Tuesday, June 16, 2009

A Disturbing Trend

I got a call today that was another example what appears to be a disturbing trend among publishers:  Offering rights they do not control.

For those not intimately familiar with publishing, the area of subsidiary rights is likely unfamiliar. Subsidiary rights are rights other than the simple right to publish the book in the United States.  Thus the rights to publish audio, electronic, British, and translation editions are all subsidiary rights.

A US literary agent may license World rights to a publisher, which gives it the right to publish a book in the US and throughout the world, but few publishers actually publish around the world.  Most sublicense the rights they licensed from the author to a publisher in the UK or in foreign countries.  Thus, a book like THE DA VINCI CODE could have many publishers around the world.

Now, a US literary agent may also choose not to license World rights and instead to license only US rights or World English rights.  In such cases, the agent would try to license those rights for the author directly.  The author generally makes more money this way, as the advances from these non-US licenses are not applied to the US advance, which is the case of the US publisher controls the rights and licenses them, plus the author is not giving up a 20-50% piece of the pie directly to the publisher as its "share" of rights income.

In the past year, I've had two publishers contact me and say they wanted to license rights they did not control...as in, the contract with those US publishers did not include the authorization to license the rights in question.  And in the case of today's call, it was apparent that the publisher had been actively negotiating to sell rights it did not control and had no right to be shopping.

Folks, imagine if I called you up and told you that I had an offer for your house.  But you never engaged me to sell your house.  Heck, you barely know me.  I just happen to work at a company with which you have done some business.  That's pretty much the call I got today.

Earlier this year, another publisher called me up and wanted me to let them sell rights they did not control.  I told them I would be happy to deal directly with the other party, but I was not about to authorize them to license additional rights.  That would be like letting the guy down the street sell your car and take a cut, even though you happen to own a car dealership.  Crazy, right?

When I get a call about rights I do not control, I refer the person to the party that does control the rights and that's it.  I don't try to horn in on the action.  And I certainly don't try to sell rights I don't control.  How would the US publisher feel if I was out shopping the translation rights?  Those rights were licensed to the US publisher as a part of the US publication deal and it's up to the US publisher to find those foreign publishers.  In doing so, the US publisher will get at least 25% of the income on the deal and get to apply the author's 75% to the advance paid for the US edition, so likely the author will not see any more money for years.

Publishers, unless you want agents out there selling rights you control, you should stop trying to sell rights you don't control.



Anonymous said...

It's funny this came up. I acquire for a small house and three times this month, I got a sheepish call from agents who "got excited and accidentally" sold foreign rights to books where we own those rights. I said, "Mistakes happen. Please direct the buyer to our foreign rights manager to continue negotiations." Yet, I didn't feel the need to blog and call out all agents on a mistake that a few made.

Goes both ways. Agents, know your contracts.

Adam K.
Minneapolis, MN

Andrew Zack said...

Ah, but do you blog, Adam? Because if you don't, then I would understand why you didn't. But if you do, then you perhaps missed an interesting subject.

Regardless, the situation you describe and the one I describe are quite different. In my cases, the publishers were aware what rights they controlled and did not control, yet chose to engage in negotiations for those they did NOT control and then called me up and asked me to GIVE THEM THE RIGHTS! Big difference.


Brandie said...

Very interesting blog post and the car dealership analogy is apt. But I see similar behavior in retail all the time. People selling things that they don't have control over or that don't even exist yet.

Sometimes they get over-eager about an idea. Sometimes they do it because they want other people to think they are the big dog on the street. And then you have the foolish ones who end up being arrested for fraud. @=)

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