I was talking to a savvy writer last week about a new contract he had signed. He and his agent had fought to control certain subsidiary rights that had not been a problem in the past, but the publisher flatly refused. In the end, when the publisher indicated they intended to exploit those rights, not just sit on them for “someday”, the deal was done.
This increasing demand for a broad grant of rights still unsettles me, I have to be honest. Chris Anderson of Wired spoke to a writer’s conference I attended several years ago about the rise of the Long Tail in publishing. I couldn’t get his words out of my mind: publishers think short tail (how many copies of this book can we sell right away before we go on to the next book?). Writers were entering a digital world where they needed to think long tail (how many copies of this book can I sell forever?). The answer was to limit the rights sold (or, more technically, licensed) and/or limit the term of the license. One day this may happen. But right now, publishers want control over those rights (contracts typically have some form of …and any format to be invented in the future…clause. Which would be fine if they had a plan to exploit those rights. If. If, instead, publishers are still thinking short tail for most books, licensing those rights is like burying your book’s long tail in a ten foot deep grave.
When I first began writing short stories, it was typical to sell FNASR (First North American Serial Rights). That meant you allowed the magazine publisher to print your story first. After that, you could submit to an anthology, or another magazine interested in reprint rights. You could also submit to a U.K. or Australian market (not Canada, as they are in North America). A smart writer could make good money with one popular short story.
Novels were different. Then. When I contracted my historical romance series with Kensington in 1999, I granted subsidiary rights without a qualm. What was I going to do with them, after all? Kensington sold one volume into Polish and one into the Brazilian market. I considered it a surprise bonus. Looking back, I can see my horrible tadpole ignorance in play. Even though I loved science fiction and hoped the rise of technology would change the world, I could not see how those long tail rights I so blithely signed away might one day be of value to me. When I did see that smaller niche publishers and epublishers were beginning to look for backlist to reprint, I started to explore just how big a mistake I had made, and whether it was fixable.
I was lucky. My contracts all had an out-of-print clause. It took me some time to get those rights reverted (my agent — not the agent who had represented the contract, had to send a letter after the letter I sent was ignored). They only reverted 5 (the full reversion period had not been fulfilled for the last two and I had to re-apply for reversion in the spring of 2011). I went forward epublishing my backlist, hoping Kensington wouldn’t decide to put the last two in digital form (this would have been an unhappy headache, as I took the opportunity to add scenes, and revise the books to my satisfaction). Happily, I had reversion letters for all 7 of my historical romance novels by the end of 2011, and the last one should be available next month. The long tail rights for those books are back in my hands, at last.
In my research on what to do with those rights, I’ve been astonished to see the choices out there for a writer looking to exploit backlist rights. For paranormal genre novels, Manga is a hungry market; for children’s books, the app market is exploding; for historical novels, Wolf Hall has an enhanced ebook app that demonstrates just what can be done. Not every model works for every book, of course. But if the publisher controls those rights, the writer cannot exercise them without a lot of begging, pleading, demanding, and deal-making.
This may sound okay to many writers when they sign the publishing contract, looking only at the advance. After all, it takes work and cash investment for some of these new media innovations. Better to let the publisher decide on the wisdom of pursuing them — not to mention shoulder the risk.
That’s short tail thinking that fails to take into account the fact that publishers and writers have different scales for profitability. Take ebooks, for example. I have my backlist up at a $4.99 price point (except for the first book in the series The Fairy Tale Bride, which is on a 99 cents wedding sale until after my daughter’s wedding in late summer). This gives me a nice monthly income (and a total income from the sale of 6 of the books that exceeds the advance and royalties I received for all 7 books the first time around). But to traditional publishers, my paltry profit (there are expenses to pay, and a publisher’s overhead is great than a single author’s overhead) is not worth moving their pinky fingers. Short tail thinking (although publishers are starting to count up the peanuts and multiply by years — but they’re doing so with $10 and $14 price points).
Here’s how short tail thinking has hurt me in contract negotiations: for my series of witch-cheerleader YA books (The Salem Witch Tryouts, Competition’s a Witch, She’s a Witch Girl), Simon & Schuster wanted control of the film rights. My agency wanted those rights and fought hard for them, but could not get them. As a result, I did have an option with Sony for two years. Sounds great, if you’re only thinking short tail. Decent money, but very small chance of getting a movie made. During the time period where the rights were tied up with Sony, I received inquiries from smaller movie companies interested in options. I referred all of these people to my publisher, who controlled the rights. But I knew that S&S wasn’t going to look at a small company offering a small option. After all, there are only so many Twilights, right? Sigh. Perhaps, if my agency had managed to keep control of those rights, the story could have ended the same way, with no movie or TV show ever made. But I’m guessing the unexpected success of the Twilight franchise may have changed the odds on that one. For anyone thinking long tail and willing to add up video rental, book tie-in, merchandising product income, over years instead of weeks.
In this new digital world, a book’s rights are like water rights in Nevada a hundred years ago. Whoever controls them, wins the long tail. Do your research. There are many thoughtful pieces being written on this subject. Know what your walk away line is before you begin negotiations. It is more important than ever.
A few (there are so many more — if comments add links to good contract watchdog articles, I’ll add them here) contract traps to watch for: