Category Archives: Publication Contracts

Independent Publisher’s Lawsuit Against Audible Fails, Highlighting Challenges to Receive Fair Streaming Compensation

Posted February 21, 2025

Last November, we covered a case where a group of authors complained about McGraw Hill’s interpretation of publishing agreements related to compensation for ebooks. As subscription-based models become increasingly dominant in the publishing industry, authors must be vigilant about how their contracts define compensation. Platforms like Kindle Unlimited, Audible, and academic ebook services are reshaping traditional royalty structures. This is not just a concern for trade books; academic publishing is also shifting towards subscription-based access, as evidenced by ProQuest’s recent announcement that it is ending print sales and moving toward a “Netflix for books” model.

Here we see yet another case where ambiguous contractual terms resulted in financial loss for an author—

On Feb. 19th, the Second Circuit affirmed the lower court’s dismissal of Teri Woods Publishing’s copyright infringement and breach-of-contract claims against Audible and other audiobook distributors in Teri Woods Publ’g, LLC v. Amazon.com, Inc. The Plaintiff initially granted the rights (that are the subject of this dispute) to Urban Audios in a licensing agreement. Thereafter, Urban Audio granted the rights under that agreement to Blackstone, which then sublicensed its rights to Amazon and Audible.

The Plaintiff in this case, Teri Woods Publishing, is an independent publisher founded by urban fiction author Teri Woods. The Plaintiff argued—and the courts ultimately disagreed—that the licensing agreement did not unambiguously permit Defendants to distribute Teri Woods’ audiobooks through the Defendants’ online audiobook streaming subscription services. More specifically, on the question of compensation for online streaming, Plaintiff and Defendants disagreed on whether (1) online streaming counted as “internet downloads” or alternatively “other contrivances, appliances, mediums and means,” and (2) the licensing terms dealing with royalties prohibit subscription streaming.

The licensing terms in question are contained in the licensing agreement Plaintiff entered into in 2018, granting Urban Audios the

“exclusive unabridged audio publishing rights, to manufacture, market, sell and distribute copies throughout the World, and in all markets, copies of unabridged readings of the [Licensed Works] on cassette, CD, MP3-CD, pre-loaded devices, as Internet downloads and on, and in, other contrivances, appliances, mediums and means (now known and hereafter developed) which are capable of emitting sounds derived for the recording of audiobooks.”

In exchange of this assignment of rights, Urban Audio—as the Licensee—must pay Plaintiff:

“(a) Ten percent (10%) of Licensee’s net receipts from catalog, wholesale and other retail sales and rentals of the audio recordings of said literary work;

(b) Twenty Five percent (25%) of net receipts on all internet downloads of said literary work.

In case you are not familiar with the services Amazon Audible provides: members of Audible generally pay a monthly fee to digitally stream or download audiobooks, instead of making any specific payment for the specific audiobooks they are streaming or downloading. This method of distribution, the Plaintiff argues, led to drastically lower compensation than expected, as the audiobooks were made available to subscribers at a fraction of their retail price.

Audible has a history of relying on ambiguous contractual terms to reduce author payouts. The “Audiblegate” controversy, for instance, exposed how Audible’s return policy allowed listeners to return audiobooks after extensive use, deducting royalties from authors without transparency. That practice came under legal scrutiny inn Golden Unicorn Enters. v. Audible Inc., where authors alleged that Audible deliberately structured its payment model to significantly reduce their earnings (unfortunately, the court in that case also largely sided with Audible)

Despite Audible’s track record, the courts were unsympathetic to Plaintiff’s grievance in the Teri Woods case, and held that the plain meaning of the phrase “other contrivances, appliances, mediums and means (now known and hereafter developed)” in the licensing agreement included digital streams and other future technological developments in distribution services. The courts also observed that the underlying licensing agreement did not provide for the payment of royalties on a per-unit basis; Plaintiff was only entitled to a percentage of “net receipts” received by Urban Audio for sales, rentals, and internet downloads.

The ambiguity in defining what constitutes an “internet download,” and whether payment was due on a per unit basis, ultimately were interpreted in favor of Audible. This case serves to remind us again of the importance of adopting clear contractual language.

Licensing agreements should be drafted with clear and precise language regarding revenue models and payment structures. Subscription-based compensation models, like those employed by Audible, fundamentally differ from traditional sales models, often leading to lower per-unit earnings for authors. By failing to anticipate and address these nuances, authors risk losing control over how their works are monetized. Ensuring that rights, distribution methods, and payment structures are clearly defined can prevent disputes and financial losses down the line.

Many authors assume that digital rights are similar to traditional print rights, but as this case demonstrates, vague phrasing can allow distributors to exploit gaps in understanding. If authors do not explicitly outline limitations on emerging distribution technologies, they may find themselves receiving significantly less compensation than they anticipate when signing the agreement. For example, authors should ensure their contracts specify whether subscription-based revenue falls under traditional royalty calculations, and whether distribution via new technological formats require renegotiation. Beyond the issues with ambiguous contractual terms, this case also highlights the broader issue of how digital platforms can negatively impact readers and authors alike. Readers no longer own the books they purchase; instead, they receive licensed access that can be revoked or restricted at any time. This shift undermines the traditional relationship between books and their readers. Authors are equally threatened by these digital intermediaries, who have the power to dictate distribution methods and unilaterally alter revenue models; an author’s right to fair compensation is too often sacrificed along the way. The situation is especially dire with audiobooks, where Audible dominates the market.

