How to speak publisher: F is for Foreign rights

It's book fair time. Bologna next week, and London next month. Those are the only book fairs I go to, but there are others, of course (and I haven't been to Bologna since they moved it out of the school holidays and so made attending impossible). I'm well aware of the view that authors going to a book fair is like taking pigs for a trip round an abattoir, but I'm not squeamish.Book fairs are not about writers, though. They're about rights. I know, the words sound the same - "I'm off to Bologna to buy some rights"/"I'm off to Bologna to buy some write[r]s". It's easy to see how writers got to think they are somehow involved.

Book fairs are about selling foreign rights. That means: you have sold your book to a publisher in your own country, and now someone is going to sell it to a publisher in another country. Since I'm in the UK, let's assume you've sold your book to a UK publisher, but it works in much the same way anywhere. Now it gets a bit complicated. Your contract might have sold the publisher rights in all languages and formats in the known and unknown universe. Or you might have sold only the UK/English language rights. In the first case, the publisher owns the foreign rights. In the second case, you do. Of course, if you sold the copyright in a flat-fee deal, you don't have the foreign rights even if they were not mentioned in the contract. (Actually, I'm going to start buying up Martian rights. And maybe exoplanetary rights. No one's doing that. And I'll retain those in all future contracts.)

So what are foreign rights? Put simply, the right to sell your book in foreign places. Not sell as in bookshops, but sell as in republish (and then, we hope, sell in bookshops). Obviously, foreign rights often involve translating the book into a foreign language. Not many people in the Ukraine are going to read your book in English, but if you sell Ukranian rights and the book is translated into Ukranian, you might find yourself a lovely new market.

If your publisher handles the foreign rights for your book, your contract will tell you what share you get of any sales. Let's imagine my vampire publisher sells the rights in Vampire Dawn to the Ukraine (I have no idea whether they are planning to - this is just hypothetical. Hello, any Ukranian publishers.) They will seek out, by whatever means, a Ukranian publisher interested in buying in a series of short books about vampires. This is what they do at book fairs. Here we hope either the Ukranians speak good English or they have a good translator, as we don't want them buying what they think is a series of books about short vampires. The publisher says, "OK, you can have the vampires for £20,000." I get a proportion of that money - I can't remember what proportion, but probably about 40%, which would be £8,000. So foreign rights = money for nothing. The author has to do NOTHING to get money for foreign rights. Hooray!

If your publisher doesn't handle the foreign rights, your agent should be selling foreign rights. And that's what they do at book fairs. They look for Ukranians interested in short vampires, or whatever. Now, there's clearly an advantage to retaining the foreign rights, isn't there? If your publisher sells the foreign rights for £20,000 and you get £8,000, there's still £12,000 for the publisher. But if your agent sells foreign rights for £20,000 and you pay the agent 20% + VAT (it's often 20% for foreign), you get about £15,000. Hooray! Foreign rights =  even more money for nothing! Of course, for your agent it's also best if you have retained foreign rights. If they sell your rights to the Ukranian vampire-hunter, they get £3,000. If the publisher sells the rights, the agent gets 15% of your £8,000 (£1,200).

If your publisher doesn't handle foreign rights and you don't have an agent, guess who gets to sell the foreign rights? Yes, you. That's when you might want to go to a book fair with your selling hat on. NOT to interest some random editor in your latest unpublished tale about ponies or flying bunnies or bone-sucking monsters. Editors aren't even there, usually.

I have no experience of selling foreign rights, but here's an encouraging story about a guy who - obviously a selling genius - managed to sell foreign rights to something he calls a spiritual allegory about bees for $40,000. I know, I know - but people buy pot noodles and jumpers for their dogs. There's no accounting for what can be sold. If you sell your own foreign rights, you don't have to pay anyone else anything. So assuming you've tracked down that Ukranian publisher and secured £20,000, you get to keep all of it. You don't even have to pay VAT as it's outside the EU (isn't it? I think it is, but the EU keeps growing). Hooray. Ish. Foreign rights = money for something, which could be considerable effort.

Let's sum up the maths. Look away if you don't like numbers.

We will assume Ukranian rights are sold for £20,000.

Publisher sells rights, your share is 40%
If you have an agent, you get: 40% of £20,000 LESS 20% agent commission + VAT
= £6,080
If you don't have an agent, you get 40% of £20,000
= £ 8,000

Agent sells rights, you pay 20% commission
You get: £20,000 LESS 20% agent commission + VAT
= £15,200

You sell rights
You get: all of it
= £20,000

If, like me, you would rather gouge out your eyes with a plastic spoon than talk to a Ukranian rights buyer, the last option isn't going to happen. But having an agent who handles foreign rights is definitely a good idea - as long as they are good at it. It's not quite the no-brainer it appears to be, though. You need to take account of (a) how likely each potential seller is to sell the rights at all and (b) how much they are likely to get.

