It can be tricky to protect yourself as a creator. The act of creation has enormous worth, as does sharing that creation. Fortunately, here in Australia, writers and other creators are granted automatic copyright and moral rights to protect their creative works, which is great! There’s a blog post over here to brief you on the basics if you don’t know them: ‘Five Copyright Essentials Every Writer Should Know’.
However, knowing the basics and having automatic rights isn’t enough to adequately protect yourself as a creator. Only the other day, a NSW Government department (not any of the wonderful councils I work with!) asked me to grant them irrevocable publication rights for images that I owned of me and creative works in perpetuity for general use, with the right to alter those images as they saw fit. ‘Perpetuity’ means forever. ‘Alter’ could mean changing anything. ‘General use’ means the image might not even involve promoting the creative industry. Luckily I knew the legal implications of such keywords well enough to say ‘no’. But other creators might blindly trust a request made by a government department, especially one dedicated to championing creators.
The same could be said of authors asked by publishers for the right to publish their creative works. Excited by the prospect of publication, an author might leap at the chance, irrespective of the conditions attached.
But I’m here to say ‘don’t rush in’ and ‘think it through’.
So is the astute and knowledgeable Alex Adsett, a publishing contract expert of twenty-five years. Alex has successfully finalised thousands of author contracts, film agreements, translation and overseas deals, and all manner of licences, and I was lucky enough to interview her via Zoom about how authors can better protect themselves.
Hi Alex, thank you for joining me!
What would you say are the common pitfalls writers might face when negotiating publication rights for their creative works?
Hi Zena! Well, the keyword there is ‘negotiate’. Authors often assume they have no right to negotiate when offered a publishing contract. They’re so nervous and excited by the fact that they’ve been offered publication that they’ll sign anything, not even thinking they can ask questions. Often when I receive a contract for review, there’s a note from the author saying ‘it’s probably okay, because the contract is standard’. How does the author know that? How many contracts have they seen before? Do they think it’s standard just because the publisher said it is? What if it’s standard for that publisher, but not across the industry? Every publisher has their own ‘standard contract’, which they use with all their authors, but that doesn’t make it ‘industry standard’.
So authors shouldn’t be swayed into saying ‘yes please’ just because it’s a publisher?
That’s right. Don’t be persuaded by the brand name. There are industry standards for a lot of things, but some publishers think what they have is standard because it’s their standard, whereas there are many differences and inconsistencies across the industry. For example, a Harper Collins contract is very different from a Penguin Random House contract, and so on.
Are there any general dealbreakers writers should be aware of, which you see all too regularly as a contract negotiator?
Every situation might have their own dealbreakers, and at the end of the day it is the author’s decision what to accept; but, once we agree the key things like advance, base royalty and territories, etc, I have two dealbreakers: high discount clauses and reversion clauses.
What’s a high discount clause?
A high discount clause affects the royalties an author will receive on sales of their work sold at a particularly high discount to bookstores. Most publishers offer a base rate of 10% of the RRP (the ‘recommended retail price’). An author might see that in their contract and think ‘good, that’s standard’ and assume that’s all there is to it. But there can be finer print, eg clauses that try to lower rates for New Zealand sales, subsequent editions, exports, or when the work is sold to bookshops at high discounts. Normal discounts to bookstores are 35%-55%, and it is pretty common for publishers to pay lower royalties if they discount above 55%; but some publishers try to sneak in paying lower royalties on everyday discounts of just 50%, which means authors will get a lower royalty on all their sales through some of the bigger stores like Big W.
What’s a reversion clause?
This touches on what you were saying about perpetuity. A reversion clause covers how long a publisher can use the rights granted to them. Mostly an author grants their rights to a publisher for the duration of the respective copyright, which can last up to 70 years from the author’s death. However, if the publisher isn’t doing their job properly, ie. if they’re not selling enough of the creative work in question, it would be reasonable for publication rights to ‘revert’ to the author. For example, if a publisher doesn’t sell 100 copies of a creative work in 12 months, an author should ensure they can retrieve their rights and make use of them elsewhere.
Yes, 70 years is a long time without any ability to pull the plug.
That’s why it’s a dealbreaker for me. Authors need to make sure there’s an exit, end date or some trigger to wind it all up if the publisher is no longer using the rights granted. The only exception would be if the publisher has commissioned the creative work. If they have paid for the work to be created and it’s a project tied closely to the publisher rather than the author, then a request for irrevocable rights would be reasonable. For example, I’ve worked with publishers who wanted to create a book on tea cosies, so they actively went out and found someone to write the book for them, then paid for an assignment of that writer’s rights. Similarly, another publisher was creating a physics text book and needed to commission chapters by various different scientists. That book is now in, something like, its tenth edition, updated regularly by the publisher, because they bought an assignment of irrevocable rights from the various scientist authors.
Could you tell us more about that word ‘assign’?
Yes, there’s a big difference between a licence and an assignment. Authors should understand what rights they’re granting, especially since publishers themselves might not even really know what they’re asking for, they just pick whatever words sounds good. If an assignment is requested out of ignorance with no proper payment to the author, for example, it’s highly problematic.
I often compare a licence to owning a house, then renting it out. You may have bought and renovated the house itself, but the renter lives in it and has certain rights for the term of the lease – you can’t go into the kitchen and make yourself a cup of tea! When the renter moves out, those rights return to you – that’s what should happen when granting a publisher the licence to publish your book.
Assigning, however, is like selling your house. Once the house is sold, your rights to it are gone, forever. Rights that fall into this category might include film rights, writing academic chapters in text books, anything where the genesis of the work lies with the publisher.
What about subsidiary rights, such as those granted for audio books?
Subsidiary rights are the rights a publisher gets a licence for, but is not able to do anything with themselves. They on-sells these rights, eg. French translation, audio rights, rights to a stage play, rights to do fluffy toys, etc, onto someone else. It’s fine to license subsidiary rights to a publisher, but authors need to make sure the publisher is able to do something with them, and, if they do, the author gets a fair share of the royalty (the author should always get a minimum of 50%, and often 75%). Most publishers now won’t accept a book deal unless they get at least print, ebook and audio rights, so I advise authors grant such rights for two or three years, but if the publisher hasn’t done anything with those rights within that time, the author should have the option to ask for those rights back.
There’s so much to know! I note that on your website you offer consultations to writers who just want to ask a quick question, as well as your full contract assessment and negotiation service of course. Can anyone book those?
Yes! I’ve started offering 15 and 60 minute consultancy sessions for authors. It’s not legal advice and it’s definitely not editorial advice, but it’s a chance for authors to seek strategic publishing advice based on my twenty-five years of experience in the business, and I welcome even the small questions. It doesn’t matter what it is! I appreciate that sometimes authors just want to ask a silly question and get the answer they need, rather than wading through all the general information on the internet. If that sounds like you, please don’t hesitate to get in touch! At the same time, if you have received a publishing offer or contract, my usual commercial contract review services apply.
Thank you, Alex, it’s been an absolute pleasure chatting with you!
To access any of Alex’s consultancy services, please click here or email her on alexadsett[at]alexadsett[dot]com[dot]au. She can help you understand the publishing industry, the business of publishing or a publishing contract. She can negotiate directly with your publisher for you, close a subsidiary rights deal, or review existing contracts. She’s also warm, friendly, and comes recommended by everyone who’s ever worked with her – including me!
