Answers to questions often asked of rights professionals
The Language of Rights Acquiring Rights (“Rights In”) Selling Rights (“Rights Out”) Rights Best Practices
The Language of Rights
Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. In copyright law, there are a lot of different types of works, including books, paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, poems, blog posts, movies, architectural works, and plays.
The processes used to acquire and manage rights to works, including whole works or permission to use part of a work, are collectively referred to as "rights in."
The processes used to sell, license, or manage rights to works, including whole works or permission to use part of a work, are collectively referred to as "rights out."
The types and nature of rights are constantly evolving. The list of potential rights, which is not intended to be exhaustive, includes:
- Large print
- Book club
- Co-edition, co-publishing
- Digital adaptations
- Dramatic TV, Film
- Commercial/ Merchandising/Brand
- Adaptations for comic books/graphic novels
- E-book (static or enhanced)
- Education school/ classroom use (coursepack)
- Paperback and hardcover reprint (in the publisher’s own territory)
- English language not US
- Translation rights
- Electronic database
Subrights refers to the set of rights that are subsidiary to the primary publication of a work. Examples could include any of the items noted in the previous answer.
An agreement that establishes the right to publish a work exclusively for a set period of time, or in a specified territory or a particular language, ensuring it is not published elsewhere in the same way at the same time time, is said to be an exclusive right.
Rights that can be exploited by more than one party in the same territory, time period, or language are considered to be non-exclusive rights.
"First serial" conveys the right to publish, in a magazine or newspaper, an excerpt from the book prior book’s publication date; usually licensed on exclusive basis. Who controls these rights is a point of negotiation between author/agent and editor/publisher. If granted to publisher in the author contract, the publisher's rights department will typically handle the sale. The impact of a first serial excerpt is often a component in the publicity and marketing ‘launch’ of a title. In some publishing houses, the Publicity Department will handle first serial rights in lieu of the rights department. "Second serial" conveys the right to publish, in a magazine or newspaper, an excerpt from the book on or after the book’s publication date. This right is usually licensed on a non-exclusive basis (meaning more than one newspaper or magazine can have the right to publish an excerpt – although often different sections of text and/or different dates for excerpt release are negotiated.) An author contract with publisher typically grants second serial rights to the publisher.
A license is the mechanism by which rights in a particular work are granted by one party (the entity that owns or controls the rights being granted) to another (the entity that wishes to make use of the rights), usually encapsulated in a written agreement. A license can be agreed on an exclusive or non-exclusive basis and does not have to involve financial consideration.
As part of an agreement, the party acquiring rights may agree to pay a rightsholder a sum of money in advance of royalties earned under and agreement. The payments are referred to as an advance. An advance may be structured as a series of payments tied to specific actions ("upon signing an agreement", "upon delivery of a full manuscript", "upon acceptance of that manuscript by the publisher", and "upon publication" are common triggers for payments of advances). The advance is recouped or earned out, once royalties from sales exceed the value of the advance(s) that have been paid (see "What are royalty rates?", below).
An agreement is any understanding or arrangement reached between two or more parties. A contract is a specific type of agreement that, by its terms and elements, is legally binding and enforceable in a court of law.
A contract may specify a royalty rate, which may be expressed as a percentage of the sales price or a percentage of the net amount received by the publisher for a book, that a rightsholder will receive for books sold as part of a licensing agreement. Royalties received may be applied toward any advances agreed to as part of the publishing agreement, up to the point at which the amount of the advance is fully earned out. At this point, future royalties are paid to the rightsholder under agreed terms.
Rights agreements can be limited to a specific geographic market. A territory can include any country or region or groups of countries/regions recognized under international law. Examples of how territories might be defined include "The United States, Canada and Dependencies", "World excluding North America", "The European Economic Area" etc. In specifying a region, care should be taken to confirm agreement around the countries included in the described area.
Reprint rights convey the right to publish a book in a secondary format, such as trade paperback or mass market paperback. Hardcover editions may also be licensed in specific versions agreed upon by the rightsholder and the licensee.
Books are sold in multiple markets, including trade (retail), mass market (often as a less-expensive format), book clubs, and more. Each of these markets may be referred to as a channel, a specific way of delivering a book to a set of readers.
Books originally published in one language may be translated to other languages. An agreement to translate a work is in itself a sale of rights. The ability to publish a work in a given language may be "worldwide", without territorial restrictions, or it may be limited by territory or in other ways.
Use of copyrighted material in another work may require permission from the rightsholder or a representative. In publishing a work that quotes material from other sources, the author or the publisher may seek permission from the other sources. Permission may be granted with or without compensation, or permission may be withheld. Rules on when permissions are required can be complicated. For further information, consider the guidance provided by the U.S. Copyright Office.
The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it.
There are four common ways that works arrive in the public domain: the copyright has expired; the copyright owner failed to follow copyright renewal rules (not applicable for many non-U.S. works); the copyright owner deliberately places it in the public domain, known as “dedication;” or copyright law does not protect a type of work.
Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.
Section 107 calls for consideration of four factors in evaluating a question of fair use: Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; nature of the copyrighted work; amount and substantiality of the portion used in relation to the copyrighted work as a whole; and effect of the use upon the potential market for or value of the copyrighted work.
Despite these four factors, it is important to note that fair use is not clearly defined. It is typically used as a defense against third-party claims, including instances in which permissions were not sought. The relevance of a fair-use claim is tested only when someone makes a claim that a right has been violated. For more information, consider the U.S. Government Fair Use Index as a resource.
Acquiring Rights (“Rights In”)
The author contract is the guiding document. If you didn't create the content, you need a contract or agreement, including permissions, giving you rights to use it.
Start with the publisher of the work you want to acquire. Check their website for “subsidiary rights” or “international rights” contact information. If the rights are held by the author’s agent rather than the publisher, the publisher should be able to direct you to that person/agency.
Export is the selling of physical or digital copies of one’s own edition outside of one’s home territory (i.e., I’m an American publisher and I sell copies of my American edition to retailers in the UK, Canada, Europe, etc.). I am the publisher, and am selling copies of my edition. Rights licensing grants rights to another publisher to publish their own edition (i.e., I’m an American publisher and I make an agreement with a UK publisher to publish their own English-language edition within the UK; or I make an agreement with a German publisher to publish a German-language edition). I am not the publisher of this edition--I have licensed rights to another party.
Fair use guidelines are not black and white and rights holders’ policies often differ. If you’re questioning whether something may fall under fair use, it’s best to err on the side of caution and seek permission or consult with an intellectual property attorney. Additionally, even brief quotes will likely not be considered fair use if used in a standalone way, in a derivative work, or on a commercial product.
No. The cost for permission (including permissions that might be granted on a gratis basis) is not determined by the type of organization (i.e., commercial vs educational) making the request for permission. The grant for permission to re-use the material will take into account the portion of the work being used (how much of the work is being used, how many copies of the material will be distributed), the kind of extract (text, image, audio) being used, the type of use (classroom, commercial, print, online, etc.), and where it will be used (i.e., in the U.S. or in the U.K., in English, or in translation).
I’m about to publish a novel and want to include a poem at the beginning. The poet and I are friends and she said I can use her poem for free. Is her permission all I need?
Not necessarily. While it’s great to have her blessing and the copyright may be in her name, she may not retain permission licensing rights - or, in other words, she may not be contractually authorized to grant you permission to reprint her published work. You should submit a request to the publisher to make sure you have formal permission to proceed.
Selling Rights (“Rights Out”)
Whatever you own; be sure you own it.
The basic terms typically include territory, channels or markets, duration, language, compensation (advances, fees, and/or royalties), formats, and any subrights granted.
