PUBLISHERS: IS IT TIME TO REVISIT YOUR HOUSE AGREEMENT?
Like everything else in the world, the legal and technological aspects of publishing are subject to frequent change. Unfortunately, many publishers fail to revise their standard house publishing agreements on a regular basis to keep pace with these changes. Continued use of an outmoded agreement can lead to confusion, lost opportunities, and, in the worst case, unnecessary exposure to liability.
Some of the points that are often not adequately covered in older house agreements include the following:
- Rights Granted. As a general rule, all rights not expressly granted to the publisher remain with the author. A federal district court decision on e book rights illustrates this point. The court rejected Random House's argument that a contract provision granting it the right to "print, publish and distribute the work in book form" included the right to distribute the work as an e book. The bottom line for publishers is that if you want a particular right, you must include that right in your contract.
- Exercise and License. Traditionally, publishers only published a book, and all other subsidiary rights were licensed to third parties. However, publishers are increasingly exercising foreign language, audiobook and other subsidiary rights themselves. If you want to be able to exercise subsidiary rights, your contract should clearly authorize you to do so.
- Custom Publications and Use of Portions of a Work. With the growth of electronic and print-on-demand publishing, many publishers are combining portions of various works to create custom works for individual customers, and are selling electronic versions of chapters or other portions of books to purchasers who do not wish to purchase the entire book. If you want the right to use portions of a work to create combined works, or to sell excerpts from a work, you need to include these rights in your contract.
- Payments. The royalty clause in many contracts addresses only English language print publication in the U.S. If you plan to distribute e books, sell printed books for export, publish foreign language editions, or produce and sell audiobooks or other works or merchandise based on the original work, your contract should provide for an appropriate royalty for your exercise of those rights. Also, if you want to include portions of the work in a custom publication, database or other combination work, your agreement needs to specify how the author’s royalty will be calculated for these uses.
- Revisions. New technologies such as e books and print on demand have made it possible to update books more frequently. Accordingly, if you publish nonfiction works, your contract should provide terms for revisions. This should include the right to revise the work if the author is unable to do so, and to continue to use the author’s name with revised editions, even if the author did not participate in those revisions.
- Out of Print. New technologies have also eliminated the need for minimum print runs. Therefore, your contract should specify whether availability in e book or print-on-demand format is sufficient to keep a book "in print."
- Internet Use. Your contract should allow reproduction of the work online for promotional purposes, should cover all of the possible uses described in the proposed Google settlement, and should specify whether the author can include portions of the work on his or her website, or sell copies through that website.
Technology and the law continue to change, and publishers need to take steps to insure that their standard house agreements keep pace with these changes.