The publishing rights squeeze

What it is, and why I want all writers to know about it

If you think AI is the biggest threat to a writer’s ability to earn a liveable income, this discussion might just make you think again. In fact, based on my recent research I wouldn’t be surprised if the publishing rights squeeze turns out to have as much of an impact on writers as AI.

Before we get into this super important topic, here’s a brief recap of how book rights work. When authors sign a contract, they receive money as an advance in exchange for publishers taking control of the rights to publish the work in certain formats. An advance is what it sounds like: a fee given upfront which must then be ‘earned out’ through sales before the author can begin earning royalties on the book. Many authors will never earn out their advance, therefore they won’t see any more money than this initial sum, and the amount also signifies how many copies of the book the publishers think they can sell - which makes the advance figure very important. However, just as vital, but often overlooked in the excitement of book deals, are negotiations around which rights the publisher is asking the author to give away. Such agreements can be very specific – e.g. the publisher can publish your book in one country, and in one format (such as print, ebook or audio) – but they can also be broad, and many authors choose to give their publishers worldwide rights. This allows a publisher to negotiate deals in other countries on the authors’ behalf, to the mutual financial benefit of author and publisher. However, while it almost always suits a publisher to take as many rights as possible, an author’s decisions around rights are much harder, and yet new authors often don’t realise how important these choices are until months or years after publication. And here’s where it gets interesting.

When I first began signing writing contracts, sixteen years ago, rights discussions were quite different. For a start, ebooks were still a novelty (which makes me feel ancient!). And at that time (2008) there was a lot of discussion and negativity around the ebook format, because no one likes unpredictable change, and everyone was terrified about a) what ebooks would do to the print publishing industry and the book trade, and b) missing out on money if they didn’t own the ebook rights. Publishers were therefore quick to include ebooks in their contracts – which was easy to do because the industry was only just taking off and rights weren’t being taken away from anywhere else in the industry. The ebook terms back then were usually that the author would receive 20-25% of the net sale price, and this has remained standard for a lot of contracts, although I’ve also had agreements with far more generous terms. And while ebooks have certainly taken their share of the market, it hasn’t been the cataclysmic event that some foretold. In fact, the US market demonstrates a continued strong preference for print books with 827 million units sold in 2021 compared to 164 million ebooks (Source: Publishers Weekly), and a 2021 survey by the Pew Research Centre indicates that young readers (18-29 years old) in the US still prefer print books. Although Covid’s impacts on the industry have blurred some of these trends over the last few years, it would appear that print books have weathered the ebook storm.

Nevertheless, thanks to our increasingly complex digital world, standard rights agreements continue to change and expand. In the last decade, audiobooks have also been on the rise, with eleven straight years of double-digit growth to 2023 (Source: Publishers Weekly/The Audio Publishers Association). However, in contrast to ebooks, specialist audiobook publishers have existed for a long time as a subsidiary to the bigger publishing industry, so when I signed my first contracts, the rights were kept separate. This meant we could sell my print rights to one publisher, then take my books to an audio specialist who would hopefully know how to capitalise on this format (although the results have varied wildly – I’ve had some terrific success with audio and some utter fails). More importantly, by selling these rights separately, I would also be offered additional advance money. It wasn’t always a lot, but when you’re trying to make a living as a creative, a few thousand dollars from different places is a significant boost to income.

However, as audiobooks became more popular, publishers decided that they didn’t want to separate these lucrative rights any more, so they negotiated deals with audio publishers or set up their own audio departments, and most contracts now include audio agreements as standard. So unless you have enough influence as a writer (i.e. you’re already earning the publisher so much money that they are prepared to bargain with you) it is very difficult to persuade a publisher to separate these rights. Of course, if your publisher has an excellent audio department it might be a good idea to include all rights, but if audio is more of a secondary focus for them, this could be a wasted opportunity for you. The point is, publishers have only gains to make here, and little to lose, while authors have to decide whether it’s worth ceding more control and money – because although the audio rights are now incorporated in deals, many advances have not increased to reflect this.  And new authors won’t even realise that these were once separate negotiations.