If an author has previous works, check whether (and by whom) those works were published abroad, and find out whether the author/proprietor was happy with those publishers. In addition to submitting to the publishers that acquired previous works by an author, you may want to consider publishers who’ve published “comps,” i.e. works that are similar in genre/style/content to your book. If your book is in a specific category (dystopian science fiction, highly-illustrated cookbook, etc.), check online booksellers in your target country for publishers that have titles on those genre-specific bestseller lists.
I'm in editorial and my author wants her book translated into a specific language. What's the best way to make that happen?
Ask the author for notes on why the specific language/territory is desirable (Does the author speak that language or have meaningful connections to that country/territory? If the author could participate in publicity in that market, that can be helpful. Has the author been published in that language/territory before? If not, does the author have thoughts on appropriate publishers in that market? For specialist titles, that can be helpful information.) If translation rights are controlled by the publisher, this information from the author should be passed to the subsidiary rights department. If translation rights were reserved to the author, the author should share the same information with their agent.
Not necessarily, but it may be helpful for a number of reasons. First, if you are unfamiliar with the market a sub-agent can provide insight into reasonable deal terms for their territory. They will have more familiarity with local publishers, and may therefore know which houses are more reputable/appropriate for your book. They can help make sure that royalties are accounted timely/correctly, and ensure that you receive copies of the local publisher’s edition when published.
Physical formats, digital formats, streaming, and other delivery methods may be accounted for in different ways. Publishers may maintain their own audiobook production capabilities, or they may contract with others to create and publish these products.
The answer depends on the contract with the author, which will specify the share of subrights income that goes to the author and stays with the publisher. The share varies by the subrights in question. If a subagent is involved in a sale, the subagent typically would retain their percentage before any revenue is shared.
Whereas a sub-agent is hired by the [American] rights seller to represent them in a foreign market, a scout is hired by foreign publishers to provide information about the [American] market. A sub-agent will work to make sure that they have good relationships with publishers in their territory, but their primary responsibility is to the rights seller whom they represent, to make sure that they get the best deal with the best publisher for each book/author. A scout will work to make sure that they have good relationships with rights-sellers, but their primary responsibility is to their international clients, to make sure that those publishers are aware of any books that might be of interest, and to try to obtain material for their consideration, and/or advocate for their clients in competitive situations.
Rights Best Practices
Most advance payments are determined by taking into consideration the number of copies a publisher intends to print in their first print run, their intended selling price, and the royalty percentage offered for each format. An exception may be when a title is of interest to more than one publisher in a territory, in which case the rights-holder or their sub-agent may hold an auction, the culmination of which may be an advance that has little relationship to any calculations.
Basic terms to be covered in any contract include territory, channels or markets, duration, language, compensation (advance, fee, and/or royalties), formats, and any subrights granted.
How can I protect my content while marketing to solicit rights sales? Can I send a digital manuscript to a publisher that has expressed interest?
Yes, provided that you know them to be a legitimate business. It is recommended that you watermark material that is submitted digitally. Vetting potential representatives, securing files, and obtaining agreements that protect your files are all considered prudent practices.
Check their website and ask them for a list of titles they have published in translation. If possible, contact the original publisher or agent of some of those titles to verify that the contract was signed and advance paid in a timely fashion, and that the foreign publisher sent the required sample copies, royalty statements, etc.
While BISG can’t provide advice on price, components of value include the number of copies involved, the audience for an excerpted component, and the cost of creating the content if not licensed.
Attending a book fair is highly recommended if you are interested in licensing or exporting your books abroad, and/or if you are interested in finding international titles to publish. The Frankfurt (October) and London (typically April) Book Fairs have traditionally focused on adult titles (although an increasing number of children’s publishers have been participating in these), whereas the Bologna Book Fair (March or April) is focused on children’s titles (picture books, middle grade, young adult).
Generally, no. First, this is usually not advisable, as the foreign publisher has the expertise and connections to know which translator is best suited to a project. And second, since the foreign publisher pays for the translation, they generally make the final decision regarding the translator--although the rightsholder/author may be permitted to propose a translator for consideration by the foreign publisher.