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Contracts 101:

The Grant of Rights Clause


by Jane Friedman

The legalese writers need to understand to


protect their long-term earning potential

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I
n order to understand and negotiate a contract in her best interests, a writer needs to have
some familiarity with the legal language of publishing. Whether applied to books, journalism,
or blogging, the contracting process is frustratingly opaque. Most writers have limited insight
into what other writers contracts look like, or what changes to a contract are common. Few writ-
ers and agents speak openly about specific contract language theyve successfully negotiatedand
most publishers or outlets dont make their contracts available for public scrutiny. Short of hiring
a lawyer, which is expensive and often impractical, what do writers need to know before they sign
on the dotted line?
The issue of contract literacy is a big challenge that Scratch plans to explore on an ongoing
basis, in many different ways. As a first step, were introducing Contracts 101, a series of articles
breaking down some of the language typical to writing contracts into plain language and com-
mon examples. Each article will cover in-depth different aspect of contract legalese, and address
the basic issues at hand as they apply to books and magazine/website articles, in both print and
digital forms. It will also come with a tl;dr a glossary for quick and easy reference. Were
starting with the most essential info first: The grant of rights clause.
Disclaimer: I am not a lawyer and this is not professional advice.

The Grant of Rights


The grant of rights is often at the very beginning of the contract, and specifies what rights you
are granting or licensing to a publication. The act of granting rights does not traditionally
mean giving up your copyrightor at least we dont think it should (more on that later). For our
purposes here, copyright refers to the base-line ownership of your work. The moment you
write something, or commit ideas to tangible form, it is protected under the U.S. Copyright Law,
and you own the copyright. Granting rights to your work simply means you are granting the
publication permission to publish a specific piece of workthat you own copyright inunder
certain circumstances, in certain formats/venues, and for a stated amount of time.
Note: This article entirely sets aside the question of compensation. Only you can decide what
money is appropriate for your situation and the work in question. The more rights a publication
asks for, usually the more a writer should be getting paid. Its important to note that regardless of
what you are paid initially, the grant of rights can impact what youre paid in the future, as well
as your own ability to resell or repurpose your work.

Outlet: Periodicals or Websites


Print-Based. Before these wild days of the Internet, a typical contract for a magazine article
in the United States asked for first North American serial rights. Essentially, this granted the
magazine first dibs on publishing your work in print, in North America. Often the writer would
also need to promise not to resell that piece, or repurpose it, for a specified time period after
publication. Furthermore, if the magazine wished to reuse the work (for example, reprinting the

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piece in a special issue), a reprint fee would have to be paid or negotiated. This is still how many
print-based contracts work.
Here is a generic example of what this looks like in a typical contract.

Writer hereby grants and assigns to the Publisher exclusive first North American print rights for
ninety (90) days after the Publishers first publication of the Work. In the event Publisher re-
prints the Work in any of its products, Publisher shall pay to Writer an additional sum of 10% of
the original Compensation for each such reprint.

If you signed the example contract above, you would be giving the publisher an exclusive right
to the material, in print in North America, for 90 days. If they want to reprint or use it in another
form, they need to pay you 10% of your original rate each time they do so. If they want to print
it on another continent, theyll need to negotiate a new contract or clause with you. (Note that
this clause says nothing about online or digital rights; with print contracts, those areas are often
covered separately, sometimes in a subclause. Well get to that in a minute.)
Exclusive and nonexclusive are red-flag words you should look for and carefully consider
in every publishing contract. Broadly speaking, nonexclusive works in your favor and gives you
more flexibility; think of it as practicing free love for your article. You are sharing the rights
with a publisher, and you can also share with other people. Exclusive means the publication is
asking you to put a ring on it, at least for the specified period of time in the contract. That ties up
your rights and abilities; it means the publisher is the one and only party to use, publish, or dis-
tribute the work in question. Exclusivity, therefore, traditionally comes with better compensation.
Some contracts will list exclusive and nonexclusive grant of rights separately, for clarity.
Whats a reasonable period of exclusivity? It often depends on the frequency of the publica-
tion, as well as the nature of the material itself. A quarterly publication may be well within its
rights to ask for 90180 days of exclusivity, while a weekly may ask for a fraction of that. The
longer and more important the pieceand the more the publication has invested in itthe more
justifiable it is to ask for a longer period of exclusivity.
And while most writers rightly focus on that first sale, evergreen material (timeless articles)
can be a gift that keeps on giving. For example, if you write a piece on how to interview well, that
information isnt likely to change over time. Its content you can revisit or repurpose for other oc-
casions. So pay attention to those reprint rights. Dont automatically grant a publication the right
to reprint without further payment or notification, and negotiate higher reprint payment percent-
ages if you can. (Well get further into second rights in our next installment of this series.)
Online or digital rights for print-based material. Its nearly impossible for a writer
to sign a print-based article contract without also granting some digital rights to the material.
By law, a print publication is allowed to include your work in any of its digital replicas. Digital
replica refers to the replication of the print issue in a digital form, where the print presentation
remains intactincluding advertising, article order, etc. nowadays. For example, when The New
Yorker released its entire archive of issues going back to 1925 in digital form, they did not need to

