Do You Hold E-Rights to Your Traditionally Published Book?

Closed for Business / Maistora / Flickr

Maistora / Flickr

I recently received this very challenging question and scenario from traditionally published author Dr. Liz Alexander.

I have an issue with one of my publishers and don’t really understand where I stand.

Last year Octopus Publishing (who took over Gaia, publisher of four of my highly illustrated best sellers, including The Book of Chakra Healing and The Book of Crystal Healing—approx. 250,000 and 200,000 sales each—contacted me to say they wanted to reissue Chakras with new illustrations (it was originally pubbed in 1999) and to offer an e-edition as well as POD. It would then become a Gaia Classic!

This was one of my earliest books, I didn’t have an agent at the time and because of the highly illustrated nature of the book, I ended up with 5% of net receipts in royalties. I easily earned back my advance and have been making several hundred dollars consistently on this book since publication … As with most publishers they’ve done nothing to publicize it, but the book is on a universal topic, has great reviews (it was very good, even if I say so myself, lol!) and could go on selling forever, I guess.

The original contract didn’t cover e-versions (obviously) so they sent me an addition to sign—in which they are offering 15% of net receipts for the electronic version of the book. I said it wasn’t enough and that given the amount of money they’ve made from my books over the years (for which I wish now I’d negotiated an escalating royalty rate —but naive at the time) that 25% was nearer the mark. They keep coming back saying that Hachette (the big owner) has a policy of X and this ties their hands. It’s the kind of dinosaur belligerence that causes authors to leave publishers in droves … we’re not treated like individuals, just another author—sigh!!

Anyway, I wrote back and said I wasn’t going to sign my rights for 15% and was investigating publishing my own ebook version.

The Octopus editor wrote back to say that I’d have no right to publish an ebook of my own because they owned the text rights as per our original contract (and I need to go back to the wording to check this is accurate).

It was her last sentence that bothered me the most—other than the fact that they weren’t prepared to budge on the 15%—something to the effect that they’d prefer to move ahead with my “blessing/involvement,” which led me to believe that they were prepared to publish an ebook without it!

Surely they can’t go ahead with an ebook version if I refuse to sign the addendum to the contract? Would be grateful for your thoughts as to how best to proceed. My mother used to tell me that I had a tendency to “cut off my nose to spite my face” but I’m a very principled person and don’t like being treated this way.

Frankly, I don’t make enough money on this book that if I told them to stuff it (just for ebook—they’d have to continue paying me my other royalties), I wouldn’t be losing that much … what do you think?

This is a very slippery issue, for a number of reasons:

  • Contract language may be ambiguous as to who holds rights, and the language may be interpreted differently (there is little legal precedent to refer to in these situations)
  • Who retains e-book rights—author or publisher—is a controversial issue
  • Who holds rights to the text versus images may be different
  • Who holds e-book rights based on territory can be even more confusing

It’s also a little tricky for me personally because I’m familiar with conventional language in most U.S. publishing contracts, and I don’t know what differences there may be in the UK market. However, I believe there are still fundamental questions that apply regardless. (Disclaimer: I am not a lawyer and this is not professional legal advice.)

  • What, if anything, does your contract say about e-rights? If e-rights are not mentioned at all, it is difficult to see how your publisher could exploit them without your permission. How could they even set an e-book royalty percentage without a contract addendum? Find the contract and look for the language “rights to the text”—does this extend to all mediums and formats, or all means of delivery, storage, and reproduction? If not, you likely retain these rights if we’re talking about a typical royalty contract (e.g., you did not agree to a work-for-hire arrangement).
  • Who owns rights to the images? This is a bind for many publishers who don’t have the time and resources to go back and secure electronic rights to images used in print books. This issue is explored further by Emily Williams at Digital Book World, in Image Rights Slow Transition From Print to Ebook. A must-read for any author of illustrated books!
  • What territorial rights do they have? The answer to this question may be different for the text versus the images (creating another bind!). Do they have world rights to all of it, for all versions/editions?