Authors Alliance and SPARC Supporting Legal Pathways to Open Access for Scholarly Works

Posted August 27, 2024

Authors Alliance and SPARC are excited to announce a new collaboration to address critical legal issues surrounding open access to scholarly publications.

One of our goals with this project is to clarify legal pathways to open access in support of federal agencies working to comply with the Memorandum on “Ensuring Free, Immediate, and Equitable Access to Federally Funded Research,” (the “Nelson Memo”) which was issued by the White House’s Office of Science and Technology Policy in 2022. For more than a decade, federal open access policy was based on an earlier memo instructing federal agencies with research and development budgets over $100 million to make their grant-funded research publicly accessible for free online. The Nelson Memo, drawing from lessons learned during the COVID-19 Pandemic, provides important updates to the prior policy. Among the key changes are extending the requirements to all agencies, regardless of budget, and eliminating the 12-month post-publication embargo period on articles.

The Nelson Memo raises important legal questions for agencies, universities, and individual researchers to consider. To help ensure smooth implementation of the Nelson Memo, we plan to produce a series of white papers addressing these questions. For example, a central issue is the nature and extent of the pre-existing license, known as the “Federal Purpose License,” which all federal grant-making agencies have in works produced using federal funds. The white papers will outline the background and history of the License, and also address commonly raised questions, including whether the License would support the application of Creative Commons or other public licenses; possible constitutional or statutory obstacles to the use of the License for public access; whether the License may apply to all versions of a work; and whether the use of the License for public access would require modification of university intellectual property policies.

In addition to the white paper series, we plan to convene a group of experts to update the SPARC Author Addendum. The Addendum was created in 2007 and has been an extremely useful tool in educating authors on how to retain their rights, both to provide open access to their scholarship and to allow for wide use of their work. However, in the nearly two decades since its creation, models for open access and scholarly publishing have changed dramatically. We aim to update the Addendum to more closely reflect the present open access landscape and to help authors to better achieve their scholarship goals.

A final piece of the project is to develop a framework for universities looking to recover rights for faculty in their works, particularly backlist and out-of-print books that are unavailable in electronic form. Though the open access movement has made significant strides in advancing free availability and reuse of scholarly articles, that progress has generally not extended to books and other monographic works, in part because of the non-standard and often complicated nature of book publishing licenses. It has also not done as much to open backfile access to older journal articles. We think a framework for identifying opportunities to recover rights and relicense them under an open access license will help advance open access of these works.

The project will be spearheaded by Eric Harbeson, who joined the Authors Alliance this week as Scholarly Publications Legal Fellow. Eric is a recent graduate of the University of Oregon School of Law. Prior to law school, Eric had a dual career as a librarian/archivist and a musicologist. Eric did extensive work advocating for libraries’ and archives’ copyright interests, especially with respect to preservation of music and sound recordings. Eric’s publications include a well-regarded report on the Music Modernization Act, as well as two scholarly music editions. Eric can be reached at eric@authorsalliance.org.

Read your open access publishing agreements, or: how you might accidentally give Elsevier or Wiley the exclusive right to profit from your OA article

Posted June 5, 2023

Reading publishing agreements–even for short academic articles–can be extremely time consuming. For many academic publishers, you’ll find an array of information about your rights and obligations as an author, often spread across multiple websites and guides, in addition to the publishing contract itself. It’s tempting to just assume that these terms are standard and reasonable. For open access publications, I’ve unfortunately found this attitude to be especially prevalent because authors tend to think that by publishing on an OA basis, the only contract terms that really matter are those of the Creative Commons license they choose for their article.

That can be a dangerous strategy. Elsevier and Wiley OA publishing agreements, which have long-standing issues along these lines as noted here, here, here, and here, highlight the problem really well.

Those publishing agreements do provide what many authors want in OA publishing–free online access and broad reuse rights to users. But, if authors select the wrong option, they are also giving away their own residual rights while granting Elsevier or Wiley the exclusive right to commercially exploit their work. That includes the right for those publishers to exclude the author herself from making or authorizing even the most basic of commercial uses, such as posting the article to a for-profit repository like Researchgate or even SSRN. This is not a result I think most authors intend, but it’s hard to spot the problem unless you read these publication agreements carefully.

Let’s dig into the agreements to understand what’s going on.

CC License Restrictions and Some Thoughts on Why Authors Choose Them

First, a quick primer on open access licensing (you can read a longer introduction and overview of open access in our dedicated guide on the topic). Just about every major academic publisher now offers some option to make your scholarly article available open access. I won’t get into the debate about what exactly constitutes “open access.” I think its sufficient to say that for most authors, “open access” means at minimum free online access to the work combined with some grant of permissive reuse rights to readers. While there are some exceptions, Creative Commons licenses have emerged as the defacto default legal infrastructure through which those reuse rights are granted.