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secure further rights or pay the contributors, because they are using and distributing replicas of
the print issues.
Writers have more room to negotiate digital rights when it comes to how their work is made
available out of context of a full issue. Out of context usually means: (1) on the publications
website, either for free or to subscribers only, and (2) as part of online database access and insti-
tutional access. The most favorable scenario for the writer is a nonexclusive arrangement. This
means that the publication is allowed to keep your article available as part of its online or digital
archive for as long as it wishes, but without preventing you from reselling or reusing that material
elsewhere. For example, you may want to make the piece available in full at your own website, sell
it in an anthology, or negotiate translation or foreign rights. Other stipulations you can negoti-
ate include (1) only making your material available behind a paywall, if the publication uses one,
and (2) limiting the time period during which your material publicly appears on the publications
website.
It pays to study up on the publications print-online strategy, and how it markets and promotes
content from the print issue. In the era of the personal brand, writers are trained to value
exposure over exclusivity, but it may be important to limit ways in which a publications readers
have the advantage. On the one hand, you want to ensure youre getting paid appropriately for
how your work is used. But neither do you want to be that writer whose piece misses out on good
marketing and promotion, or word of mouth, because you refused to give the publication any
permission to use your work in an online context. Each writer weights these choices differently:
scarcity may sometimes increase a pieces value in the long run, but its also nice if your mom (or
a potential new editor) can read your article online.
Here is a generic example of what an online grant of rights might look like:

The Author agrees to grant to the Publication: (a) nonexclusive worldwide online rights after first
publication of the Work; and (b) the perpetual, worldwide right to reproduce, display, and distrib-
ute the Work in digital, individually retrievable, form via a website or database associated with the
Publication identified above.

Agreeing to this clause allows the Publication to keep your work available on its website or
other online properties, in individually retrievable form (out of context of the full issue), as long
as such sites are associated with the Publication. However, its a nonexclusive grant, so it also al-
lows you to reuse and resell the Work however you wish. Also note the use of worldwide; with
very few exceptions, worldwide online rights must be granted (since most publications make their
online media accessible to the world), but this doesnt affect the limiting of print rights to North
America.
Many contracts now also include extensive language that ask for nonexclusive worldwide rights
to distribute your work in any medium, whether now known or hereafter developed, a phrase
that might give you the feeling that within a few years, your work is going to be distributed to dis-
tant galaxies via telepathy. If its a nonexclusive right that extends only to the Publication, theres

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less to worry about. You should ask questions or try to negotiate this phrase when (1) its an
exclusive grant of rights that prevents reuse or resale, (2) its a grant of rights that extends to third
parties, or (3) its a grant of rights that takes your work out of context of the issue it appeared in.
Such grants arent automatically bad, but its important to understand where your work might
appear and whether the Publication is earning additional money in such casesespecially if
those earnings relate to the specific retrieval and distribution of your piece rather than the entire
issue the Work appears in. If youre already familiar with the Publication and its business model,
you may already know the answer to these questions. For example, you may have an article that
appears in Big Elite Literary Journal, and that journal may have a standing agreement with a
distribution company that serves universities and libraries. The journals contentand your
pieceis made accessible to any library or university community member who is able to access
the database. In many cases, publications receive money for the number of views their content
receives. While its likely unreasonable to ask for continuing royalties based on that scenario, you
could ask for higher payment upfront, knowing that the journal has an additional income stream
from distributing your content.
Online-only or online publication contracts. Everything discussed above still pertains
to online-only or online-publication contracts. Print rights may not be mentioned in the contract
at all, or print rights may be lumped in with everything else, almost as a second thought. In the
latter scenario, the publication is often reserving the right to use your material in print on the
off-chance their business model changes or a new opportunity emerges. Ask the publication why
theyre asking for print rights and what that print use might entail. Depending on compensation,
you might negotiate that the print rights expire after a specific time period, or you might strike
print rights entirely, especially in cases where its just a rights grab, and no print-related compo-
nent exists in connection to the online publication. Ideally, print use should be contingent upon
you granting permission and negotiating a separate fee and contract.
An online-only contract thats favorable to the writer may ask for limited exclusivity (generally
ninety days or less), and nonexclusive rights thereafter. Many online-only contracts may ask for
blanket, nonexclusive reuse or repurposing of your material for e-books, digital collections or an-
thologies, special digital magazine issues, etc. If the publication is profiting off such use, consider
using that as a negotiation tool to ask for more money, or see if you can strike such reuse from
your contract if you dont see any benefit to your work being repurposed in that way. At the very
least, you should ask to be notified when reuse occurs.

