FOREIGN RIGHTS: WHAT ARE THE BASICS?
By Kathe Gogolewski
You’ve exhausted the domestic market
and have started eyeing the possibility of selling your book in another country. Maybe you think your book about bullfighting
might fare better in Spain. Or perhaps your
Melbourne murder mystery might sell like hotcakes in Australia. Whatever the reason, you are now wondering about foreign rights. What’s involved, and do
you need a lawyer? Should you let you publisher handle it? The answers, in order, are: a lot, probably and maybe.
This article does not pretend to take the
place of your publisher or a lawyer, but as it pays to know the basics before even starting the conversation with one or the
other, I will attempt to offer just that: the basics.
To begin, it’s important to know who
owns the foreign rights: you or your publisher. Original copyright belongs to the author, of course, but this right can be
“sold” to a publisher. Other parties may also be included in the “rights” package, including illustrators
and editors. All of this needs to be reviewed prior to negotiations.
There are two types of foreign rights deals.
The first involves the translation of your book into another language. The owner
of the foreign rights, whether it’s you, your publisher or your agent, can license the translation. The second type
of deal involves the English reprint of the book for sale in another country.
In both cases, initial negotiations are centered
around royalties, and if the book has experienced a level of success in the US, the royalty may be larger. Hopefully,
an advance against the royalty will be included in the contract. The equation will also include the size of the territory,
or country. A smaller country with fewer resources, such as Belgium, will likely negotiate for smaller
royalties than, say, France. This also applies to translations: the more resources available to the foreign agent, the greater
the possibility for larger royalties.The advance, if there is one, will likely be based on the retail or cover price of the
book. Sometimes, this can get complicated. For example, royalties for foreign book clubs and license fees are sometimes included,
which reduces the royalty to the publisher and author.
1) The foreign publisher needs to understand
that the right to export or distribute to other countries is prohibited. Without this language in your contract, a foreign
publisher may attempt to sell your book to exporters that are “in” their territory. Language needs to be included
to prohibit this.
2) Foreign rights may be sold to separate
territories with a separate license for each territory, or a single deal can be struck with one license for several territories.
For the latter, if the book sells well in one territory, the excess royalties after recovering the advance should not go to
other territories to recover those advances. To avoid complications, negotiate this up front. The legal term for it is “cross-collateralization.”
3) Be wary of the clause that reads: “The
rest of the world is an open market.” This clause may kill other sales for you. What if, say, you have sold to Spain with this clause
in your contract. You will likely have a difficult time making a deal in any other country that speaks Spanish, such as the
Spanish speaking Latin American countries. You will be competing with the original licensee. It’s in your favor to prevent
open market sales in your original contract.
4) The considerations in #3 take on added
import when dealing with common markets. These include NAFTA (North American Free Trade Agreement), the EU (European Union)
with 25 member states, as well as many other trade relationships throughout the world. These unions are formed to create trading
blocks that benefit the member states, naturally. Even if the union requires that when a deal is made in one territory, the
licensee has the right to sell the book in all member states, this can be prevented with specific contract language.
5) And finally, remember that a separate copyright
is created if your book is translated from English to another language. The laws for copyright in the foreign country may
be different from yours, and this may require investigation. The ownership of this copyright is another item to include in
These are some of the major issues to keep
in mind, but there are more. Often the country of interest will generate its own set of specialized considerations. It’s
important to protect your interests by using an experienced negotiator. This may be your publisher, but even so, it doesn’t
hurt to pass the contract by an experienced lawyer that deals in foreign rights. After the contract is signed by all parties,
the deal is set, so you’ll want to do your homework prior to signing.