Clark’s Publishing Agreements

Fight for your rights and be free!

Many authors are mystified by – and sometimes afraid of – the seemingly arcane world of rights. Interestingly, as internet books sales have boomed and the RRP is merely a guide to how much the book will cost, many readers also feel frustrated by their lack of understanding of rights and sometimes ask if authors are getting a good deal. In this post Lynette Owen, editor of Clark’s Publishing Agreements, explains what rights are and how they should be used.

In the world of publishing, rights – sometimes referred to as subsidiary rights – can be something of a mystery to authors (and indeed to some staff working in other areas in publishing houses). Rights are ways of exploiting the intellectual property in a literary work by licensing the content – perhaps to be published in an overseas market, published in translation, or used as the basis for a stage, television or film adaptation. These rights normally belong in the first place to the author (and perhaps also to the illustrator where relevant) who may then choose to specify that all or some categories of rights are handled by their literary agent or their publishing house. The share of revenue paid to the author from licensing arrangements will be specified in the contract between author and publisher; for deals handled by a literary agent, an agreed rate of commission will be paid to the agent.

As General Editor of Clark’s Publishing Agreements: A Book of Precedents (11/e, Bloomsbury Professional, January 2022), I receive mixed feedback on how the contractual precedents are used. Many small publishers use the downloadable templates verbatim, whilst larger publishers may want to tailor the wording to reflect company practice in terms of royalty models, warranties and indemnities, accounting dates etc. Some publishers incorporate selected wording from the Clark templates into their own contracts.

How an author chooses to grant control of rights in their work will depend on individual circumstances. If represented by an agent, the agency may make separate publication arrangements for separate markets, e.g.  the UK and Commonwealth with a British publisher and separate arrangements with a US publisher.  The agency may have specialist departments to handle translation rights or film and television rights, so those categories would be withheld from the English language publishing house/s. If no agent is involved, much will depend on the geographical territories granted to the publisher and the resources of the publishing house to exploit rights, something authors should discuss before contracting. These days, many larger publishers will expect e-book and audiobook rights to be included as part of their primary publishing rights. If some categories of rights are withheld from the publisher, authors do need to consider carefully whether they have the time and expertise to handle rights negotiations and contractual and accounting arrangements themselves.

The role of a literary agent is to act in the best interests of the authors they represent; however, not all authors are represented by an agent and it is rare for agents to operate in the areas of educational, academic and professional books, where contracts tend to be directly between author and publisher. If authors are concerned about the fairness of some elements in the publisher’s contract, they should first clarify any points with their editorial contact in the publishing house, who should be able to explain the reasons behind the contractual requirements. It is also worth noting that the Society of Authors can offer advice to member authors, although they probably do so more frequently for trade (general) authors than for educational and academic authors whose contracts usually differ from trade contracts to reflect different market conditions. Any formal legal advice on a publishing contract should be sought from a firm specialising in intellectual property matters.

I first joined the publishing industry immediately after graduating from London University, starting work in the London office of Cambridge University Press, and came to work in their rights department almost by accident – rights work was little known as a career path back then. In 1973, I moved to set up a rights department at Pitman Publishing, then spent a year at trade publisher Marshall Cavendish before joining the multinational publisher Longman Group Ltd (now Pearson Education), latterly as Copyright Director. I was fortunate to be able to travel extensively to sell rights, both at international book fairs but also on sales trips and publishing delegations – educational and academic publishers were early entrants to challenging markets such as the former Soviet Union, central and eastern Europe and mainland China. Space here precludes recounting many strange experiences in those markets, some of which I covered in my recordings for the British Museum Book Trade Lives project! Since 2013, I have worked as a freelance copyright and rights consultant, providing advice on rights and contracts to smaller publishers and also running training courses for publishers and degree students on rights in the UK and abroad. In addition to my work on Clark’s Publishing Agreements, I am also the author of Selling Rights, now in its eighth edition (Routledge, 2019) – as far as I am aware, the only book on the subject.

