is wonderful that you posted this - thank you.

108:

Somewhere in Samuel Beckett there's a line that goes something like "...in the civilised world and the Irish Free State".

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This page contains a single entry by Charlie Stross published on February 28, 2010 11:00 AM.

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