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Contract, Clause 4

Continuing the typing of a long contract from Ballantine/Random House. This is clause 4, and only clause 4, because it's so damn long. There's not much to say here. There are a couple of clauses that were struck out after the initial phone call mentioned a ways down. Usually, this would be done by an agent's assistant and the publisher's legal department, rather than by an agent and editor. If you were doing this yourself, it would be you -- but I'm not sure if you'd be bounced to the publisher's legal department, or if poor HE would be forced to field these and pass them on. They all have to be ironed out, demonstrably, before you get the contracts to sign.

This would be, according to the sidebar italics on the contract itself, Grant of Rights.

Let me just say one thing, because I'm as usual disorganized. The contract in question was sent to an agent; the agent then quibbled some of the things in the contract, and sent it back (or requested another one). Most of these are things you could do yourself as FTN, if you thought of doing them. In fact, as FTN, you'd get the contract that my agent received, and you could then go over it with a magnifying glass (because, really, the print on this is very small, so you almost need one), and then you'd haggle over some of the things that you didn't discuss on the phone when you accepted the offer. On some rare occasions, authors have been known to walk away after a verbal deal has been struck, because of contract clauses that weren't discussed in that initial offer.

4. The Author hereby grants to the Publisher during the term of copyright, including renewals and extensions thereof in each country for which Publisher is granted rights, the following rights:

a. Exclusive right in the English language, in the United States of America, its territories and possessions*, the Philippine Republic and Canada (referred to as Publisher's "exclusive area") and non-exclusive right in all other countries except the British Commonwealth (other than Canada), the Republic of South Africa and the Irish Republic (referred to as the Publisher's "non-exclusive area") to:

*"United States of America, its territories and possessions," includes United States military installations throughout the world [this was added by the Publisher, not me or my agent, as an addendum on the side]

i. print, publish and sell the Work in book form;

ii. print, publish and sell the Work in adapted, condensed, and abridged versions and selections from the Work in anthologies and other publications of Publisher;

iii. license publication of the Work (in complete, condensed, and abridged versions) by book clubs, including affiliates of Publisher;

iv. license publication of hardcover editions (herein "hardcover license") and hardcover and softcover reprint editions by other publishers (herein "reprint editions") with approval of the Author for each such license granted, such approval not unreasonably to be withheld. The Author shall be deemed to have given approval if within 10 days after written notice Author fails to notify Publisher of disapproval;

Everything so far has been clear. To make this one a bit clearer, the publisher isn't talking about publishing these themselves -- they're talking about allowing someone else to publish them in these formats. This would be a license, and they would make the same type of money off it that I would, if I kept these rights. Later on in the contract, the payout or split (between FTN and LP) of the monies generated by these licenses will be defined; you're not required to do this for no money. Practically speaking, though, this is one of the clauses that I've never seen invoked (in my publishing history; other authors may have). In fact, for the most part, I've never seen any of these invoked <wry g>.

v. license publication of the Work (in complete, condensed, adapted or abridged versions) or selections from the Work in anthologies and other publications, in mail order and schoolbook editions, and in other special editions (herein "special editions");

vi. license publication in each country prior to book publication in each such country, in periodicals, including magazines, newspapers, and digests (herein "first serial");
[This clause was struck out; I had to initial it, which means in theory it was on the contract sent out the first time. It's hard to read the struck-out clauses, because the XXXXXXXX across the not very clear, small type is a pain, so bear with me if a word seems to be missing, those of you who can figure out what it was.]

This means we retained first serial rights. Which, for a fantasy novel, are of completely negligible value; for an SF novel, however, the value is less negligible if you're an analog writer, for instance (Bujold and Sawyer have both serialized novels in Analog). If you're selling a fantasy, and you hate this clause, it's not a deal-breaker, because the publisher/HE will also know how little value this actually has. It was struck because of the very very very lame possibilities, and on general principle. But. Well. I'm pragmatic at heart.

vii. license publication in each country after book publication in such country, in periodicals, including magazines, newspapers and digests (herein "second serial") to the extent second serial rights are available;

Ditto this one. Not struck, but why bother.

viii. publish and, subject to the Author's approval in each case, license publication of the Work (in complete, and subject to the Author's approval, in adapted, condensed and abridged versions) through microfilm, Xerox, information storage and retrieval systems, and all other non-book forms of copying or reproduction now known or hereafter developed, intended to make the Work available in visual form for reading (herein "special reproductions");

This might cover ebooks. Or might not. It doesn't have a lot of teeth, because the Author in this case can say "suck rocks". (In a case where you have say, but not really, your approval is not to be unreasonably withheld.)

ix. [Okay, I cannot read the next several clauses; I didn't initial them, so they were struck from the boilerplate at our request before the contract was sent and further niggling was done. Sorry. They would be b, c and d. I believe clause b gives Publisher the right to World licenses if FTN hasn't managed to sell them in 2 years. Clause c. refers to exclusive rights to license things as laid out in clause 4a in translation, provided the Author hasn't managed to license them on their own in 3 years. And clause d. refers to merchandising. These are things that were obviously not of huge import to them. Or me.]

e. exclusive rights to license performance rights in the Work, including dramatic, musical, radio, television, motion picture and allied rights, subject to the Author's consent. In the event of the disposition of performance rights, the Publisher may grant to the purchaser the privilege to publish excerpts and summaries of the Work in the aggregate not to exceed 7,500 words for advertising and exploiting such rights, provided, however, that such grant shall require the purchaser to take all steps which may be necessary to protect the copyright of the Work.

This is the long way of saying that we did not sell any of the struck clause's rights, but did give permission for promotional material. As if <wry g>. The strikeout was done before the contract was sent, which means it was clear when it was sent to contracts that motion pictures, etc. were not on the table.

f. All rights not expressly granted herein to Publisher are reserved to the Author.

And there you have it.

What this means is that we did not sell World rights; we sold North American rights and some non-exclusive rights of middling value; we retained all film/audio rights, and all merchandising rights, and all World rights forever. Where World inexplicably doesn't include the Philippines.

Sleeping now.


Sep. 18th, 2004 04:45 am (UTC)
Re: Foreign Rights
Yes, the author does; how much depends on the split he negotiated with the publisher (which will be in clause 11, tomorrow night .) In a standard boilerplate, it's 50/50 -- 50% for your publisher and 50%against your advance.

So unless the publisher is really marketing your book abroad you are better off trying to sell it yourself, or at least let your agent do it for you, or? But trying to sell foreign rights most be like trying to get your book published all over again. Only the competition is even more fierece.

I think that US publishers would like to be able to do this as well. Does it affect the sales of the book? For mine, there's no place to split them in three, so it would have to be pretty arbitrary, for instance.

I bet they would Most of the publishers in Sweden believe that fantasy is a dead genre these days, which means that we only have a few houses publishing fantasy. I doubt there are more than 20 books published every year, which means that those who do not read in english pretty much buys everything that is published. But you constantly hear people complaining about it, but people still buy the books. Most publishers try to find good places to cut the book, but it is not always succesfull.