Stand Up for Your Copyright


Unfortunately, Scratch has lately seen a trend in online-publication contracts that are very unfa-
vorable to the writer, and amount to work-for-hire agreements. Until recently, most work-for-hire
writing contracts occurred in situations where a writer is an employee of a company and produc-
es work, such as advertising or other copywriting work, that they dont and cant claim owner-
ship of. Such contracts have traditionally not been the norm for journalistic or creative works.

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These types of contracts take all rights to your material, including your copyright, and you lose
any ability to reuse or resell that material. The contract language may not say work for hire,
but may instead say that your work is the sole and exclusive property of the publication or the
publications corporate parent. It may also slip the phrase all rights into a complex sentence
with multiple clauses, so its hard to unpack. In some tech-based venues, the contract may define
a piece of work as a development or invention, and demand ownership of it in that way. If you
sign such a contract or agree to give up all rights to a piece, make sure the compensation is ap-
propriate for the nature of the work, because youll never be able to earn another dime off it, or
even use it in a future collection of your own work, unless you negotiate a contract provision that
grants you that permission.
You might wonder how you would ever be able to make money off, say, a blog post in the
future. Its true that the possibilities for that are decreasing as the pace of new media increases.
But do you plan on ever writing a book, which may be expanded from a previous article or essay?
Publishing a collection of essays or reviews? Syndicating an opinion piece or column? Selling film
or television options? You cant do any of that if you give up your copyright. In addition, a publi-
cation can do whatever they want with the workincluding rewriting it or publishing it without a
byline or adding another persons byline. Most publications wont set out to do this with malicious
intent, but if you dont own your rights well, you dont have any rights.
Anecdotally, were seeing new twists on the work-for-hire contract more frequently with
blogs and other new media properties. The Columbia Journalism Review recently took notice of
the trend. This type of rights grab may be a byproduct of the increasingly blurred lines between
tech companies and new media companies and may result from a perceptionwhether man-
dated or impliedthat a web property is less valuable to investors or advertisers if they dont own
everything on the site.

Other Details: Read the Fine Print


If youre dealing with a print publication that is part of a family of publicationsor a media
corporationread your contract language very carefully. They usually ask for rights that are not
limited to the publication in question, but the entire family of publications, or the entire corpora-
tion.
Ask plenty of questions when the grant of rights refers to third parties or the authorization
of others to use or publish your material, especially without notification to you. Youll want to
know who the likely others are.
Subrightswhich should be spelled out somewhere in the contracthave the potential to dra-
matically impact your future earnings, since they involve movie/TV deals, book deals, and other
adaptations or versions of the Work. Cond Nast recently changed its boilerplate contract to give
the company an exclusive 12-month right to option dramatic and multimedia rights to the Work;
the New York Times covered industry reaction/outrage here.
Make sure the contract doesnt ask you to work exclusively for the publication in any way,

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except in specific and limited circumstances. For example, a publication might ask you work
exclusively for them on a particular beat or column (TV criticism, election coverage, etc), or it
may ask that you not write on X topic within 3060 days of a specific piece appearing. Requested
exclusivity should be reasonable and not prevent you from rightfully earning a living by writing
for other publications.

Book Contracts
As with magazines, the digitization of print has seen book contracts evolve, with the addition of
terms and clauses you wouldnt have seen fifteen or twenty years ago. When it comes to the grant
of rights clause, you can generally find three basic models.
Life of copyright contracts. This describes your typical traditional print book publishing
contract, which potentially remains in effect for the Works copyright term (life of the author, plus
70 years, in the United States), until specific conditions are met that revert rights to the author.
Fixed term contracts. These contracts have a set time limit, e.g., five years, after which all
rights revert to the author.
Work-for-hire contracts. As with magazine contracts, with work-for-hire agreements, you
are often giving up all rights to the work, including copyright.
None of these contracts is necessarily more favorable than the other; much depends on the
work being contracted, the compensation, and the authors goals. Life-of-copyright contracts
should be expected from any commercial, New York publisher. Fixed-term contracts are used
more often at e-book or digital-only publishers. Work-for-hire is common with publisher-devel-
oped series, book packagers, and ghostwriting projects.
Life-of-copyright contracts. While it sounds ominous, life of copyright contracts are not
expected to last until the copyright expires. Rather, the contract typically remains in effect for as
long as sales occur. The rights reversion clauseseparate from grant of rightsdetails specific
conditions under which the rights can revert to the author, and may even state the sales figure
that must be sustained for the publisher to keep the rights to sell and distribute the Work.
Here is a generic example of what a life-of-copyright grant of rights looks like:

The Author hereby assigns to the Publisher the exclusive right to publish, reproduce and distribute
the Work and derivatives thereof in all languages in any and all forms/media whether now known
or hereafter invented and to exercise and grant to third parties any of said rights to the Work,
throughout the world, for the full term of copyright available to the Work.