I think the most attractive aspect of working in rights is the opportunity to meet a wide range of publishers from all over the world and build up long-term relationships with them; a great deal of rights business hinges on personal relationships. It is also challenging and hugely rewarding to negotiate rights deals on behalf of authors and to tie up those deals in legally sound licence contracts, fair to both parties. By contrast, perhaps the most frustrating aspect of rights is that senior management in some (but not all!) publishing companies still do not recognise the value of the rights function, both in terms of generating revenue for authors and publishers but also in terms of the PR value derived from broadening access to publications through licensing.

My rights-related tips to authors would be:

  1.  If you have a literary agent, talk to them about rights possibilities and be prepared to assist with promoting rights if required.
  2. If you work directly with a publisher, find out how they handle rights and make contact with their rights staff.
  3. But do try to be realistic in your expectations for rights deals – not every book is a candidate for the silver screen!

For publishers, my tips would be:

  1. Time and effort expended on the promotion and sale of rights will produce results, even for smaller publishers with limited resources, and will enhance expertise.
  2. Rights selling depends on building long-term relationships with compatible publishing partners – these take time to establish.
  3. To publishing management – recognise the importance of a rights operation, both in terms of revenue and PR value to author and publishing house alike.

© Lynette Owen

In tomorrow’s post, Hannah Deuce, Marketing and PR Manager for Bloodhound Books, describes how she works with authors.

National Crime Reading Month and www.christinajamesblog.com

The Crime Writers Association (CWA) and the Reading Agency have built on their brilliant lockdown idea of designating June as Crime Reading Month (CRM). This June, crime writing of all kinds will be celebrated in bookshops, schools, libraries and museums and at special events. CWA members are all encouraged to engage in some kind of activity to celebrate crime writing and reading, however small – it could be something as simple as encouraging a local library or bookshop to mount a crime fiction display – or large – the festivities culminate with the announcement of this year’s Daggers Award winners. More information about individual activities and events can be found at Events – National Crime Reading Month. It is worth checking this site every day, as exciting new projects are continually being added.

I think CRM is a very exciting concept and I am planning to participate by offering a new blog post every day during June on some aspect of crime writing, reading or publishing. Most of the posts will take the form of interviews with people prominent in these areas and I have many great interviews already lined up: for example, with Richard Reynolds, the doyen of booksellers specialising in crime fiction; Dea Parkin, the secretary of the CWA; and Lynette Owen, the distinguished editor of Clark’s Publishing Agreements, as well as authors, book lovers, bloggers, librarians, publishers, policemen and more booksellers. I have been invited to take part in several events myself and shall be covering these, too. There are still a few spaces left in the latter half of the month, so, if you would like to take part in an interview for the blog, please let me know.

I’ll write one or two posts about certain aspects of my writing. Questions that I have been asked are: ‘Why do your books describe the towns and villages of Lincolnshire as they were when you were growing up, even though the novels themselves are set in the present?’ and ‘What is the fascination that Lincolnshire still holds for you as an author, when you say you moved away many years ago?’

I’ll pick up on this later in the sequence. In the meantime, I do hope you will find time to follow the posts and enjoy them. The series will begin tomorrow with the Richard Reynolds interview. Why have I started with a bookseller? The post itself explains.

Copyright and Clark

Clark's Publishing Agreements

I’ve just written a review of Clark’s Publishing Agreements: A Book of Precedents (Ninth Edition).   It’s been published by Bloomsbury and costs £130 (you get a CD for this as well).  I’m not expecting many of my readers to be interested in buying it, but, in case you are, you can obtain a 35% discount off the cover price if you’re attending the London Book Fair.  The ISBN is 978 1 78043 220 5.