Creative Commons licenses give rightsholders a number of options to exercise control over their work even while freely distributing it. The most common and basic CC license, CC-BY, does so by allowing basically all types of reuse (copying, commercial distribution, creation of derivative works) on the condition that the reuser appropriately attribute the original work. Creative Commons also has other licenses that limit downstream reuse in a few ways. Two of the most common for scholarly works are CC-BY-NC, and CC-BY-NC-ND, which respectively limit reuse to non-commercial uses (non-commercial or “NC”) and limit reuses to disallow distribution of derivative works (no derivatives or “ND”). Creative Commons also offers a CC-BY-ND license, which permits commercial uses but not the distribution of derivative works, but this is a less popular option. OpenAlex (an awesome research tool from OurResearch) indicates that there are some 5.5+ million scholarly works (mostly articles and similar) published under CC-BY-NC and CC-BY-NC-ND licenses.

In my experience, authors select these more restrictive licenses for a few reasons. Typically, authors will select a non-derivatives (ND) license because they’re concerned about some downstream user modifying their work and creating a new work that misrepresents the original or that is just of poor quality (think of a bad translation). For those authors, they want a say in how their work is built upon to create new derivatives. I’ve found this to be especially important to authors of controversial works that could be recast or adapted in ways that don’t include appropriate context.

For authors selecting the non-commericial (NC) license restriction, the reasons are more varied, but I typically hear authors express concern about others profiting without their consent, especially from those who are attuned to the problems of large corporate interests who may seek to republish their work for a profit without the author’s input.

The Elsevier and Wiley OA Publishing Agreements

I have never had an author say that they selected a CC-BY-NC or CC-BY-NC-ND license because they wanted to be sure that only their large, multinational commercial publisher could profit from their article, to the exclusion of everyone else including the author herself. Yet, if you read these agreements closely, that’s exactly what some publishers’ agreements do.

Let’s start with Elsevier. It’s agreement is at least somewhat upfront about what’s going on. Elsevier’s sample CC-BY-NC publishing agreement states in the first paragraph that the author grants Elsevier “an exclusive publishing and distribution license in the manuscript identified above . . . in print, electronic and all other media (whether now known or later developed), in any form, in all languages, throughout the world, for the full term of copyright, and the right to license others to do the same[.]”

The key word in that license grant is the word “exclusive,” which means that Elsevier has the right to exclude everyone else (including the author) from using the article, except as agreed through the CC-BY-NC-ND license. In case there was any doubt, Elsevier makes clear on the same page that “I understand that the license of publishing rights I have granted to the Journal gives the Journal the exclusive right to make or sub-license commercial use.” The agreement does include a narrow carve out for authors to engage in some narrow categories of reuse that may go beyond the CC-BY-NC-ND license (e.g., lengthen the article to book form), but they are a far cry from the rights the author would otherwise have had he or she retained copyright and granted Elsvier a simple non-exclusive license to publish the article.

The Wiley journal agreement ultimately accomplishes a similar result, though in my opinion it is a bit more misleading. First, authors will find Wiley’s OA sample publishing agreements through a page that advertises “Retain copyright with a Creative Commons license.” It states, innocently, that “with Creative Commons licenses, the author retains copyright and the public is allowed to reuse the content. You grant Wiley a license to publish the article and to identify as the original publisher.”

If you read the sample Wiley agreements for publishing under a CC-BY-NC or CC-BY-NC-ND license, you will in fact find that the agreements do in fact provide that “The Contributor . . . retains all proprietary rights, such as copyright and patent rights in any process, procedure or article of manufacture described in the Contribution.”

This sounds great! The problem comes if you keep reading the rest of the agreement. Later in the agreement, you will find that while the author “retains copyright,” that copyright is reduced to a shell of itself. You’ll see that Wiley (which actually refers to itself as the “Owner,” to set the tone) has the author agree to grant “to the Owner [Wiley], during the full term of the Contributor’s copyright and any extensions or renewals, an exclusive license of all rights of copyright in and to the Contribution that the Contributor does not grant under the CC-BY-NC-ND license.” So, if the author’s intent is to retain control over commercial reuse or derivative works, think again.

Like Elsevier, Wiley does grant back some slivers of those rights to authors. For example, the right to make a translation as long as you only post it to your personal website, or the right to reuse the article in a collection published by a scholarly society (but, it definitely can’t be in any work with outside commercial sponsorship; Wiley seems particularly concerned with volumes sponsored by pharmaceutical companies, which they specifically target in the agreement).

A few tips for reading your OA publishing agreement

Read (and negotiate) your publishing agreement! Clearly, reading your agreements is important. For OA agreements, you should specifically look for language that either transfers copyright to the publisher or language that grants the publisher a broad exclusive license. If it does contain such a grant or license, think about what rights you might need that go beyond the rights granted to the general public under the CC license that you chose. The best publishing agreements are simple and straightforward, granting the publisher a license to publish and otherwise leaving all rights with the author. There are lots of good examples–e.g., this is one of my favorites, from Emory and the University of Michigan for long-form scholarship. And for more tips on understanding and negotiating your publishing agreement, check out our dedicated guide on the topic.

Don’t buy the website sales pitch. If there is a conflict between what the publisher says on its website and what the contract says, the contract will absolutely control. Be careful about any assurances that exist outside the four corners of your contract. More than once I’ve found authors ask editors via email about reuses that go beyond the agreement. Typically, editors are happy to assure authors that they can do reasonable things with their own articles, but unfortunately, the standard publishing agreements are far less reasonable than most editors. Where the editors’ assurance and publishing agreements conflict, once again the terms of the publishing agreement will prevail.