My questions help structure an approach to determining an answer, yet that answer will probably not be 100% tight. Even if the contract seems to favor you—e.g., if it doesn’t mention e-rights—a publisher might still claim they hold those rights, even if they can’t exploit them (if you fail to agree to a contract addendum). The publisher may also feel emboldened because you don’t have an agent.

Here’s a quick summary of what’s been argued and said up until now (mostly from the U.S.).

Controversy Surrounding This Issue

  • The latest controversy involves Open Road Media, an independent e-book publisher, which primarily publishes e-editions of traditionally published books where the author/agent has kept the e-rights. Publishing analyst Mike Shatzkin once said of Open Road, “[it’s] exploiting the combination of old contracts that are ambiguous about ebook rights and the big trade houses’ reluctance to go beyond a 25% of net receipts royalty on ebook sales to make high-profile ebook captures.” HarperCollins is now suing Open Road because of its publication of a children’s book that was originally signed in 1971. (See Publishers Weekly article here, plus illuminating comments by agent Robert Gottlieb.) Apparently, the contract in question gives Harper the right to be the exclusive publisher of the work, “in book form,” including via “computer, computer-stored, mechanical or other electronic means now known or hereafter invented.”
  • Random House also tried suing an independent e-book publisher, for very similar reasons to HarperCollins, in the Rosetta Stone case. Agent Robert Gottlieb references this case and comments (in the same PW article mentioned above): “The claim H/C is making that ‘book form’ covers electronic books does not hold water in my view. As an example if a publisher bought book rights and did not specifically have mass market or trade books listed in the agreement, could a publisher then say they still had the rights because they are covered by ‘book form’? Normally publishing agreements are specific as to what a publisher has and doesn’t have. If it is not stated in the agreement normally it is then a reserved right to the author.” He then adds, “If such language truly covered ebooks there would be no reason today for publisher to specifically state that ebooks are covered in the agreements they are making with authors.” Here’s a viewpoint from agent Richard Curtis, who notes that publishers like Random and Harper typically view e-book rights as theirs to exploit if that language I cited in the first bullet point above is in the contract.
  • In 2010, agent Andrew Wylie (based in the UK) threatened to make an exclusive deal with Amazon for e-book rights on behalf of some very notable authors. He eventually backed away from this, but his position was clear (at least based on the contract language he negotiated): “Backlist digital rights were not conveyed to publishers, and so there’s an opportunity to do something with those rights.” Here’s yet another thoughtful analysis of the situation by agent Richard Curtis.
  • For an in-depth legal perspective on the issue, I point you to CopyLaw’s fine post (not that they offer any clearer answers!): Who Controls eBook Rights? from December 2011.

Most agents would say: If the rights are not clear in the contract, then the publisher is obligated to draw up a new and fair deal to cover those rights. It appears that’s what your publisher is doing now, although the terms aren’t very favorable for you.

I did find a 2010 article in the Guardian that indicates UK authors are being offered less favorable royalty rates than their U.S. counterparts. While 25% is a typical royalty rate for traditionally published e-books in the U.S., UK authors are struggling to get there—and sometimes this prevents any e-book editions from being released (due to lack of agreement between author and publisher).

Quick side note for all readers: If rights have reverted to you (if your book has gone out of print, which typically triggers a reversion of rights), then you have no need to worry. Rights should be yours to exploit!

I’d like to open up this issue to my readers—especially any agents who are reading this and have insight or experience—although I know it’s difficult or impossible to say anything without seeing the contract.


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Jane Friedman

Jane Friedman

Jane Friedman (@JaneFriedman) has 20 years of experience in the publishing industry, with expertise in digital media strategy for authors and publishers. She is the co-founder and editor of The Hot Sheet, the essential newsletter on the publishing industry for authors.

In addition to being a columnist for Publishers Weekly, Jane is a professor with The Great Courses, which released her 24-lecture series, How to Publish Your Book. She also has a book forthcoming from the University of Chicago Press, The Business of Being a Writer (2017).

Jane speaks regularly at conferences and industry events such as BookExpo America, Digital Book World, and the AWP Conference, and has served on panels with the National Endowment for the Arts and the Creative Work Fund. Find out more.

