Pub Rants

A Very Nice Literary Agent Indulges in Polite Rants About Queries, Writers, and the Publishing Industry

And I’m Still Talking About Derivative Works

STATUS: My goal today is to work through ALL emails in my inbox. I probably have 8 hours of work ahead of me just on that. It’s very sad when I get a little behind on it.

What’s playing on the XM or iPod right now? WHO’S CRYING NOW by Randy Crawford

I do find it funny that when I talk about contracts, I get the fewest number of comments to the entry. Now I understand that folks may still be reading the blog entry even if they aren’t commenting but I do equate number of comments with general interest in the topic.

But I’ve got one more entry on derivative works before I lay this topic to rest (for a little while anyway). And that’s to talk about fiction. For me, I rarely do nonfiction so I wasn’t as worried about the ramifications of this clause in regards to that. It’s also more conceivable to figure what could be considered a derivative work in the NF realm.

I do fiction. So I’m particularly interested in what might be considered a derivative work in this realm. I had a sneaky suspicion that I already knew.

And I was right.

For fiction, it could be conceivably argued that a comic book or graphic novel is a derivative work based off of the original novel.

Not that I agree even remotely. But it could be argued and that’s exactly what I did not want to hear.

Because to make it clear whether it would or would not be considered a derivative work, my guess is that would have to be challenged and determined in a court of law.

Once again, let me add my disclaimer that I’m not a copyright attorney, and I’m not dispensing legal advice or legal opinions here. These are simply my musings on how this clause could be interpreted.

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55 Responses

  1. Joseph L. Selby said:

    I do equate number of comments with general interest in the topic

    I’ve followed your blog for four years now and read every post you’ve made in that time. In general, I respond to a post when it elicits discussion on the topic (open-ended questions and the like), when an element needs correction or rebuttal, if I have a question based on the post, or if it changes how I previously perceived something.

    I find the derivative works topic interesting, informative, and important for the changing face of contracts. I very much appreciate these posts and every other contract post you’ve made (it’s the subject where all of us know the least, I’d wager), even if I don’t say so after every post.

  2. Brett said:

    I would have more of an investment in the derivative works conversation if I had a work for someone to derive from! Right now I have 3 first-drafts and I’m working on the second draft of one of them. That doesn’t get you far, and certainly doesn’t drive derivative works. 🙂

  3. Anonymous said:

    Confession: I’m a lurker. I read your blog every day but I rarely comment.

    Even those of us not yet published need to be informed on such an important issue as copyright.

    Thank you for your generosity in sharing all of your knowledge with us.

    HollyD

  4. Loralie Hall said:

    I don’t comment on a lot of what I read, but I wanted to let you know this has all been fascinating to me. Seeing your thoughts on the matter as well as learning what kind of implications this could have for me is great.

    My question is – what kind of flexibility do you have to get this language changed for your clients?

  5. Margaret M. Fisk said:

    I’m another reader who doesn’t often have something to add or ask so I don’t comment. However, I do appreciate the glimpses you give into the contract side of things, especially in this changing world. All the more reason to have an agent on our sides when facing the contracts.

  6. Seven said:

    I am also a lurker who rarely comments.

    I’ve always liked that you discuss more than just query letters on your blog. In fact you are one of the rare agents that will talk about contracts on your blog, and I greatly appreciate that. Because contracts are rarely discussed anywhere else, I have no educated opinions or alternate insights to offer in comments.

    Please keep it up, I am very interested.

  7. Mr Pond said:

    You’ve definitely convinced me that this is an insidious little clause. Does it prove me an idealist that I find the presence of the clause horrifying and a little depressing? Or does that just prove me a rational, thinking person?

    Thanks for your hard work and your posts.

    (I’m not quite crying now, so the song’s not for me, but I still haven’t found what I’m looking for.)

  8. Charlie said:

    Posts like these make me start thinking of contracts and clauses and business and then I get a headache and am too disoriented to actually comment.

    I imagine other readers suffer the same. 😉

  9. Elizabeth Ann West said:

    I am brand new to writing fiction after writing non-fiction for three years (web based ghost writing and technical writing). I really enjoy your blog because it has cemented for me why I need an agent, and why I think once my first manuscript is finished and thoroughly edited, an agent will enjoy my work. I didn’t just start my modern day romance tale on a lark; blogs like yours made me start with a business model in mind. After all, what’s the point in writing what you can’t sell?

    I thoroughly enjoy your contract discussions. It is a breath of fresh air from all of the writing blogs that blather on and on about craft. Craft is important, and while the supposition is there that poor writing doesn’t sell, I know for a fact that isn’t true. What sells is what fits the market place. I’ve had 1,000-word pieces sit for months before finding a buyer that I had spent days on and 500-word pieces I jammed out in a few hours find a buyer right away.

    Don’t worry about readers…we’re all here! Thank you for what you share Kristen, and who knows, one day you might end up with my query in your mailbox!

  10. Jess Haines said:

    I’m one of those lurkers who rarely comments. I find your blog to be informative and helpful–even though I am already agented and published. Please don’t take a lack of comments as a lack of interest. In my case, it really isn’t. Mostly it’s just a lack of time and/or sufficiently caffeinated brain cells that keeps me from adding anything significant to the conversation. *g*

    <3,
    -J

  11. TLH said:

    I agree that a lack of comments does not equal lack of interest. For a lot of your readers, unpublished authors like myself, we don’t know much about contracts so we can’t participate as well in the discussion. But they are extremely informative for us for the same reason.

    Keep up the great work!!

    ~Tara

  12. TKAstle said:

    One of the things I like best about your blog, which I read faithfully, is the diversity of topics you cover. I may not comment often, but I have learned a great deal about the publishing industry from my lurking here.