One of the reasons our agents are so important is because they look carefully at rights when contracts are being negotiated – but with so many new developments in the industry it’s impossible to cover all bases and ‘future proof’ everything. Therefore, at the start of this year, one of my books, already in audio, was pursued for a podcast series (similar to the one that was adapted by Listnr from You Don’t Know Me and became a chart-topper in 2023 with numerous award short-listings). However, the audiobook rights that we’d already sold included ALL audio adaptations – so there was no possibility of a deal. Never mind that the audiobook publisher has no intention of producing a limited drama series, or that this might even bring more attention to the audiobook version of the work, I won’t ever be able to make that deal. Therefore, we’ve had to forgo the extra money and creative opportunities this would have yielded – and, just as importantly, we lost the extra chance to promote my work as a result of the production. However, without giving these additional rights away in the first place, I wouldn’t have been able to make the initial audiobook deal at all - which I really needed to stay afloat at the time. It’s a perfect example of how a publisher has all of the power and yet suffers few of the pitfalls in rights negotiations. I’ve also always struggled to get UK deals (even though many of my books are set there) because my Aus/NZ rights are already taken and most UK publishers are not interested without the Australian market share. And I’ve been hearing recent talk of TV and film rights now being swept up in certain publishers’ rights bundles, which, as far as I’m aware, is a new development in the industry. I’m not entirely sure of how they would divvy up such profits between themselves and authors, but I can guarantee you that the author will not come out of this scenario wealthier than they would have done if they had been able to keep such rights as separate negotiations.

Make no mistake, the ongoing amalgamation of rights in publishing contracts will leave some authors unable to maintain a sustainable career. If you follow any commentary around author earnings you’ll know that they vary wildly and can fluctuate vastly over time. I’ve had years where my earnings have been so low I haven’t owed the tax man a cent, and other years where I’ve made a really good six-figure living. As a sole trader in a creative industry, my capacity to build my income relies on me being able to work steadily, day after day, with no benefits or holiday pay if I can’t – and, particularly while raising kids and caring for others (and myself) through illness and suchlike, this has proved extremely challenging at times. Of course, this is also the life I’ve chosen, and some acceptance of the ups and downs of a career in the Arts come alongside that. However, the way we think about our rights and navigate who gets to control our creative work might impact our long-term prospects of staying in the game.

So what happens if, as an author, you realise you’ve given away some rights that now you’d like back? Well, you can always pursue these, but your success will probably depend on the publisher’s generosity. Unless they are contractually obliged to return them, they can just say no.  Alternatively, you will have to wait until your rights period is up (audiobooks are often licensed for 7-10 years), or your books go ‘out of print’. (I’ve used inverted commas here as this description is outdated now with print-on-demand facilities, so contracts tend to use sales figures to judge when a book is deemed ‘out of print’.)

I always try to get my rights back if a publisher is no longer invested in the book in question, and I’ve had rights returned to me very easily on quite a few occasions. But I did have one experience where a publisher demanded USD$20,000 for the return of my rights – for a book that had sold almost nothing until I put my own ebook version on Amazon, which had tipped their print sales back over the minimum threshold and prevented the out-of-print clause being enacted. (This was back in the early days when ebook rights hadn’t been incorporated into the original contract). I wrote to them highlighting in very strong terms the impact this would have on my career, at which point my rights came back for nothing! At that point I was a working mum with two very small children, on limited time and income, and the financial stresses were acute – so thank goodness I got a bit scrappy and didn’t immediately think my only way out was to pay this company $20K for a book they weren’t interested in marketing any more. The importance of getting these rights back has since played out, as this book was eventually placed elsewhere and is my top earner at the moment. Book deals should be respected and honoured on both sides, but there is a point where unreasonable holding onto rights begins to feel more like a hostage scenario than a fair trade. So if you’re writing for a living, or if that’s your aim, please make sure you’re across all your contracts, alongside your agent or a lawyer, and try to make sure your deals work for you as much as every other player in the industry. Which is easier said than done – and I’m sure it won’t be the last time we discuss these kinds of scenarios here.

I hope this leaves you more informed about how rights work in the publishing industry and some of the complex decisions we have to make regarding our book contracts. If you have a rights story I’d love to hear about it – and if you have any questions please pop them in the comments and I’ll do my best to answer them.

---

NOTES FROM MY WRITING WORLD:

The ARCs for my new psychological suspense When She Was Gone are off to the printer in both the US and Australia! The official cover reveal is being primed for next week – and I can’t wait to share that with you. Meanwhile, I’m writing a new crime suspense story that seems to get a little bit more exciting – and the scope of it a little more daunting – every week. The thrill and challenge of writing these first drafts never gets old.