Disclaimer: This article provides an overview of the basic principles of author rights in the United States. The material contained in this article is NOT legal advice, and does not create an attorney-client or other confidential relationship between the User and the Author Learning Center. Users should contact an attorney in their jurisdiction for legal advice regarding their particular situation.
Times they are a-changing. In a world of shared content and digital reproduction, it’s more important than ever to protect the authenticity of your work. If you’re armed with a law degree, navigating a sea of author rights should be smooth sailing. For the rest of us… the waters are a little choppier, and the course a little more obscured. So, to help clear the fog and make smart business decisions, we’re breaking down the basics of author rights.
In essence, copyright is a legal means of protecting creative works. These works can be literary, artistic, educational, or in musical form. As a form of intellectual property law, copyright provides exclusive publication, distribution, and usage rights for the creator. It is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself.
The short answer is no, but there’s a catch. Technically, copyright exists from the moment the work is created. Yet, registration affords authors added security. Registering for copyright creates a public record and establishes the facts of the copyright, which is usually accompanied by a certificate of registration. Additionally, registration is required in order to bring a lawsuit for infringement of a U.S. work and to be eligible for statutory damages.
Ordinarily, traditional publishers register the books they publish, but if you are self-publishing you will want to make yourself aware of the policies regarding copyright. Reputable self-publishing companies are upfront about their copyright policies and often provide helpful information or assistance with registering a book. You can also check out our article for guidance about how to file a copyright on your own.
Though the United States does not have copyright relationships with every country, they do have relations with most countries throughout the world. The U.S. Copyright office recommends reviewing the International Copyright Relations document for more information on countries and the nature of their copyright relations with the U.S.
Foreign rights are just one of the many categories of subsidiary rights that authors need to consider. Book sales in international markets can have big potential, so Trident Media Group literary agent Mark Gottlieb recommends that authors take their foreign rights seriously. According to Gottlieb, “when rights are given to the publisher, authors can lose out on a lot of revenue.” Thus, Gottlieb suggests that authors who may be interested in selling their book internationally work with a self-publishing service or publisher that is upfront about rights or helps to preserve them. Authors can also choose to work with a literary agent or agency like Trident Media Group, allowing them to sell directly to foreign publishers. Authors may want to consider researching foreign rights early in the process since opportunities to sell rights can vary by market. A few scenarios are common to foreign rights acquisition including:
In these instances, the U.S. publisher sometimes licenses the foreign rights to a third-party publisher, or publishes the book in another language through one of their own publishing arms. U.S. publishers can claim upwards of fifty percent of the proceeds from the foreign publications.
There are instances when a U.S. publisher acquires the foreign rights and they do not get sold to a foreign publisher. Instead, the foreign rights lay dormant. Though it may seem surprising, U.S. publishers can refuse to return unsold rights, choosing to hold on to them in the hopes they someday become a golden goose. As an author this can be a major frustration, and may require enlisting the help of a literary agent to get unsold rights back from a book publisher.
When a literary agent sells foreign rights for an author, the commission the literary agency takes (20%-25%) is typically much smaller than what a U.S. publisher takes. Also, if there's no unearned book advance from a U.S. publisher to apply earnings toward, payment of advances and royalties go directly to the author.
Performance rights or dramatic rights are another category of subsidiary rights that authors should be aware of. These are the rights to adapt a book for television, radio, dramatic theater, a musical, or a motion picture.
An author can attempt to adapt his or her own book to a screenplay or other format, but it is not recommended unless that author has the experience and skills to do so. If you are interested in having your book adapted to the big screen, for example, it’s often best to work through your publisher or an agent. They may have connections with studios and producers. If a studio is interested in adapting your book into a movie they may approach you with an option agreement.
An option gives temporary exclusive rights to a producer to purchase a screenplay or other form of intellectual property and make a film. For novels, the principal parties in the agreement usually include the author of a book and a movie producer, studio, or production company. It’s important to note that getting an option is not a guarantee that a movie will actually be made. It just means that the idea is being considered.
The contractual agreement will outline the option period (a start and end date for how long the producer can take to make the purchase), which is typically 12-18 months. Authors cannot discuss or enter into any other contracts with another producer or studio during this period and are paid for the right of exclusivity.
During the option period, the studio is working to find a screenwriter to adapt the book and to secure financial backing and interest. This is typically where things fall apart. If the option agreement expires before the project is approved to move forward, a producer will no longer have exclusive rights, though they may still work on the project and try to secure a movie deal. As the author, this means you now have the right to option to other producers. Your contract to option may also include the right for the producer to get an extension on the exclusive optioning rights. In these instances, the producer does not always include a payment for the extension in the contract, but it’s something to try to negotiate up front.
Most optioning contracts will typically include a purchase price for once the movie is greenlit, meaning the project is approved to go into production. This payment is usually substantially higher than the cost to option, and officially releases the book rights to the studio. It usually represents a percentage of the total budget of the movie, and includes a minimum and maximum amount.
If you don’t possess expert understanding of the publishing industry and don’t happen to speak legalese, the process of learning about and securing rights can be daunting. Consequently, Lawrence Knorr, author and founder of Sunbury Press, advises authors to be aware of the contracts they’re signing and what the documents entail. Don’t be afraid to ask for help. Knorr advises authors to consult the Authors Guild, to help make sure contracts are mutually beneficial. When signing a contract of any kind, it is recommended that you also consult a knowledgeable literary agent or attorney to avoid handing over too many rights and to make sure you get a fair deal.
Successfully navigating the persnickety world of rights can be challenging, but it’s absolutely manageable if you utilize the right resources. For more on the various rights that authors should understand, visit the Legal and Book to Screen sections of the Author Learning Center.