Know Your Rights

Alex Hardy, Harbottle and Lewis

Alex Hardy, of law firm Harbottle and Lewis, ran a workshop at London Book Fair’s Author HQ on how best to exploit your Intellectual Property Rights.

An excellent session for a maximum of eight participants, she tailored the session to our specific questions and shared her experience of publishing law. After ascertaining that seven out of eight of us were authors, she began by outlining the key pitfalls for authors when negotiating rights contracts.

The Whole Farm

One of the authors asked about the term ‘rights grab’. Alex explained the term is used to describe a publishing contract in which an author assigns or licenses much more than just the book or ebook rights in their work. For example, an author may license or assign to a publisher the copyright and related rights in their work “in all media and formats now known or hereafter invented”. Authors should instead license those rights that the publisher is committing or expecting to use.

Ask yourself why a digital-only publisher need the rights to a paperback/cartoon/film version? At best, they might sub-license the rights to your work to another party but at worst the rights will remain unexploited. And if you’ve sold the rights for merchandising to a publisher and you are offered a film deal at a later stage and the film producer wants the merchandising rights, it will be very difficult to get those rights back.

Sheep and Goats

These negotiations are very commercial so get hard-headed. Think everything through first. Publishing contracts can be quite general; spell out exactly what you are selling and specify that anything else not mentioned is excluded – this is a reservation of rights clause. Check everything is on paper. Insist on getting precise definitions such as what ‘enhanced ebooks’ actually means.

Understand Time Terminology

‘Legal term of copyright’ means your lifetime plus 70 years. Always try for shorter licence period if appropriate and ensure you can get out of the contract (terminate) if something goes wrong. A termination of contract clause, with an acceptable notice period for both sides is essential.

Get Them Back

In such case as the publisher’s routes are no longer selling your work, you may want to get your rights back. You will likely need a reversion of rights clause in your contract: in an electronic era, the phrase ‘out of print’ may no longer be relevant. It may be better to negotiate a sales figure to trigger reversion of your rights: such as how many (or how few) copies are sold in a year.

And what happens if the publisher goes bust/gets taken over or merges? Have a clause covering those eventualities, aiming to put the control back in your hands.

See You In Court

One of the party enquired about libel. His book refers to real figures in a fictional context, so is the disclaimer at the beginning enough? Names, characters, businesses, places, events and incidents are either the products of the author’s imagination or used in a fictitious manner. Any resemblance to actual persons, living or dead, or actual events is purely coincidental. Disclaimers may make no difference whatsoever. If the person is recognisable (even if not named), a claim may still be brought against you for damage to their reputation.

Most large publishing companies have media liability insurance in the event of these kind of claims – check yours does. If you are a small publisher, consider consulting a broker. Some of Alex’s clients have used La Playa.

Accusations of plagiarism can arise, particularly in non-fiction or ‘How To’ books. They rarely reach court but it is vital to document and acknowledge your sources to show how you have created your material. The Society of Authors provides helpful advice on quoting copyrighted material, but there are grey areas. One area which is clear is claiming false association with another author’s work. Avoid that or face the consequences.

Options and exclusivity

If you are writing in various genres, be careful with granting your publisher an automatic option to your next work. Publishers may add an option clause to the contract, entitling them to buy or at least have the first option to negotiate for the next work in your canon. One idea is to reword this clause so it includes only the same kind of work, ie, the next in the series of your romance novels, but not the collection of erotic short stories.

Agent or lawyer

I asked Alex whether an author actually needs an agent at all. If you have a foreign publisher interested in translation or a production company keen to purchase TV/film rights, would it make sense to hire a lawyer to deal with the contract instead? Acknowledging her bias, she said there are many differences between the two roles, the main one being legal training. Agents’ expertise offers contacts and experience. A lawyer will charge a one-off fee, as opposed to the ongoing commission charged by agents.

She also mentioned working with foreign rights. If it is important to the author, you should ask for approval of the translator – see their CV, get samples of their work – and where possible, make sure the copyright of their translation belongs to you as originator of the material.

A fascinating, thought-provoking session with a genuinely knowledgeable expert.

By JJ Marsh – author, reader, Triskelite, journalist, Nuancer, reviewer and blogger. 
Likes: pugs, Werner Herzog and anchovies. Dislikes: meat, chocolate and first drafts.