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Writers' Guide to Permissions, updated

by Lynn Chu

How writers should protect themselves when asked to grant permission to use their work. Rev'd 7.22.10

You've just received a polite request to reprint an excerpt from one of your articles or books. You're flattered. Hey, professor so-and-so read my piece and liked it enough to put it in his new anthology! Great! you think. The letter goes on ... unfortunately, he's as poor as a churchmouse and so is his publisher ... between them they simply can't afford to pay more than a pittance ...

The first question is, who controls these rights? Do you? Or did your first publisher buy the exclusive right to relicense these rights from you? Your publishing contract will shed light on this; hopefully, you won't find yourself unpleasantly surprised by what that contract, on rereading, says. Take a close look at the use—or more likely, the many uses—the would-be licensee says he'd like to make of your work. These are often quite billowy and vague. Rackets abound today in which companies try to defraud authors into handing their rights to them, either to "own," or to license for their own account without reporting what they are doing or its profits to the author. Some of these companies style themselves as publishers, others as aggregators; still others, as not-for-profit organizations—a label meant to connote ethics, sweetness and light. In reality, not-for-profits are as likely to behave in a bottom-line way as a for-profit. Not-for-profits look for blanket authorizations to license on your behalf without advance notice to you. It is best not to permit these parallel authorizations of other unknown people to act as your agent. For one thing, it might interfere with your existing agent's exclusive rights, or those of a publisher "exclusively" authorized to license for you, and so might subject you to liability.

Be extremely careful about what you sign. These days, all paper is drafted (often in very slippery terms) to favor the drafter—not you. Paper coming from people who owe you a clear fiduciary duty may be trustworthy, for instance, say, from your personal literary agent (assuming this person knows what they are doing in the brave new world of licensing inasmuch as some agents are mere marketers). In the latter case, you might consult an attorney who knows licensing, before you sign anything.

Interestingly, many publishers these days disclaim the traditional fiduciary duty of publishers to authors. Under long established publishing law, publishers are authors' partners in all publications, and so owe their authors all the duties the law of agency-partnership implies, like reasonable author control over new publications. Publisher evasiveness about these fiduciary duties, in our brave new world of technologically enabled yet suddenly more valuable rights, ought to give authors pause as to publishers' motivations and the potential there for self-serving.

If you control your rights, then you have the right to set all the terms and conditions on which you license their use to others, and as I've said, this is best done through a knowledgeable and preferably legally sophisticated licensing agent or lawyer.

Nothing is "standard" in publishing any more. Once upon a time, authors were free to assume that they could rely on the fact that publishers would behave in a "gentlemanly" fashion, at least when it came to books and their subsidiary rights. No more. Today, authors are best served by a professional licensing agent who straightforwardly acknowledges their fiduciary duty to their client.

A publisher may think they and not you control your rights "exclusively" (which to them can mean, excluding you). Some publishers will authorize a new publication without consulting you beforehand, or even reporting it to you later. The move among publishers is to avoid giving the author any information at all about anything other than a "net receipts" amount which pools several licenses and so omits all details. In theory, and under law, authors are entitled to full, transparent advance information about every single thing a publisher does or authorizes. In reality, though, possession is 9/10s of the law, publishers prefer not to deal with you, and unless you find something out you don't like through the grapevine, you're unlikely to pester a publisher about it. In a world of exploding options, controlling what companies or products or publications you affiliate with, it is worth repeating, ad nauseum, is seriously important—particularly for works (or personalities) of high value. That said, the author's right to veto new publications, and his right to regular, detailed, transparent accounting about such activity, is very likely an implied term, legally, of all book contracts.

So, there may well be value in your reprint rights. Don't assume there isn't. Once there was a time in which rights and permissions were regarded a low money hassle an author could be glad to let a publisher relieve them of, for half off the top. (Never more than that!) That was then. This is now.

In the digital age, permissions once regarded as a hassle are easily automated. Chances are, you or your agent can license your own rights expeditiously and profitably. Controlling your rights means you can satisfy your own goals and preferences. Maybe you want to revenue-maximize. Or maybe you want make your work as freely available as new technology permits. That should be up to you. Either way, you don't want to do anything which deletes your own needs and preferences from the decision chain concerning your works.

Publishers who control, or think they control, your rights, will often try to block you from all publishing decisions. Many, be warned, are also now trying to do so by contract. By contrast, an agent works on your behalf. Publishers whose primary interest is personal revenue-maximization will ignore editorial and other concerns, and might create added liability for you, if it means making them a few extra bucks. Agents however are bound to serve your needs and concerns, and for way less off the top than publishers take. Publishers are supposed to pay for their right to any particularly large porion of the back end in an advance. But most publishing calculations are based only on parsimonious estimates of first year US sales in hardcover, rarely on anything else (unless you're in the blessed category of being hot). An agent will always tell you what is happening as it happens, explain the terms, respect your input, and pay you immediately upon receipt. A publisher who thinks they've bought your rights, as theirs alone, feels no such obligation—unless you wrote it into your contract.

So, control your rights. What you get paid for various types of publication is now a critical decision that should not (unless you're being richly paid in a large up front guarantee) get handed over to a functionary in a backroom of a side corridor of a media conglomerate to whom you personally are of no interest—indeed, to whom you are mostly just an albatross.

Perhaps you've retained approval over permissions or own those rights. What now? Sign the one-page form with the conveniently attached yellow carbon copy? It's a short, harmless looking paragraph in small type. Looks official. Oh, go ahead, you think to yourself. Just sign on the bottom line.....

Don't do that! No matter how seemingly innocuous it seems, every form contract contains pitfalls.

Too many people sign almost anything they're asked to. People's eyes glaze over when confronted with legalese of even a paragraph in length. This, after all, is why lawyers, accountants, literary agents and advisors of all kinds exist.

I'll try to keep this as absolutely brief and painless as possible. If it starts to feel painful, you should consult a knowledgeable agent or attorney and let a specialist who understands all this stuff intimately remove stress from your life.

Rule Number 1: All you ever want to grant to someone who wants to use your work in their book for free or for a small fee is nonexclusive permission for the use. Limit the use to a specified number of printings in a specific edition. Figure out what they should pay using objective criteria: print run, price of the book, length of the excerpt, etc.

Shockingly, there are a lot of unscrupulous people out there who, knowing that people tend to sign anything that's shoved under their noses, will try to get them to sign away as many rights in their work as possible. Beware especially of film and television producers with their seemingly innocuous one-page releases.

Rule Number 2: Specify the use. Read the language the licensee wants to use, twice or thrice, carefully. Feel totally free to alter it. Usually, language furnished to you by people who want to use your work is quite expansive, even if it appears to be brief and innocuous. In general, you should only permit the licensee to reprint your work in the particular edition they say that they are publishing, not all possible derivative works of their edition. You might also limit the number of copies, i.e., require a further fee if the book sells widely beyond a certain number of copies. Watch out for electronic uses, which makes illegal copying much easier. Digital or other media are separate rights and you need to be informed what exactly those uses will be, and get paid for them. Being very particular here is key.

Rule Number 3: Specify the territory the reprint may be used in, and the language (i.e., are you permitting the translation of your work into another language?).

Rule Number 4: Specify the credit you would like.

Rule Number 5: Tell them what they are NOT entitled to do, specifically. And ask that all inquiries as to further reprints be sent to you.

That's it. It's not really that complicated. You just have to understand that you have something that someone wants and your job is to define that thing with precision so that you don't by accident give away more than you expected for the fee that you are charging.

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