Your publisher is trying to sell lots of foreign rights. They can bundle things, do deals that involve more than one author, and give away lollipops (or champagne, or at least prosecco) on their stand. If they are good at selling rights, they might (a) succeed and (b) get a good deal. But they might also be less fussed about your particular books/deal as they have others to work with.

Your agent might or might not have a department for handling foreign rights (that's an advantage of a big agency), or links with agents overseas, or expertise in selling foreign rights. That's something you should look at when choosing an agent. They might stand less or more chance of selling the foreign rights than your publisher.

You, frankly, stand less chance of selling the rights yourself than either a publisher or agent. There are exceptions - you might be a real sales whizz and cut a wonderful deal. Good for you. But imagine you are the rights buyer of Vampire Press (Ukraine) and you can either fix a meeting with Ms Professional Publisher or Ms Top-Shot Agent or Ms Author. You have one slot left in your diary. Which will you go for? Either of the first two. Simply because if either of them shows you a series about short vampires and you don't like it, you can ask what else they have and they will have something else so your slot was not wasted. If you opt for the author and don't like the vampires, all you'll get is a lot of moaning and tears. And no lollipop/prosecco.

As an author, you are also less likely to sell the rights for as much as your publisher or agent could. Imagine thatt you sell the rights for £10,000 - you're still better off than you would be if your publisher sold the rights, but less well off than if your agent sold them. And I know plenty of authors would sell their foreign rights for a mess of pottage (or a lollipop and a glass of prosecco) just because they would be so delighted to have a deal. Don't - all right? Just don't. I'll buy you a lollipop and a glass of prosecco - save your rights.

During the interregnum, or interagentum, after I had left one agent and not signed with my current agent, I let publishers buy all foreign rights. I did this because I had no intention at all of hawking foreign rights around anywhere. I am not a salesperson. I am not good at it, and I can't be bothered. I would rather write another book. Now my secret agent Q is a bit cross about that. I hope I don't have another interagentum, but if I do I'll remember to hold on to foreign rights so that any future agent has something to sell at book fairs. It's a useful thing to consider if you are currently unagented but looking for an agent - if you can offer foreign rights to some successful books along with your current work, that might make you a more appealing prospect. Please, if any agents disagree, say so!

Selling foreign rights in a book already published is one thing. Looking for a co-edition partner is another. (Oh, I should have done co-edition under C. Oops. A co-edition is when the book is published in another language/territory at the same time by a second publisher.) Publishers often need a co-edition deal before they can afford to go ahead with a book, especially if it is in full colour and therefore expensive to produce. And that's where I have to wave and step away from the screen, as three of my potential contracts at the moment are hanging on co-edition deals. I'm off to do samples for the London Book Fair so that foreign publishers flock to sign up and those books go ahead. Any publishers interested in space? philosophy? retellings? Head to LBF, form an orderly queue, I'll tell you the stand numbers later. Lollipops and prosecco will be on offer.


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How to read a publishing contract (1)

Publishing contracts can be long and scary documents. It's easy to be intimidated into thinking that you just have to sign on the dotted line and go along with what the publisher wants, but you don't.

If you have an agent, your agent should be good at arguing for you, but some agents are better than others. If you are a member of the Society of Authors, they will look at the contract for you and make suggestions about clauses they consider unfair. If you are not a member of the Society of Authors, join now! You only need one published book (not self-published or vanity published), or one publishing contract, to join.

But having an agent and joining the Society of Authors doesn't let you off the hook. You still need to read the contract, you still need to understand it, and you may still object to things that SocA or your agent don't object to - or you may be happy with things they object to. Remember, it's your book, your career, your final choice. Don't be bullied. And don't be ignorant. If you are planning on being a professional writer, you need to understand your publishing contracts. And remember that to start with the publisher will send your their 'standard' contract. It's where you start negotiating from - it's not the end of the story.

Now, as they're long and scary, I'm not going to go through a whole publishing contract in one go here. We'll do it clause by clause. I will just pick my last contract, so it's a random choice. Every now and then I'll stick in a clause from a different contract so that we cover all (or most) bases. Please, people, feel free to add extra advice and, most importantly, correct any errors in the comments. What I am using here is not quite a standard contract as I have worked with this publisher before and argued with them, so my contracts are now tailored to accommodate the results of previous strops. They sometimes reinsert their favourite clauses to be argued about again, or in the hope that I won't notice them.

Note - this is a UK contract, relating to UK law and I give UK interpretations of the terminology. If you are not in the UK, your contracts will be different. Don't follow my advice and then grumble that it doesn't match your legal system and you've been strung up.