The General Editor is Lynette Owen, a colleague and acquaintance whom I admire greatly.  She picked up the baton when Charles Clark, the doyen of copyright law in publishing, died in 2006.  I never met him, but I’ve met people who did and I’ve also seen photos of him.  I picture him as a sort of Rumpole character, a larger-than-life man of what used to be called ‘breeding’ and great intellect, who was both as sharp as a tack and tenacious as a street Arab when it came to defending authors’ and publishers’ right to get paid for their labours.

In fact, although copyright has always needed to be defended, Charles Clark died before the real squeeze began.  Beginning with the Digital Economy Act (2010), which was closely followed by the Hargreaves Report (2011), Richard Hooper’s work on the Copyright Hub (2012) and the Finch Report on Open Access (also 2012), UK copyright law has come under strenuous attack from a government that seems neither to appreciate that the intellectual property of writers and their publishers needs to be protected as much by law as, say, design patents protect pioneering engineers, nor fully to realise just how much of the national income is generated by a flourishing publishing industry.  That industry has, of course, responded with vigour, but in clear-headed fashion.  It is to the credit of both publishers and authors that, on the whole, they have not lost their cool over this.  Instead, they have worked hard together – along with various trade organisations and lawyers – to modify copyright law so that it is accepted as fit for purpose in a digital age without allowing it to be dismantled to the extent that large-scale publishing becomes unsustainable. (I’m not talking about self-publishing here: it has its own micro-economy that is distinctly related to the efforts of the individual author.  But self-publishing is not viable for many types of book, including multi-author works and the numerous academic or non-fiction works that need high levels of pre-publication investment.)  Richard Hooper’s collaborative work demonstrates this patient, reasoned approach at its best.

The backbone of the 9th edition of Clark consists of a series of ‘model’ contracts pertaining to most of the different types of publishing situation  – print and digital, individual and collective, direct and through third parties – for publishers and authors to consult.  Most of them can be amended according to individual needs and circumstances.  The ‘precedents’ therefore collectively represent an up-to-date compendium of best practice in publishing which takes into account all of the recent legislation and the industry’s informed responses to it.

The book offers much more than that, however.  The prefaces to the precedents, the introduction and the nine extensive appendices together explain the context in which the precedents have been set – i.e., the complex world in which writers and publishers have to operate today.  I found Appendix G, which explains exactly what an author’s ‘moral rights’ are, particularly fascinating.  I’d go further, and say that this book has yet more significance: for the collected precedents, commentaries and articles which it contains together demonstrate why copyright is valuable and why everyone who is active in the creative industries should fight to keep it.

Each year since his death, Charles Clark’s family has sponsored the Charles Clark Memorial Lecture.  It always addresses some aspect of copyright and I always try to attend.  The lecture is organised by the Publishers Licensing Society [PLS] and delivered at the London Book Fair.  Two years ago, the guest speaker was Maria Martin-Prat, Head of the Copyright Unit at the European Commission Internal Market Directorate General.  Her speech was eloquent and well-reasoned.  She said many things that resonated with her audience – and undeniably, since it largely comprised publishers and authors, she was preaching to the converted.  However, just one point that she made, towards the end of her presentation, has really stuck in my mind.  Speaking of Open Access, she said that she could understand why the talented and ambitious young people currently studying at universities or working for professional qualifications appreciated being able to obtain yet more and more content free of charge and were therefore vociferous supporters of the ‘free at the point of access’ principle on which Open Access is based; but, in a few years’ time, a considerable proportion of those same young people will have themselves become authors.  If they fail to understand copyright now, and therefore do not help to protect it, they will discover, too late, that they can demand no financial reward for their work nor claim any right to its ownership.  Maria Martin-Prat’s message to her audience was that, if all types of writing are to continue to flourish and to delight, there can be no more important task that demonstrating to the young that copyright is precious and should be treasured.  It is a point that I make as often as I can when I am speaking to young audiences.

I can’t conclude without congratulating Lynette Owen on her flawless work as editor.  I’m sure that Charles Clark is resting in peace, knowing that his work continues to live on under her capable tutelage.

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