The Copyright Minefield – why you as a new writer probably need an agent.

At the 2013 Natcon Convention (Natcon 52), I went to a panel on copyright.

Yes, I’m sure there were other ‘funner’ panels on at the time, but I went because, having decided to be a professional writer, I knew I needed to take up any opportunities I could in order to learn more about the business side of the trade I was entering. I also went because the talk was delivered by agent, Alex Adsett, and, having encountered her bright, smiling face previously, I thought, “If anyone can make copyright interesting she can.” And she did.

In the process, she also showed me how much you need an agent if you, as a newbie, are going to negotiate the twisty minefield that is copyright and the legal ownership and transference of intellectual property rights.

Alex’s talk started off gently (she didn’t want to scare us all away to some panel on Star Wars episode 7) – with definitions.

I like definitions.

So what is copyright? Copyright is a “bundle of rights” including the right to publish and reproduce, perform (e.g. film and stage), adapt and otherwise communicate (e.g. e-books, audio books) a work.

On top of that, copyright is automatic and free with any original, material-form work (it has to be recorded or written down – it cannot just be an idea) and the owner of the copyright is the creator of the work, unless there is some predetermined contract specifying otherwise. For example, I write policies for my work, but I do not own the copyright of those policies because my contract says they belong to the business I work for.

Easy.

Alex then pointed out that there are some exceptions to copyright and that specific allowances have been made in the law for copyrighted material to appear in the news and to be used for purposes of research/study as well as critiquing and parody/satire. She also said that, while so-called ‘insubstantial parts’ of works (a few lines here and there) may be considered acceptable use under copyright law, this is a very sketchy area of copyright law which depends much on how essential and distinctive the section taken is (i.e. the quality over the quantity) and how aggressive the owner of the copyright is at enforcing it (e.g. the ‘Kookaburra’ riff which resulted in that court case against Men at Work). Song lyrics and lines of poems are particularly troublesome in this regard, apparently, as are recipes.

Okay. Got it.

By this point I was thinking, ‘I don’t need an agent. I know what copyright is. Where do I sign?’

But then Alex got quite legal and clever and started discussing things I had either never heard of or never thought to consider. And it was then I realised I really do need an agent if I ever get a publishing contract because there are loads of tricky things to consider …

1) ‘Moral rights’

I had never even heard of these. According to Alex, they are to do with the “right to be attributed for a work you did and to not be falsely attributed for a work you didn’t do and the right for the artwork’s integrity not to be denigrated”. Or something like that. The long and the short of it is that, according to Alex, they are hard to enforce and most contracts make you waive them as a standard thing.

2) ‘Territories’

Do you want to sell world rights to one publisher or individual country and/or region rights to a number of publishers? Perhaps you want to sell UK rights, EU rights, North American rights and Commonwealth rights all separately.

You can, so long as you don’t double-up. You don’t want to sell North American rights to one publisher and Commonwealth rights to another and have them fight over who gets the rights for Canada!

Do you even know what rights would be best for ‘your book’? A good agent can help decide this. It is all very well for a house to demand “world rights” (they often do, apparently), but if they just hang onto these rights and never use them, your book could be denied a massive audience. A good agent will make sure the contract contains fail-safes to ensure full use is made of your rights (e.g. perhaps an exit-clause so that the overseas rights return to you if the publishing house does not use them within a certain timespan).

The agent will also help you with language rights.

3) ‘The duration of the contract’

Will the contract between you, the author, and the publisher last for the ‘Life of copyright’ or for a fixed span of time (e.g. 5-15 years).

Your agent can help you decide which is best for you.

‘Life of copyright’ (i.e. until 70 years after your death) is not necessarily a bad thing if the agent makes sure there is a good reversion clause in place (i.e. a way to get your rights back if things are not happening as they are supposed to for your book).

4) ‘Formats’

You are not just selling the rights to a book, but to a range of other reproduction modalities – audio books, e-books, even whether the book appears in hardcover or paperback.

Be aware that e-book publishers may attempt to buy print rights with no intention of printing the book, therefore costing you an opportunity. A good agent will be on the look-out for this.

5) Will the copyright of the work be ‘licensed’ to the publisher or ‘assigned’ outright?

Licensing is like ‘renting’ out the exclusive rights to the publisher, but you get your rights back once you part ways. If you assign (‘sell’) your rights, the publisher owns them until the terms of the contract say otherwise.

There is even a difference between a licence that is “exclusive” (most standard publishing deals have this) and “non-exclusive” (sometimes seen with short-stories where, for example, the work can appear in other “Best of” anthologies).

6) Payment – the royalties minefield.

This is really where you need an agent. There are loads of ways to be paid and you want the way that is most beneficial for you.

“Flat fee” – a one-off payment for a work without royalties. This can be either good or bad depending how the book does.