Watch for contract language about retaining rights. Don’t be fooled into thinking that you’ll retain significant rights in your work by the sleight of hand that says you “retain copyright,” or that you will have “copyright in your name.” If a publisher is obtaining a license of exclusive rights from you, that means the publisher can exclude you and everyone else from making use of those rights unless the agreement contains an explicit grant back of rights to engage in those activities. This is actually very common in non-OA publishing agreements, but as the Elsevier and Wiley agreements illustrate, you need to watch out for it in OA publishing agreements as well.

Shaping Your Publication Contract to Meet Your Goals: Part 2

Posted September 1, 2020

Book publication contracts deserve careful attention because their terms control the rights and obligations of authors and publishers for the life of the relationship between the parties, which can potentially last for decades. Our guide to Understanding and Negotiating Book Publication Contracts helps authors to understand common clauses in publication contracts, recognize how the terms might affect their goals for their books, and negotiate for author-friendly variations of those terms.

In this two-part series, we apply the lessons from our guide to real-life contract terms and illustrate how authors can consider the implications of contract terms and formulate author-friendly variations that advance their interests. This second post covers options, non-competes, the look and feel of a work, and assignment of the agreement. To read the first post addressing grant of rights clauses, subsidiary rights, and rights reversion, click here.

Future Works: Options

Sample Term: “Author agrees that it will offer Publisher the first right to publish Author’s next work […] on the same terms and conditions as those contained herein […].”

Why it could be problematic: The term above could be problematic because it doesn’t give the author the opportunity to decline the publisher’s offer, purporting to lock the author into working with the publisher on his next book. It also could be problematic because it says that the second book’s contract will have the same terms as the first book’s contract. This could be bad for an author whose first book is wildly successful and who may attract an offer of higher royalties for the second book, but must accept the royalty rates agreed upon in the contract for the first book. (Of course, the opposite could be true: the performance of an author’s first book could mean that the terms offered for a second deal may be lower than those offered for the original deal: But this clause doesn’t help with that situation, either, as it gives the publisher the right but not the obligation to publish the author’s next work.)

How to make it better: Options clauses can be softened in a number of ways. For example, authors can limit the definition of the “next work” for which the publisher’s option applies to something closely related to the original work (such as the next book in a series), and authors can even include a right to refuse the publisher’s offer. For more information on options clauses, see pages 131-134 of Understanding and Negotiating Book Publication Contracts.

Future Works: Non-Competes

Sample Term: “The Author agrees that during the term of this Agreement the Author will not, without the Publisher’s prior written consent, participate in the preparation or publication of, or otherwise be interested in or connected with matter that may, in the Publisher’s judgment, conflict or compete with the sale of the Work.”

Why it could be problematic: “Non-compete” clauses can be problematic because they can prevent the author from publishing any books that are of a similar character, ignoring that some authors may write exclusively on a niche topic, for example, because it’s their area of study as a scholar. This term is especially concerning because it explicitly leaves the decision of whether another book by an author will compete with the contracted book at the complete discretion of the publisher.

How to make it better: Ideally, an author will avoid agreeing to a non-compete clause in their contract at all. But publishers may feel strongly about protecting their investment in publishing the author’s book, and don’t want sales to be undermined by competing books. This term could be made better by instead using the phrase, “may reasonably be expected to interfere with the sale of the work” instead of being at the publisher’s sole discretion. And as the term of the agreement can be for a very long time, another improvement is to put a time limit for how long the author must refrain from publishing competing works, such as for one year after the contracted book’s publication. For more information on non-compete clauses, see pages 137-141 of Understanding and Negotiating Book Publication Contracts.

Look and Feel

Sample Term: “The [Publisher] shall have entire control of such production and publication in all forms and media. The paper, printing, binding, title, design, jacket and/or cover […] shall be in the [Publisher’s] sole discretion.”

Why it could be problematic: Typically, authors hand over the manuscript to the publisher and the publisher takes care of the “business” end of actually producing, distributing, and helping with the marketing of the book. However, some authors may want to have at least some input over the “look and feel” of their book. The term above gives total control to the publisher, regardless of how the author may feel about the publisher’s decisions.

How to make it better: If an author is concerned about having no say whatsoever in the look and feel of her book, she can negotiate for the publisher to agree to at least consult with her to get her opinions, or even get a right of approval about things like the design, jacket, and cover of her book. For example, if the publisher presents a book cover that the author loathes, the author can express that opinion and maybe veto the cover. That said, it is important for authors to remember that a publishers’ business is to sell books, and that publishers rely on their extensive experience in how to best accomplish that goal. To learn more about negotiation options for the look and feel of a book, review pages 153-57 of Understanding and Negotiating Book Publication Contracts.

Assignment of Agreement

Sample Term: “The Publisher shall have the right, without approval of the Author, to assign this Agreement.”

Why it could be problematic: Assignment is when a party to the contract (here, the publisher) gives all of their rights and obligations in the contract to someone else. Typically, publication contracts restrict an author’s ability to assign a contract without the publisher’s permission. This is unsurprising—after all, authors are individual people with particular skills, styles, and ideas, and the publisher contracted to work with that specific author. The potential problem with the term above is that the publisher can assign the contract without the author’s approval, meaning that the author has no influence whatsoever on who a future publisher may be. If the author chose the publisher because it’s prestigious, for example, but the publisher wants to assign the contract to a less prestigious publishing house, then the author will probably want to veto the transfer. But the contract says the publisher can assign the agreement no matter how the author feels.