What this means is the Author gives only this Publisher the right to publish and distribute the
book around the world, in any language, in any conceivable format thats now in existence or that
might be invented. It also gives the Publisher the ability to sell or assign these rights to anyone
else. This agreement has the potential to remain in effect for as long as the copyright lasts (until
the work falls into the public domain).

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There are several areas here that are negotiable, depending on the publisher; this is where an
agents experience is invaluable, since they likely know what a typical deal looks like from each
publishing house or imprint, and where they can push the hardest.
in any and all forms/media whether now known or hereafter invented The publisher is
asking for rights to all formats and mediums, including hardcover, paperback, mass-market
paperback, e-books, audio, video, apps, etc. In a good contract, another clause will outline
specifics on how the author is paid for each medium. An agent will typically reserve some of
these rights and sell them separately.
in all languages This example gives the publisher not just World English rights, but
rights to sell the Work in translation. The subrights section of the contract will detail how
much the author earns on translations that the publisher sells.
throughout the world Some book contracts are limited to North American rights or
World English rights. This example covers every country. Before granting such rights, you
should find out if the publisher has a track record of selling outside North America. Note:
Foreign rights are different than translation rights. Foreign rights involve licensing the right
to sell the original (English-language) edition in other countries/territories; translation rights
involve licensing the right to translate, distribute, and sell the translated work in a specific
country or territory.
for the full term of copyright This phrase makes this a life-of-copyright contract. It
does not mean the author gives up his copyright. But the author does grant the publisher a
license that could potentially extend for the life of copyright.
Any good agent would tell you that the clause example above is not very favorable to the
author, but if the advance and royalties were right, it could be acceptable. Most agents would
negotiate for an amended clause that limits the publishers rights grab, or at the very least puts a
limit on how long the publisher can exploit certain rightsmeaning the author can get certain
rights back within a short timeframe if the publisher has not sold or made use of them.
And that brings up another important issue: Make sure that the grant of rights corresponds to
the publishers actual ability to exploit those rights. Small press contracts are of particular con-
cernwhere the publisher claims a menu of rights theres no way it can exploit. Before granting
translation rights, for instance, find out whether the publisher has ever sold any translation rights.
Finally, for any life-of-copyright contract, be sure to closely review termination or rights rever-
sion clauses. You need to ask for specific sales minimums that automatically trigger rights rever-
sion, so the publisher cant sit on your book indefinitely by arguing that an e-book listed on its
website constitutes in print, even if the ebook isnt selling a single copy. In future installments
of this series, we will get into the details of such reversion clauses.
Fixed-term contracts. The grant-of-rights clause will look much the same for a fixed-term
as it does for a life-of-copyright contract. However, instead of an indeterminate end date, the
publishers rights to the work expire at a specific timeunless it automatically renews. If its not
clear how to terminate the contract in the case of auto-renewal, add that language to the con-
tract.

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Fixed-term has been a go-to model for e-book publishers, since e-books dont really go out
of print (which often initiates a rights reversion in a life-of-copyright contract) and also because
such publishers are typically newer and have to offer more flexibility to be attractive partners.
Given how fast the e-book landscape is evolving, few authors are willing to tie up their rights for
very long (more than one to three years), especially if their publisher isnt keeping up with the
pace of change.
A note about both life-of-copyright and fixed-term contracts: Victoria Strauss of Writer
Beware has advised us that temporary transfer of copyright is also a problem in these contracts.
Sometimes small presses take possession of copyright temporarily, and then give it back when the
contract ends or the book goes out of print. This can be a nightmare for authors if the publisher
goes belly up without returning rights.
Work-for-hire contracts. Authors who agree to work-for-hire are relinquishing all rights
to the work. In comparison to the other contracts, theres not much to negotiate here except the
compensation, which is typically a flat fee and possibly includes royalties.

Parting advice
Book contracts are usually far more complicated than a magazine contract. If you dont have
an agent, consider retaining one on an hourly basis to assist you. But if you must review one on
your own, understand that the grant of rights is only the opening statement of a complex agree-
ment, which details all the ways in which those rights may be exploited, if the author is consulted
beforehand or has approval on certain deals, how third parties might be involved in that grant of
rights, and what compensation can be expected from rights sales.
Did you make it this far? Congratulations! If we were giving out badges, youd receive one to
pin on your writer-education sash. If youd like more information or guidance, we recommend
these resources:
Kirschs Guide to the Book Contract by Jonathan Kirsch. Yes, its dated, but many contract basics
have not changed.
Resources for Authors from SFWA & Writer Beware website. An archive of helpful informa-
tion related to the business of publishing
The Authors Guild [authorsguild.net] offers legal services to its members.

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