According to a masterclass I attended with Colleen Doran, when Neil Gaiman’s “Sandman” was created, the artists were offered either: higher one-off flat fees or lower advances with ongoing royalties. Those that took the royalties are still being paid today as the series turned out to be a mega-hit, whereas the ones who took the initially-larger upfront payments missed out hugely.

“Advance” – an upfront (advance) payment which then needs to be recouped by the publisher through the withholding of author royalties. Once enough royalties have been made to pay back the advance, all further royalties go to the writer/artist.

The royalties idea seems pretty straight-forward until you realise there are loads of ways of calculating it. Royalties can be calculated as a % of RRP (recommended retail price) or as a % of NR (net receipts).

This is where you need that agent. Some publishers try to convince you to take a % of NR that seems, on the face of it, to be higher than the offered % of RRP, when, in reality, the returns on, say, 15% of NR could be less than the returns on 10% of RRP (but to a newbie, 15% sounds like a better number than 10%).

Also, some publishers will try to offer lower royalty returns on subsequent editions of books. This can be okay if the print run is paperback edition five after four runs of paperbacks. It is not, however, okay on a paperback print-run (technically edition 2) done after a first edition hard-back run because buyers often wait to buy the first paperback edition for financial reasons and you don’t want to be undercut here as the author.

Another thing to be aware of is the ‘discount clause’, which is where an author’s royalties drop if a bookshop discounts them (puts them on sale). A good agent will be on the look-out for this. Alex advises that there should not be a reduction in author RRP royalties until such discounting has reached more than 55% (this is because lower-level discounting is standard and common in many bookstores). As a newbie, however, I would never have thought to consider this and this is why I need an agent.

7) ‘Reversion clauses’

Before e-books and print on demand (POD), publishers would often allow rights to revert back to authors once books went ‘out of print’. The trouble with e-books and the internet is that, technically, books are never out of print anymore.

A good agent will make sure to address this in the contract with something saying that the rights will revert back to the author once the book is no longer selling in any format.

8) ‘Subsidiary rights’

Sometimes when you sell rights to a publishing house, they will want to on-sell some aspects of these rights to other publishers and companies. These sold parts are called subsidiary rights and they can include such things as: translation rights, audio rights, statutory licencing, film rights, merchandising rights. For example, they might want to sell French language rights to a publisher in France that wants to do the translation and sell the ‘French’ version.

If possible, an author should attempt to keep as many of these subsidiary rights as possible and an agent can help with this. There can be big money in selling the film rights after the book has been successful.

A good agent can help navigate the path of subsidiary rights so you can get paid properly for them.

9) E-book only and digital first – you definitely need an agent to navigate this new minefield.

There is a new trend towards e-first and e-book-only publishing with some of the large houses opening e-only and digital-first imprints.

These tend to have no advance, but higher royalties at the back end (which sounds good, provided your book actually manages to get noticed in the millions of other e-books out there).

This is new territory for publishing as a whole, but it is also ‘shark territory’ since it can come jam-packed with all manner of potential nasties like: minimal editorial support, minimal marketing support and the inclusion of various risk-sharing clauses (e.g. the author splits the costs of book-production and marketing with the publishing house – such deals can be risky for the author if the ‘costs’ are not well-defined up-front).

There are also outright scams online. Be very careful the minute anyone asks you for money.

It is advisable to get an agent who can pick through all the contractual ins and outs.

Conclusion:

In closing, the points listed were just some of the copyright and legal stuff discussed by Alex within the constraints of an hour and I have absolutely no doubt there were hundreds of other things Alex could have warned the writerly audience to be on the look-out for when dealing with publishing contracts.

As a newbie, the basic take-home message I got from the presentation was, even if you don’t have an agent when you approach a publishing house, you should certainly look at getting one to read through any contracts on offer should one of the publishers seek to take you on.

If, as a newer writer, you ever go to a convention, I certainly advise going to talks like the one so generously offered by Alex Adsett in order to better understand the business side of the industry you are entering. As writers, it is tempting to just curl up and write and let the rest take care of itself, but in order to optimize the chances of making a living out of this industry, it pays to get the business side right.

Thanks for reading – Shauna O’Meara.

If you found my stuff useful and would like to leave a token donation for the time I took to write it, you can do so through the Paypal link opposite. All tips are most appreciated.

Disclaimer – I am not an literary agent or a lawyer. I am therefore not qualified or capable of giving advice on publishing contracts. The information contained in this blog includes generalised tips and take-home messages I got from attending a convention presentation about copyright and does not constitute legal advice on any matter of copyright law. The points made in the blog were made in the service of showing how vast this field is and how many considerations need to be taken into account and for the purposes of reiterating my personal opinion that seeking agent advice is highly advisable when signing a new contract with a publishing house.

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