How to make the term better: Ideally, the term will say that the publisher cannot assign the agreement without the consent of the author, though it is likely that the publisher will insist that consent cannot be unreasonably withheld. But this still gives the author the opportunity to consider the deal and the ability to reject the assignment for valid reasons, and balances control because the author must have a reasonable justification for vetoing an assignment. To learn more, check out pages 244-49 of Understanding and Negotiating Book Publication Contracts.

* * *

The examples of covered in this series are just that—examples. Every contract looks a little different, depending on the kind of publisher and the kind of book. While this two-part series on book publication contracts has covered some of the most common terms used in contracts, there are many more that may appear, such as outlining royalty rates or marketing terms. For a deeper dive into contract terms and options for negotiation, be sure to check out Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts.

Authors Alliance is grateful to Diana Buck, Copyright Intern, for researching and drafting this post.

Shaping Your Publication Contract to Meet Your Goals: Part 1

Posted August 18, 2020

In this two-part blog series, we apply the lessons from our guide to real-life contract terms and illustrate how authors can consider the implications of contract terms and formulate author-friendly variations that advance their interests. The first post addresses grant of rights clauses, subsidiary rights, and rights reversion. The second post will cover options, non-competes, the look and feel of a work, and assignment of the agreement.

Grant of Rights

Sample Term: “The Author hereby assigns to the Publisher the copyright and all the exclusive rights comprised in the copyright in the Work and all revisions thereof […] during the full term of copyright […] with exclusive authority to dispose of said rights in all countries and in all languages […].”

Why it could be problematic: When an author writes something original and fixes it in a tangible medium, she typically automatically has copyright ownership in the work. Authors should think long and hard about transferring copyright ownership for the life of copyright as they may come to regret this if, for example, their work falls out of print or the rights are not being actively used. The sample “grant of rights” term above hands total ownership and control of the copyright to the publisher, to be exploited by the publisher at its sole discretion for the life of copyright (which currently lasts for the life of the author plus 70 years). Essentially, unless the author regains her rights (more on rights reversion below), the author will not have a say in whether and how the work is made available and used.

How to make it better: Many authors prefer not to turn over ownership of the copyright to the publisher at all. Instead, the author may try to negotiate for a limited term grant, or to give the publisher a nonexclusive license. A nonexclusive license means that the author grants the publisher the ability to do certain activities (such as make copies of the book and distribute them), but the author will still have the ability to allow other publishers to do the same through similar nonexclusive licenses, or even to do those activities on her own. Even if a publisher does not agree to a limited term grant or a nonexclusive license, authors have many options to negotiate to make the grant of rights more nuanced, such as by limiting the geographic scope, including “use it or lose it” clauses, and requesting revert-back clauses. The grant of rights clause can be modified in myriad ways; to learn more, take a look at pages 44-73 of Understanding and Negotiating Book Publication Contracts.

Subsidiary Rights

Sample Term: “The Author grants to the Publisher full and exclusive right to act as his or her agent in disposing of the following rights and licenses: reprint, in full or in part; book club; serialization; dramatic, operatic, and musical adaptation; radio and television broadcasting; mechanical or electronic reproduction; microfilming and similar techniques; filmstrip production; motion picture and allied rights; and adaptations for commercial use.”

Why it could be problematic: Subsidiary rights are rights that arise from your copyright being used in specific contexts, such as for a movie adaptation or in audiobook form. The term above is especially problematic when you put it in context: This particular clause was found in a contract for a textbook. Is a textbook publisher realistically going to make or license an opera based on an author’s textbook? Authors should be skeptical of contracts that ask for subsidiary rights that the publisher really doesn’t need and is unlikely to exploit.

How to make it better: There’s no one clear way to make a subsidiary rights clause better. Instead, an author should consider and discuss with the publisher what subsidiary rights they each hope to realistically exploit. For example, if a publisher has no ties to the movie industry, but the author or his agent does, then the author could advocate to retain the rights to audiovisual works because the author can actually pursue the goal of getting a movie made. Authors can also limit the duration of these rights, ask for a license-back, or insert “use it lose it” provisions. To learn more about subsidiary rights, review pages 76-94 of Understanding and Negotiating Book Publication Contracts.

Rights Reversion

Sample Term 1: “If the Work (and all conversions, adaptations, ancillaries, derivations and portions thereof) has been declared out of print by the Publisher in the United States, the Publisher may, but shall not be obligated to, offer to reversion rights to the Work to the Author.”

Sample Term 2: “In case Publisher fails to keep the work in print (and for all purposes of this paragraph a Work shall be considered to be in print if it is on sale by Publisher in any edition in any venue, storefront or online, paper or digital […] then this Agreement shall terminate with respect to the Work and all of the rights granted to Publisher with respect to the Work shall revert to Author.”

Why it could be problematic: Reversion rights are important because they give an author the ability to regain control of her book from the publisher if certain conditions are met, such as sales or revenue dropping below a certain threshold or if the book falls out of print. One reason Term 1 is problematic because it leaves the decision of whether to return rights to the author in the sole discretion of the publisher: Even if the book is out of print, the author cannot trigger rights reversion unless the publisher agrees. Term 2 is problematic because the availability of digital versions counts as keeping a book “in print,” it’s possible that the book will never be declared “out of print” if the publisher makes an electronic copy available, even if it hasn’t been selling any copies.

