The Grant of Rights: very boring, very important
This post is brought to you by seeing a series of posts on Facebook that demonstrated how many authors don’t understand rights. It’s long and boring and about contracts. Read it anyway.
Right. There’s been a rash of posts about the T&Cs of Apple’s new AI narration service whereby they offer to create a machine-narrated audiobook with no upfront cost to you.
I’m not here to talk about how, when you’re offered something for free, that usually means you’re the product. Or about how authors who throw voice artists under the bus will get zero sympathy from me when the flood of AI novels destroys Kindle Unlimited. Or how come so many people apparently haven’t seen Terminator 2. If you need my stance on AI, I’m insisting in anti-AI clauses in all my publisher contracts (human narrator for audiobooks, no AI on the cover, you may not feed my books into the maw for machine learning) and am prepared to walk away from a contract that doesn’t include them.
But we’re not talking about AI in this post. We’re talking about how to read a contract.
Here’s the text of one of the many posts I’ve seen on the subject of the Apple contract, all with a ton of shares with ‘Watch out!’ and angry face emojis. I picked this one out to quote solely because it was the first one I saw this morning. I've messed around with the text to prevent searching because I really don't want to pick on an individual here: it's just one example of a widespread misapprehension.
Apple are offering authors their new audiobook generator. It's FREE! They'll make and sell an audiobook for you! FREE AUDIOBOOK! They'll even make you an AI cover if you don't have one!
Here's their contract:
"By using the service (Apple Books Digital Narration), I acknowledge that Apple owns all rights, title, and interest in and to the audiobooks created by Apple Audio AI, including all worldwide copyrights and other intellectual property rights therein."
Did you pay attention to that, or were you just looking at MAKE A FREE AUDIOBOOK? Let's look at it again.
"Put your ebook into our AI software for an audiobook that we will own all rights to. All rights."
They don't even have to pay you royalties. They probably will, for the first while, so you spread the word about their AI audiobook offer. But they don't have to, and there's no reason for them to. And when they stop paying--or pull back previously paid royalties--you have no legal grounds to protest, because you signed away all the rights. And if they choose to keep selling their audiobook, maybe after you decide you'd rather sell a version by a human narrator, I guess you should have thought of that before giving them all the rights.
This person is spot on about not trusting this offer (as well as their points about the ethical bankruptcy of how AI has been trained, which I didn't include). They are entirely wrong about the meaning of the clause.
We’re now going to talk about Grant of Rights. First a story I have told before, several times:
At a conference contracts panel
Me: Hands up who isn’t clear what “Grant of Rights” means in a publishing contract.
[most hands go up]
Me: Keep your hand up if you’ve signed a publishing contract.
[most hands stay up. Embarrassed laughter.]
I’m side eyeing all of you.
The Grant of Rights in a standard contract might go:
The Author hereby grants and assigns to the Publisher, during the full term of copyright in each country comprising the Territory and any renewals, continuations, and extensions thereof, on the terms herein set forth, the exclusive right to publish, print, distribute, license and sell the Work in any and all formats licensed herein, in the Licensed Language(s), throughout the Territory. The foregoing grant of rights includes, without limitation, the exclusive right to exercise all rights in the Work referred to in Paragraphs 3B and 3C hereof. All rights not expressly granted to Publisher pursuant to this Agreement are reserved to the Author.
My God that’s boring. But if your eyes glaze over this in your own contract you’re making a very big mistake because this is where the crucial stuff lies.
First thing to note: your book is not called a book here, it’s called the Work. This is important because the process of publishing might sell your story as a paperback, an ebook, an audio book, a print and audio version in French, the basis for a movie, and the inspiration for a line of amusing mugs. The Work (your manuscript) is the basis of all those books and book-related things. We’ll come back to this at the end.
The grant of rights is the basis on which publishing is built. It defines what you let the publisher do with your Work, and it does so in the following areas:
- Term (how long they have the rights for)
- Territory (what countries they can sell it in—it’s not always the whole world)
- Format (what formats they can sell it in eg print, e, audio)
- Language (what language they can sell it in—just English or more?)
- Subsidiary rights (using the Work in other ways beyond the main publication, eg the film and the mugs)
If you grant rights “during the full term of copyright in all languages and all formats throughout the world”, that means the publisher basically controls everything till after you’re dead (subject to any termination clauses). They can publish in all languages, formats and territories themselves, or they can license rights to other publishers. They can, for example, sell the paperback and ebook themselves, but license audiobook rights to Tantor, and hardback rights to a publisher that does those cute special editions with the sprayed edges (format rights). They can sell US English print and e publication rights to a US publisher, global French translation rights to a French publisher, and Spanish translation rights in two separate deals to Spain and to the US (language and territory rights). Those rights might be licensed for a limited period, eg five years, after which the agreement would need to be renewed or terminated (term of rights). If you've allowed it, they might also be able to license the Work to be published in comic book form, or turned into a radio serial or a blockbusting movie (subsidiary rights). For all of these, your contract will specify how the money is divided between you and the publisher.
You don’t have to agree to such a sweeping grant of rights. You might sell a publisher English language print and e rights for the UK and Commonwealth only, perhaps on a seven-year term. If that’s the case, you can make the USA publication, audiobook, and movie deals separately, and the first publisher gets none of that money because they have none of the relevant rights.
