I’ve got an hour and a half before I leave for a conference (it’s been a crazy travel month), and suddenly realized that I hadn’t posted my monthly Magical Words blog. Bad agent. No cookie. So herewith, a never-before-been-posted but previously published article from the SFWA Bulletin on Subrights. I hope you enjoy!
S-S-Subrights…. If you’ve been following my Agent Anonymous articles, you know that I have a demented little DJ in my head, constantly spinning twisted tunes. For some reason, when I was asked to write about subrights, David Bowie started singing (imagine Ch-ch-changes instead and you’ll get what I’m playing at). But the whole thing falls apart at the line, “Don’t want to be a richer man.”
My agently heart quails at the very thought. Perhaps glam rockers don’t have to worry about such things as finances, but the rest of us, well, we’re down here hanging with the other mortals, obsessing about death and taxes. Now, we’ve already talked about negotiations in a broader sense (earlier article), so let’s narrow in on subsidiary rights.
What are subsidiary rights, you ask? (That’s right, you, in the back, with the fedora.) Subsidiary rights, or subrights, as they’re commonly referred to, are any rights which can be exploited separately from the initial print publication. For example:
-first serial: the right to publish the work or parts of it before initial volume publication, generally in serial form in a magazine like Analog or The Magazine of Fantasy and Science Fiction
-second serial: the same right after initial publication of the work
-book club: the right to license the work to, say, The Science Fiction Book Club
-anthology and selection: use of the work or part of it in a collection with other works, may include condensations, adaptations or abridgements
-large print: self-explanatory
-photonovel or picture book edition: comic or graphic novel adaptation or combining the book with photos as from a motion picture or television series
-publication in the English language in the schedule A Countries: the right to license publication in the United Kingdom, Australia, Kenya, New Zealand… (basically, territories that are or were associated with the UK and are generally part of any separate license of rights there)
-publication in Canada: self-explanatory
-translation rights: the right to license translations of the work in other languages
-motion picture, television, radio and dramatic rights: self-explanatory
-commercial adaptations and tie-ins: the right to license others to play in your world; generally goes along with motion picture, television and allied rights
-electronic text rights: e-books
-audiovisual/multimedia rights: not straight text rights, but books with audiovisual enhancements or multimedia components
-audio recordings: the right to record audio forms of the book; this right might be further clarified to “dramatic” or “non-dramatic” audio, abridged or unabridged, exclusive or non-exclusive, physical copy or digital downloads….
Whew, that’s a lot to think about. Now, almost anything is negotiable, but there are some rights that US publishers generally hang onto with both hands, like second serial, book club, large print, anthology, Canadian, and e-book rights. There’s been an increasing push for them to acquire other rights as well, like audio and world (the right to publish or license publication in all languages and countries/territories). Everything has to be considered in the full context of an offer, of course, and a publisher may make you an offer you just can’t refuse to entice you to grant them as many rights as possible. However, if that’s not the case, if it makes more financial sense to hold onto certain rights, like film, television, translation, etc., then it’s worth fighting for. When a publisher sells rights on your behalf, you do get a cut, of course, but it’s generally a smaller percentage than you would receive selling the rights directly (or rather with the aid of an agent, because it’s rare that an author will have the contacts to exploit various rights on their own). Also, subrights income is accounted against the advance, which has to earn out before any money above and beyond flows to the author. When you sell rights directly, you a) have more control over the terms of the deal and who your work sells to, b) receive more of the income more quickly and c) receive copies of translations or other formats of your work, which frequently doesn’t happen when the rights are sold via the publisher. I know authors who have been “saved” by subrights income arriving at just the right time and who’ve made exponentially more with subsidiary rights sales than they did on the initial contract. Does this always happen? Of course not. It’s a gamble. A lot depends on the nature of the work, who will be more aggressive marketing it—the agent or the publisher’s subrights team—the state of the market at the time, what kind of clout you have in a negotiation….
If you do grant your subsidiary rights to the publisher (and again, it’s a guarantee there will be some subsidiary rights included in the contract), there are still a few things to think about:
-Percentages: What percentage of the license/royalties are payable to the Author? A fifty percent split is standard for most, but not all rights (for example, translation, English language publication in the Schedule A Countries, film, television, etc.). Your split may be negotiable.
-Right of approval: Often there’s language after any insertion of approval something to the effect that it’s “not to be unreasonably withheld or delayed,” which mitigates the usefulness somewhat. Likewise, a right of consultation will probably indicate that “it is understood that this is a right of consultation, not approval, and that in the event of a dispute the Publisher shall prevail.” In other words, the notification, etc., is more of a courtesy. However, if nothing else, it assures that you’ll hear about the terms of any offer before it is accepted so that you have input and can keep track of when payments from such licenses should appear on your royalty statements. It’s also important so that down the line when rights revert you know what has already been sold and where.
Now how about if you hold onto subsidiary rights? It’s going to be difficult to market your own rights if you don’t have an agent with a network of co- and subagents they work with to place your work in various formats and markets. While agents will handle some subsidiary rights deals, like audio, directly, generally they work with agents who specialize in other fields, like film and television, to negotiate within their areas of expertise. Have you ever heard the expression “jack of all trades, master of none”? I believe in this one hundred percent. I’m very familiar with the editors in my field and have worked out boilerplates with all the major publishers, but I don’t know all the players in Hollywood. Can I handle any deal that comes to me with the help of an entertainment lawyer? Yes. But can I make sure that the work gets into the right film person’s hands to begin with and receives all of the serious consideration it deserves? No. I count on the film and television agents I work with for that. I say agents because I work with more than one, depending on who’s right for and most enthusiastic about a particular author. In the translation markets, I work exclusively with one particular agent, just as authors work domestically with one particular agent. I provide those agents with copies, blurbs, quote sheets, bestseller lists, awards updates…in short, everything they’ll need to put together an attractive submissions package for the publishers they work with. In addition, I provide highlights lists before the major book fairs, which I also attend when scheduling allows so that I can meet with them and with various overseas publishers in person.
Just as you want to know the terms when your publisher makes a sale for your work, it’s important that your agent keep you apprised of offers and discuss terms. I’m not sure if it continues, but I know that in the past some agencies have signed subsidiary rights deals on behalf of their authors. My two cents: I think it’s very important for authors to sign their own agreements so that they are party to the grant of their own work. Also, it assures that authors will see all the terms and can keep copies of the agreements, which they should receive in any case once they’re fully-executed.
In “Don’t go Breaking my Heart,” my earlier article about breaking up with your agent (June-July 2009 Bulletin), I addressed industry standards for what happens with subsidiary rights if you leave your agent or if your domestic contract terminates, but I’ll touch on it again here. The standard is that an agent will continue to represent subsidiary rights for any book he or she sold for the term of the original contract, unless other arrangements are agreed to by all parties in writing. This means that even if you leave the agent, he or she will still have the right to negotiate deals for film, television, etc. until the rights in your original contract revert to you. If you’re with the same agent when rights revert, nothing changes. If you’ve moved on and want your subrights to move when your titles revert, it’s important to alert the former agent at that time.
Well, there you have it – your subrights primer. For some reason, I’m now in the mood for Labyrinth. (And really, how many times in your life can you say that?) Must be the Bowie thing.