How to make it better: Reversion rights should not be left entirely to the publisher’s discretion; instead, it is better for clauses to include a clear trigger for an author’s right to revert, such as a definition of “out of print” that is tied to concrete terms, like a minimum number of sales or revenue in a specified period. Additionally, it is preferable to eliminate the mere availability of electronic copies as sufficient for a book to be “in print;” again, it is better to link the definition of “in print” to a sales or revenue threshold, for example, rather than the mere availability in any form. To learn more about rights reversion clauses, read pages 231-43 of Understanding and Negotiating Book Publication Contracts.

* * *

The examples of covered in this series are just that—examples. Every contract looks a little different, depending on the kind of publisher and the kind of book. Contracts will inevitably have many more clauses that aren’t covered in this series, such as outlining royalty rates or marketing terms. For a deeper dive into contract terms and options for negotiation, be sure to check out Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts.

Authors Alliance is grateful to Diana Buck, Copyright Intern, for researching and drafting this post.

A Daughter’s Quest to Give New Life—and New Covers—to her Father’s Books

Posted June 11, 2020

Covers for the first three of William Melvin Kelley’s republished books,
designed by his daughter Jesi Kelley

Even before The New Yorker article was published that sparked renewed interest in William Melvin Kelley’s books, his daughter Jesi Kelley was trying to find new ways to disseminate his books. Part of her and her father’s efforts stemmed from a lack of responsiveness from traditional publishers. While Mr. Kelley had finished a new manuscript, no one seemed interested in publishing it, or republishing his older works which had fallen out of print. But with a background in entertainment, the arts, and advertising sales, Ms. Kelley had ideas for how to market the books through new platforms, including creating audiobooks and self-publishing. The issue with her ideas, however, was distribution—how to best amplify her father’s voice so that people would know his books existed in the first place.

William Melvin Kelley (photo by William Anderson)

In a prescient manner, William Melvin Kelley told his daughter that he knew republishing his books on a large scale wouldn’t happen in his lifetime. So, when William Melvin Kelley passed away in early 2017, Ms. Kelley focused her energy on getting his books republished as a way to honor her father’s dreams and legacy. The first place to start was determining who had the rights to publishing the books. The Kelleys—Jesi, her sister, and their mother—owned the rights to two of the five books because the rights had reverted when the books fell out of print. One was in the control of an independent publisher. Another, A Different Drummer, was still controlled by Kelley’s original publisher, Doubleday, which had since been bought by Random House. The last book’s rights were “floating in the ether,” as Ms. Kelley puts it, because the family had done a reprint with Howard University Press years before, only for the press to go out of business.

The real turning point in Ms. Kelley’s efforts to republish her father’s books was after The New Yorker published an article on her father, and people started reaching out. Eventually Ms. Kelley chose to work with Random House and William Morris, her father’s old publisher and agent. Random House fit because it was a large publisher, meeting Ms. Kelley’s concern about large-scale marketing, and the publisher already owned the rights to one of the books. Additionally, it was easier for the Kelleys to work with one publisher and have some uniformity across publishing the books, rather than shop each book around to publishers across the world. The Kelleys chose to stay with William Morris, who had been the agency of record, because the company and its agents gained Ms. Kelley’s trust by taking the time to speak with her and answer questions she had, explaining topics such as rights reversion and copyright termination. William Morris also helped Ms. Kelley sort out ownership of the rights to her father’s books.

As Ms. Kelley navigated the publishing world—speaking with agents, publishers, and lawyers—she also turned to the internet for guidance and came upon the Authors Alliance website. According to Ms. Kelley, the Authors Alliance website had the most concise, comprehensive collection of information that pertained to managing authors’ rights. The resources were especially helpful when Ms. Kelley was negotiating the contract with Random House, which was for all five of William Melvin Kelley’s books. Ms. Kelley wanted to retain control over the look of her father’s books, especially the covers.

Ms. Kelley’s dedication to the book covers stemmed from a prior publisher that put a cover on one of her father’s books that he absolutely hated, because he felt as if the cover had nothing to do with the book itself. In fact, the cover was a stock image that had been selected without having read William Melvin Kelley’s book first. Additionally, Ms. Kelley perceives of her father’s books as a series, because he built an entire world in which characters move in and out of the different books. Thus, she wanted the covers to reflect a unifying theme. So when Ms. Kelley negotiated with Random House for control over the books’ covers, she and her family were prepared to walk away from a deal if the publisher did not agree.

Ms. Kelley not only wanted control though; as an artist and graphic designer, she wanted to design the books’ covers too. Ms. Kelley gave a presentation to Random House on three potential cover ideas, which she designed after studying other books jackets she’d seen in the market. Luckily, Ms. Kelley’s vision for her father’s books aligned with Random House’s concerns on marketability, and she has designed the covers for the three books that have been published so far: A Different Drummer, Dem (available June 30, 2020), and A Drop of Patience (available June 30, 2020). She has also designed the covers for the remaining two books, Dancers on the Shore and Dunfords Travels Everywheres, which are expected to be republished in the fall of 2020.

