Licensing Your Rights

In lit sales (books and screenwriting) there is always "the sale" of the material, which is normally an outright sale, wherein a writer gets a flat or projected agreement of residuals, but loses all power to make other sales off the same material; say to TV or games, etc. Are there attempts to update the writer's rights and to license material more instead of out right "sale"? As in licensing a "Harry Potter" or "Twilight" for x-amount of films within x-amount of time, spin-offs, TV, games, toys, novelties, etc?

To limit use of material, say by a Random House, that if sales drop below a certain number the property comes back to the writer?

In reading this email what I discovered is that my response was going to be less about answering your questions and more about correcting your misinformation. Whenever we talk about signing a contract with a publisher we discuss it in terms of “selling” the book, which is really the wrong term. Except in very rare instances (writer for hire projects), an author does not sell a publisher her book, she licenses to the publisher the right for the publisher to publish her work. What additional rights the author licenses are really up to the terms of the negotiation.

If the deal made with the publisher is for World rights that means she is giving the publisher the right to act on her behalf when licensing publication rights throughout the world. In this instance the publisher and the author both share in any earnings made on those books. What the split is (whether it’s equal or the author gets a majority) depends on the publisher and the deal made. There are other variations of how the book might be sold, North American Rights for example, in which the publisher only has the right to sell the book in North America and it is up to the author (and her agent) to find other licensees to sell the book around the world. In those cases, when the author holds the rights, the Publisher does not share in any of the earnings.

The same holds true for gaming, movie, TV and any other rights you can think of. How these are handled depends on the terms of the negotiation. Typically though an author will hold on to all performance rights (TV, movie, etc.) as well as merchandising and commercial rights (calendars, games, etc.). In these cases she and her agent will approach the appropriate parties to make the “sale” and the publisher does not share in any of the earnings (other than the increase in book sales, of course).

As for your question for limiting use, this is why you want an agent: there are frequently clauses in contracts that revert the rights back to the author if a book isn’t selling over a certain period of time, and in many cases agents can add a clause into a contract reverting any licensing possibilities if the publisher has not made any sales. For example, if the publisher has not sold any foreign rights after a certain period of time, the right to sell those reverts to the author.

I hope I was able to clarify without confusing, and please don’t worry about Stephanie Meyer and JK Rowling, the two are doing quite well on every product and movie you see based on their books.

Jessica