Here we go:

First the preamble:

MEMORANDUM OF AGREEMENT made this ...[insert date before you sign] day of ...[insert month] Two Thousand and ...[insert year] between Stroppy Author, c/o Stroppy Author's agent, Agent Street, London, (hereinafter called 'the Author', which expression shall, where the context admits, include Authors and Author's executors, administrators and assigns or successors in business as the case may be) of one part and Stroppy Publishers of Stroppy Publisher address (hereinafter called 'the Publishers', which expression shall, where the context admits, include the Publishers' assigns or successors in business as the case may be, whether carried on under the present or another style) of the other part

WHEREAS the Author agrees to write an original work for the [Stroppy series], at present entitled:

Stroppy's Latest Book

(hereinafter called 'the Work')
NOW IT IS HEREBY AGREED as follows:

OK. This is a long-winded way of saying who you are, who the publisher is, and what your book is currently called. It means that if you die, or become completely incapacitated, you aren't let off the terms of the contract, the terms just apply to your descendants. It also means that you aren't let off if the publisher goes bankrupt, changes its name, bla bla - the contract will still be in force with whoever takes over. This might mean (for you) negotiating with a liquidator. It might mean (for the publisher) negotiating with your bereft relatives. We won't get distracted into that now. We'll do 'when your publisher goes bust' another day. Let's stay optimistic for now.

So, assuming you live long enough to write the book and the publisher stays solvent long enough to publish it, what next?

In this contract, the book is 'at present entitled' which means you/the publisher might change the title of the book before it is published and the contract will still be valid. The book is now known in the contract as 'the Work' and will still be 'the [same] Work' if the title changes.

Clause 1, then I'll let you off for today:

Rights and Territory
1. In consideration of the payments hereinafter mentioned, the Author hereby grants the Publishers during the legal term of copyright the sole and exclusive right and licence to produce, publish, broadcast and perform the Work or any abridgement, portion or adaptation of it in all editions, languages and forms throughout the world. The Author grants to the Publishers electronic rights for excerpts of up to 150 words from the Work. Further electronic rights are to be mutually agreed.

In consideration of the payments hereinafter mentioned = in exchange for payment; there is a later clause about money

during the legal term of copyright = until 70 years after your death (UK law); varies by jurisdiction, but there is a full list here. If you publish in Afghanistan, there is no copyright.

sole and exclusive right and licence = you can't let another publisher do anything with the book and you can't self publish it or do anything else with it yourself

produce, publish, broadcast and perform the Work or any abridgement, portion or adaptation of it = the publisher has broadcast and performance rights; they can negotiate with the BBC to serialise the book, they can approve (or not) stage performances, readings, audiobooks. You can't do a short version, chunk or re-working of the book for another publisher or broadcaster. Think this doesn't affect you because it's not feature-film material? Think again. It means you can't do a YouTube video of yourself reading from the book without their permission. You can't produce an opera from it, or a puppet show, or a machinima movie. Even if you translate it into Tamil first.

throughout the world = you can publish it on other planets. They are being generous. I have heard of a publishing contract that claimed rights throughout the 'known and unknown universe'. Throughout the world, though, suggests that you could broadcast your work on the basis that you are aiming it at a different planet but unfortunately some people on Earth are listening to the signal when they shouldn't be. I haven't put that to the test, but it looks plausible...

The Author grants to the Publishers electronic rights for excerpts of up to 150 words from the Work = the publisher can use up to 150 words in any electronic form, such as putting it on their website, on Amazon, or including it in other e-books as a taster. This publisher is being very reasonable. (Actually, I insisted on this restriction in an earlier contract and they anticipated another strop if they didn't include it in this one). We'll come back to electronic rights properly another day, but allowing an excerpt is fine. The reason this excerpt is so short is that the book is very short; for a longer book, expect a longer excerpt - but not too long.

Further electronic rights are to be mutually agreed = If they want to make an e-book, they have to ask you first and you will arrange the terms then. I hope the wording of this clause means that electronic rights remain with the author until they are 'mutually agreed', as that's what I asked for. If any legally-expert readers would like to confirm or refute this in the comments I would be grateful. If the contract claims electronic rights here, you MUST argue about the clause. You may want to reject the contract outright if they won't change it.

So, by agreeing to this clause you give up all rights to do anything else with your book anywhere in the world in any language. This is a clause you should argue with. Why should the publisher stop you giving a reading, allowing the book to be read on radio, or make a YouTube video? Do you want your agent to be able to sell foreign rights? Don't you want to make a block-buster movie and sell plushies of your characters? What's wrong with you?

Did I strop?

No. I would have challenged the performance/adaptation part of this clause. In fact, this contract has a later clause clawing back TV, film and merchandising rights so I didn't, but if your contract doesn't have such a clause you must argue to keep some of these rights.

In this case, I didn't strop as my daughter was very ill and I just signed on the dotted line to get it over and done with. Sometimes that happens, but I would try not to do it again. I always want to keep animation rights. I will argue that YouTube and machinima are electronic rights if I want to do either of these later.

Whether you argue about this clause will depend on who your publisher is, who your agent is, and what you plan to do with your book. If your publisher is a large international and will do their own foreign editions, you may want to let them deal with foreign rights, and they may insist on it. If your agent is an expert at selling foreign rights, you might want to argue. If your book is a textbook on integral calculus, you might think the performance rights are not worth keeping. But think carefully - a video of glove puppets explaining integral calculus might be a big hit!

Right, enough for now. I'm off to make a glove puppet show about integral calculus...