When Ms. Kelley considers her father’s experience with publishing and her own time getting her father’s works republished, she’s especially aware of how nebulous the publishing industry can be. William Melvin Kelley didn’t think about the business of publishing, while for Ms. Kelley it was her entire focus in republishing her father’s books. She did not have to worry about writing the books themselves. She was also able to be more objective about her father’s books, and prioritize what really mattered to her and her family—getting the books back into print with covers that represented the stories. Her advice to writers is to take the time to put on their “marketing hat” and figure out what kind of book they’re writing and who they want the audience to be. For Ms. Kelley, she wants young black men of all backgrounds to read her father’s books—not just literary aficionados.

Authors Alliance is grateful to Diana Buck, Copyright Intern, for this post.

Resource Roundup: Negotiating Book Publication Contracts

Posted October 2, 2019

In October 2018, we released our guide to Understanding and Negotiating Book Publication Contracts and made it available as a free Creative Commons-licensed download as well as in print in the Authors Alliance store. The guide identifies clauses that frequently appear in publishing contracts, explains in plain language what these terms (and typical variations) mean, and presents strategies for negotiating “author-friendly” versions of these clauses.

As a companion to the guide, we’ve featured a series of blog posts over the past year that shine the spotlight on the ways that authors can negotiate for publication contract terms that help them make and keep their books available in the ways they want. To make these informational posts easier to find, we’ve gathered them into one handy list for your reference:

The Grant of Rights

The grant of rights is the heart and soul of your publication contract. It specifies what rights in your work you are giving to your publisher and what your publisher can do with these rights. These rights can be broad (e.g., the right to print and sell copies of your work anywhere in the world, forever) or they can be narrow (e.g., the right to sell a limited edition in a specific market for a set period of time). In this post, we share more ways you can shape your publication contract to retain some control over your rights, either by limiting the grant of rights or by securing the right to approve or be consulted about how your work is used.

Fair Use and Third Party Permissions

Does your book contain references to other creators’ works? This piece highlights an important aspect of your publication contract that defines whether your publisher expects you to obtain permissions for any third-party content—such as excerpts or images—you use in your book, or whether your contract explicitly allows you to rely on fair use.

Open Access Success Stories

Learn strategies that can help make your book openly available at different stages of the book’s life cycle and how to shape a publication contract to accommodate these options. Be inspired by real success stories from authors who have successfully negotiated for terms in their publication contracts that enable them to meet their open access goals.

Cover Design and Pricing

Contracts typically include clauses that allocate the decision-making authority for important parts of the publishing process. Your publisher will likely approach these decisions with an eye towards maximizing profit, which may well align with your interests. But you may also have a stake in these decisions because they can influence how you and your work are perceived by potential readers. This post shares some ideas for tailoring your contract to give you a say in how your work will be presented to the world.

Follow the Money

Rights management and design decisions may not be the only thing on your mind in a book deal. This installment of our spotlight series focuses on ways that you can shape your contract to help secure fair compensation for your work. Contract terms governing advances and royalties are two key ways that your contract determines what money will flow to you.

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Be sure to check out our Publication Contracts resource page for more details on these and other strategies to help you meet your creative and pragmatic goals.

Spotlight on Book Publication Contracts: Follow the Money

Posted April 16, 2019

In our Spotlight on Book Publication Contracts series, we are shining the light on the ways that authors can negotiate for publication contract terms that help them make and keep their books available in the ways they want. This series is based on the information, strategies, and success stories in our guide to Understanding and Negotiating Publication Contracts. Be sure to check out the online or print version of our guide for more details on these and other strategies to help you meet your creative and pragmatic goals.

In previous posts, we have featured ways authors can shape their publication contracts to retain some control over their rights and ways authors can have a say in how their works will be presented to the world. But rights management and design decisions may not be the only thing on your mind in a book deal. In this installment of our Spotlight on Publication Contracts, we’re focusing on ways that you can shape your contract to help secure fair compensation for your work. Contract terms governing advances and royalties are two key ways that your contract determines what money will flow to you.

Advances

Advances are payments for book deals that are credited against all or some part of your future earnings. An author’s advance is influenced by many factors, including the potential market size for the book, whether the author is a new or established writer, the book’s timeliness and competition, and a publisher’s calculation of risk and reward.

A perennial question for authors is “How big should my advance be?”. Unfortunately, there aren’t any hard-and-fast rules about the size of an advance. Sometimes, it makes sense to negotiate for the biggest advance possible. Because an advance is a credit against your royalties, if your publisher pays you a big advance, it has an incentive to market your book aggressively so that it sells enough copies to recoup this payment.

Success Story: An author interviewed for Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts wanted his book to be affordable and to be widely distributed, and he knew marketing would be important. Not being familiar with the publishing business, he hired an agent. The author and his agent pushed for a large advance in exchange for a modest cut in his royalty percentages. This way, the publisher would have the biggest financial incentive to market his book, as it stood to make more money once the author recouped. Further, the author agreed to use half his advance to hire an independent publicist to promote his book. This made it easier for his publisher to agree to a large advance as this increased the likelihood that the author’s book would be financially successful.