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24 Comments on "Do You Hold E-Rights to Your Traditionally Published Book?"

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jamesscottbell
jamesscottbell
4 years 8 months ago
Jane, I recently went through this to clarify my own set of e-rights with a former publisher, and we ended up agreeing that I own them. This in part because  I put on my lawyer hat (which I hadn’t worn in years but still fits) and did up a research memo. In short, the weight of the law, in my considered opinion, is on the side of the authors. Ambiguous language in contracts is held against the drafters, and unanticipated technology in other contexts (e.g., videotape) has also inured to the artists’ benefit. On top of that, a publisher cannot… Read more »
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Matt Gartland
4 years 8 months ago
I don’t mean to detract from the immediate and pressing matter related to Dr. Alexander’s case … nor distract from the dialogue about e-rights in retrospect of established contracts. But I have a question that I hope advances the conversation here on e-rights. Namely, for authors working on their next project (or, for new authors on their first), how does one approach the conversation of e-rights at all in the hopes of retaining them? I’ll freely admit some naivety here. But with the deluge of pro e-media opportunities for authors (perhaps hallmarked recently with JK Rowling’s new Pottermore venture), do… Read more »
Elizabeth Munroz
4 years 8 months ago
I’m not an attorney so my comments or questions may not apply. However…. It seems to me that the wording, “we’d much rather go forward with your blessing/involvement” is meant to sound a bit threatening/coersive. Are they suggesting that with or without the “blessing”, they could legally go forward and print up the text in an ebook form, and provide no compensation? I cannot believe they would have the right to do so. Besides, what good is the book without the visuals to go with it? Even if they could get away with publishing the text, they would have to spend… Read more »
Liz Alexander
Liz Alexander
4 years 8 months ago

Hi Elizabeth…just to clarify, the visuals are the publisher’s not mine…they commissioned all those wonderful illustrations (and thanks for checking out the book on Amazon). 

You make an interesting point about a DVD, although that would involve me investing in additional visuals because, as you implied, the text without the illustrations would an impoverished experience for viewers/readers.

Thanks to everyone who has pitched in…will be sure to let you know the outcome when I do, lol. 

Ernie Zelinski
4 years 8 months ago
I think that Liz should only agree to ebook rights if the publisher dramatically increases the royalties. First you only received 5 percent of net for the print edition. It works out to approximately 2.5 percent of retail price. Now to be offered only 15 percent of net for ebook right is ridiculous.  Believe it or not, I received 30 percent of net from a medium-size publisher for a print edition (tradeback and not hardcover) of my best-selling book and still receive it today. For my self-published “How to Retire Happy, Wild, and Free”, I was offered 22 percent of net by a major publisher… Read more »
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Carolyn Jewel
4 years 8 months ago
This is a legal question. Liz needs to consult an attorney and probably an agent as well, though there are several agents who are also attorneys. My agent has an attorney she uses for legal issues just like this one, so Liz’s agent (if she has one) might be of assistance in a referral. This sounds like a rights grab to me. The percentage offered sounds pretty dreadful. They’re hoping you’ll cave in. Don’t. As JamesScottBell points out, the case law is on the author’s side in this matter. Just because the publisher commissioned the artwork doesn’t mean they’ve retained… Read more »
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[…] Speaking of backlists, media professor Jane Friedman investigates whether an author holds e-rights to her traditionally published books.   […]

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For the Traditionally Published: Do You Hold Your Own eBook Rights? « Resulting Consulting: Book Branding
4 years 8 months ago
[…] This is a link to an article regarding just such a question: a traditionally published author making reasonable money being offered a relative pittance by their publisher with the claim that 15% royalty on electronic delivery is the maximum they are allowed. Additionally, the author is also being told that if they don’t accept it, they will continue getting the same 5% they’ve been getting for the print sales and that the publisher technically has the rights to ALL printed material whether on dead trees or in ones and zeros (yeah, that’s sounds a bit fishy). And what if… Read more »
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[…] Do You Hold E-Rights to Your Traditionally Published Book? (Jane Friedman) […]

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2 years 5 months ago

[…] rights – (n) a slippery slope, even if you self-publish. […]

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