Remember: All rights not expressly granted to Publisher are reserved to the Author. (This phrase needs to be in there. Check for it.) You can reserve a variety of subsidiary rights even if you’ve granted full term rights for all languages/formats/territories--for example, you might insist on hanging on to TV and film rights. This can be very upsetting for the publisher if, to take a totally random example, they publish an insanely successful seven-book children’s series by a future TERF but the film and TV and merchandising rights are all reserved to the author so the publisher don’t get a penny for any of it.
Got that? Rights are everything in publishing, so a publishing contract is, basically, all about spelling out who has what rights. This is why they are so very long and dull.
Back to Apple!
OK, let’s look at that clause again. Bear in mind:
- It is one clause in a contract that will be a lot longer.
- You haven’t seen the rest and nor have I. I chose not to look at it before doing this post because I’m not here to defend Apple’s contracts: I’m here to tell you what to look for when you see a post like this.
Let’s repeat the claim in this post, which is roughly what all the other posts I’ve seen have said:
"Put your ebook into our AI software for an audiobook that we will own all rights to. All rights."
They don't even have to pay you royalties. They probably will, for the first while, so you spread the word about their AI audiobook offer. But they don't have to, and there's no reason for them to do it. And when they stop paying--or pull back previously paid royalties--you have no legal grounds to protest, because you signed away all the rights. And if they choose to keep selling their audiobook, maybe after you decide you'd rather sell a version by a human narrator, I guess you should have thought of that before giving them all the rights.
And here’s the clause again:
"By using the service (Apple Books Digital Narration), I acknowledge that Apple owns all rights, title, and interest in and to the audiobooks created by Apple Audio AI, including all worldwide copyrights and other intellectual property rights therein."
What does this clause cover? Here’s a hint: it’s a format-rights clause. See the bold.
"By using the service (Apple Books Digital Narration), I acknowledge that Apple owns all rights, title, and interest in and to the audiobooks created by Apple Audio AI, including all worldwide copyrights and other intellectual property rights therein."
This clause specifies rights to the machine-voice audiobooks Apple will create. It says that you, the author, do not own the machine-voice Apple-generated audiobook. Apple own that, so if your contract with them terminates, you can’t keep on using their HAL-voice monstrosity afterwards: it's theirs, not yours.
And that, folks, is literally all it says.
This clause does not say:
- Anything about audio rights in general. It does not specify that Apple take all audio book rights, or that you are unable to release a human-generated audiobook. I don’t know what the rest of the contract says, but this clause is solely about the machine-voice Apple-generated audiobook.
- Anything about royalties. I don’t know what the royalty split is in the rest of the contract. But this clause doesn’t affect royalties in the slightest. If they agree to pay you elsewhere, this clause does not allow them to stop.
- That they can “pull back previously paid royalties”. I...what?
- That “you signed away all the rights”. I hope it's now clear that you didn’t.
- That “if they choose to keep selling their audiobook, maybe after you decide you'd rather sell a version by a human narrator, I guess you should have thought of that before giving them all the rights.” This is about term and exclusivity, neither of which are mentioned in this clause. How long can Apple sell their machine voice version for? Are you able to sell a competing version with a human narrator at the same time? How can this contract be terminated? These are all excellent questions you should ask, but you’re not going to find the answer to any of them in this clause.
- That they can continue selling their version indefinitely. They can keep selling it only for the term of their licence. Of course, that licence might be a very long time, so you'd want to check that very carefully. But that should be spelled out at the beginning of the contract; this clause doesn't alter it.
Again, I am not defending Apple in any way. For all I know, the rest of this contract is written in human blood and grants them your soul in perpetuity. All I am saying is, you the author need to be able to read a clause like this and work out what it means, and indeed what it does not mean.
Another post I saw on this clause suggested that it grants Apple the film rights “if someone listened to the audiobook and wanted to do a film based on that”. This is based on a misreading of “all worldwide copyrights and other intellectual property rights therein” in this clause which, again, applies only to Apple’s machine-voice audiobook.
Remember how we talked about the Work at the start of this? (Go back and reread if you’ve been stunned into amnesia: it's important to understand this.) Subsidiary/other rights to the Work are not automatically included without being specifically agreed. If a right isn't specifically granted in the contract, it's reserved to the author. (This is why you don't allow language like "in any format not yet created" because that's literally the publisher trying to grab unspecified rights. No. Bad.) The publisher of a machine-generated audiobook can no more grab film rights to the entire Work in a sneaky unspecific licensing clause than can the people who license rights to cute sprayed edges hardbacks, French language editions, or mugs.
Term. Territory. Format. Language. Dig them out of the contract verbiage and you will understand what you’re selling, licensing, or giving away. And don't sign a contract until you understand them. There are some really bad contracts out there, with wildly overreaching clauses, and if you can't grasp the normal language, you won't stand a chance of spotting the dodgy stuff.
A more general post on contracts here.
I am not a lawyer and if anyone sees anything I've got wrong I will gladly correct it. However, I worked as an editor for twenty years in various publishing houses and am now a full time author so I have read a lot of contracts (and signed a few terrible ones).
My next book is A Nobleman's Guide to Seducing a Scoundrel, out in September. You probably want to get book 1, The Secret Lives of Country Gentlemen, while you wait.
If you comment here on the topic of AI or that terfy author I'm just going to delete it: this is about contracts and rights.