On the other hand, it’s possible that you may not receive an advance at all. While advances are typical in trade publishing, they are uncommon for scholarly works published by university presses. And, in certain circumstances, you might not want to take an advance. For example, your publisher may offer you a higher royalty percentage if you don’t take an advance, which could result in you earning more money over the long term if your book is successful. Or, you might be able to use a low (or no) advance as a bargaining chip to get better terms in another part of the contract.

Whatever the size of the advance you settle on, it’s important that you pay attention to how and when your advance will be paid and how your advance will be recouped. For more on advances, see pages 182-194 of Understanding and Negotiating Book Publication Contracts.

Royalties

Royalties are the amount of money that authors get from the sales of their books, usually expressed as a percentage. There are three main types of royalties:

royalties based on the book’s published price (also called the “list price,” the “cover price,” or the “manufacturer’s suggested retail price”);
royalties based on the publisher’s net income from sales of the book (also called “price received” or “sales proceeds”); and
royalties based on the publisher’s net profit.

To calculate your royalties under any of these systems, you’ll need to know both the percentage you will be receiving and the price from which that percentage is taken. It is very important to understand your royalty structure because it can make a huge difference in your future bank statements. For a detailed explanation of each royalty type, see pages 198-205 of Understanding and Negotiating Book Publication Contracts.

Success Story: Sergio Troncoso, an author of short stories, essays, and novels, as well as a savvy negotiator, pushed for his royalties to be a percentage of the list price, reasoning that this would likely be the more lucrative option. His publisher was initially resistant, but after a few rounds of back and forth, Sergio’s patience and perseverance paid off. His publisher agreed to a compromise: Rather than getting the published price (list) royalty he had asked for, he would receive a higher percentage of the net profit royalty than was originally offered.

Your royalties can also be influenced by escalation clauses, small reprinting provisions, reserves on returns, deep discount provisions, and remaindered books. For more on these topics, see pages 206-213 of Understanding and Negotiating Book Publication Contracts.

Authors Alliance Guides Now Available on Project MUSE

Posted April 2, 2019

We’re pleased to announce that our educational guidebooks for authors—which cover rights reversion, open access, fair use, and publication contracts—are now available on Project MUSE, a repository for monographs and journals created by Johns Hopkins University in cooperation with libraries and university presses. Founded in 1995, Project MUSE is a non-profit home for scholarship in the humanities and social sciences, and now contains over 674 journals and 50,000 books.

The full range of titles on the platform is available via library subscription; many works (including all Authors Alliance titles) are also freely available to everyone on open access terms thanks to the Open Access Books Program, an initiative funded by the Andrew W. Mellon Foundation with the goal of enabling OA works on the platform to be “broadly shared, widely discoverable, and richly linked.”

Four Authors Alliance guidebooks displayed on a shelf

Starting with the publication of Understanding Rights Reversion in 2015, each Authors Alliance guide has been made freely available to view and download on our website and via the Internet Archive. For those who prefer a traditional book format, the guides are also available for purchase in print.

Now, thanks to Project MUSE, our guides also contain rich metadata to make them discoverable and available to libraries. The PDFs also meet the Project MUSE standards of accessibility for print-disabled readers. We are grateful to Kelley Squazzo and Philip Hearn at Project MUSE for their assistance in making our guides available via the Project MUSE platform. Publishers interested in adding their titles to the Open Access Books Program at Project MUSE can learn more here.

Spotlight on Publication Contracts: Fair Use and Third-Party Permissions Clauses

Posted February 26, 2019

In our Spotlight on Book Publication Contracts series, we are shining the light on the ways that authors can negotiate for publication contract terms that help them make and keep their books available in the ways they want. This series is based on the information, strategies, and success stories in our guide to Understanding and Negotiating Publication Contracts. Be sure to check out the online or print version of our guide for more details on these and other strategies to help you meet your creative and pragmatic goals.

In this week’s installment of our Spotlight on Publication Contracts, we’re celebrating Fair Use Week by highlighting an important aspect of your publication contract that defines whether your publisher expects you to obtain permissions for any third-party content you use in your book, or whether your contract explicitly allows you to rely on fair use.

It is common for book contracts to include terms requiring authors to deliver documents to their publishers showing that they have obtained all necessary third-party permissions: i.e., that the author is legally authorized to use any materials incorporated into the book where the copyright is owned by third parties. Permissions may be required to use someone else’s copyrighted work—such as artwork, illustrations, or photographs. However, under certain circumstances, an author’s use of a reasonable amount of another’s work to, for example, prove or illustrate the author’s point may be fair use, which does not require third-party permission or payment.

Often, permissions clauses do not acknowledge the right of an author to rely on exceptions and limitations to copyright like fair use. Instead, they may stipulate that an author “shall be responsible for obtaining written permissions from the respective copyright owners to reproduce materials from third-party copyrighted works.” Clauses like this do not explicitly allow you to rely on fair use. If you plan to rely on fair use to use third-party material in your book, you may want to ask for a clause like this:

If the Author uses any copyrighted text, tables, illustrations, or other materials in the Author’s Work, whether these are the Author’s own or those of another, and if this use does not meet the criteria specified in the fair use section of U.S. copyright law, the Author agrees to obtain and deliver to the Publisher proper and complete permissions to reprint such materials from the owners of the copyrights….

For more information about fair use, check out Authors Alliance’s Fair Use for Nonfiction Authors or the codes of best practices in fair use for a variety of disciplines.