    Much of the time after reading one of your posts I find myself thinking, “That’s really interesting/good to know.” Since that’s not much of a comment to make to your readers, I generally keep it to myself.

    Thanks for helping me feel like I won’t be totally clueless when it’s my turn to be discussing contracts to be signed and such. Keep the legal stuff coming – along with all the other great info, too.

  13. Ahab said:

    I read the blog regularly–one of the rare breaths of fresh air in the book world these days.

    I’ve been in publishing 25 years, with three nonfiction books in print, working on a first novel, was an acquiring editor at a small imprint of a Fortune 500 publisher for eight years and now edit a magazine, and throughout that time I’ve seen this creeping acquisitiveness from rights departments, from the NYT and National Geographic to pretty much all the book publishers I’ve worked with.

    This derivative-works clause, as worded, is utterly open-ended. It could me made to mean anything and everything: a virtual work-for-hire.

    Of course a good agent can make it go away very quickly. It’s amazing what a collaboration between an agent and an editor with signing authority can make go away; he or she typically has no more love for the rights department than authors do.

  14. Cat said:

    Don’t stop writing about interesting topics just because the response rate is low. Some things need to sink in before people (like me) comment. Contracts and legal stuff is difficult to digest. So thanks a ton for explaining at least a little.

  15. Cole K said:

    This contract clause has had my attention from the day you revealed it. By all means, the more you can say about it, the better!

    As someone who is very concerned with transmedia branding in fiction, any discussion of signing away rights to derivative works is a major red flag. It would take an advance somewhere around eight figures to keep that from being a dealbreaker clause for me, personally.

    When you consider that Macmillan owns Tor, anyone who does scifi or fantasy should immediately be concerned. How broadly will they interpret their right to create derivative works? At what point does the author’s IP control end and their right to reuse it begin? What happens if they make an animated series that is more popular than the book it derives from? I’d imagine the author would have to pursue legal action just to get so much as a Christmas card out of them once they’ve signed that contract.

  16. DeadlyAccurate said:

    Your contract posts are some of my absolute favorites. I can read “how to write a query” post on any of a dozen agents’ blogs, but you’re the only one who regularly covers contracts.

    This derivative works clause is horrifying to me. I simply could not sign a contract that gave the publisher that much power over my work. I’d rather stay unpublished.

  17. therealjasonb said:

    Just one more comment to say this is, in fact, interesting, especially with things like James Frey’s new writing house, etc. Sort of reminds me of the music industry a decade or so ago, when things first started being digitized. Rather than adapting to a new way of doing business, they are trying to squeeze more money out of the existing model–and it’s mostly hurting the artists. If they wanted to pay MORE up front for rights to derivative works, that would be great, but I’m guessing that’s not part of the deal ….

  18. Yuenmei said:

    I read every copyright entry – I’m extremely interested! Just sometimes I’m not sure what I could add, and you explain it well so I don’t usually have anything to ask.

    I was just reading in the introduction to Diana Gabaldon’s new graphic novel that she also suspected Graphic novels were derivative works and made sure her agent negotiated them out of all contracts because Diana wanted to write them herself. Diana has a lot of clout though… could a new author manage a contractual change like that?

  19. Anne said:

    Well, as one of the (I’m guessing) tiny minority of your readership who is more interested in posts about copyright than querying, I suppose I ought to delurk now if ever! Actually, I am wondering: how would you argue that a comic book or graphic novel based on a novel is not a derivative work? While I absolutely agree that authors should retain those rights, those types of works seem to fall squarely in the middle of the definition of “derivitive”. Thoughts? Anyone?

  20. Suzanne said:

    My favorite part of your blog is the contracts discussions! That, and the other nuts and bolts talk about the business side of writing. A lot of craft, query and so on we can find elsewhere. Your blog is the best at this kind of in-depth discussion, and I for one feel that it adds to your rep as an agent. I hope and pray whichever agent I sign with will have your genuine understanding of this less-glamorous half of the business. Keep it coming!

  21. Elle Strauss said:

    I’m a dedicated lurker, and I’m very interested in your posts on publishing. Please don’t stop sharing all your valuable insights o the topic!

  22. Tanya said:

    I am so over my head when it comes to contract clauses that I couldn’t begin to put together an informed comment.

    Before reading these posts, I probably would have skimmed by the words “derivative work” without understanding it (kinda like I skim by every other contract clause). At least now I’m forewarned, if it ever crops up.

    So, from yet another lurker, thank you!

  23. Simon Hay Soul Healer said:

    Everyone is interested. It’s rare for agents to talk about contracts, so thank you. I’ve also noticed that twitter has changed the way people comment. Everyone is reading and then Retweeting. The traffic to my website and blog has increased, but the comments have not. Have a great day.

  24. Kristin Laughtin said:

    Like others have said, I tend to only comment if I have something to contribute to the conversation or want to offer thanks for posting about something that interests me. I don’t have any work to create derivatives from yet and I don’t write nonfiction, so I haven’t had much to say, although I’ve appreciated the content.

    However, I hope to have fiction published someday and would definitely be troubled if a clause allowed them to create a graphic novel of my work like that, which is what I suspected would be the implication of the term.

  25. S.P. Bowers said:

    It looks like a lot of people have already said what I’m about to say. I find the contract discussions very interesting and hope to need all this information soon. But since I know very little about it I don’t have a lot to say on the subject. Not that I’m a frequent commenter anyway. Still soaking up the knowledge.

  26. Melissa (ATX) said:

    Kristin, Circular 14 offers an explanation of derivative works in plain language. Circulars are totally awesome!

    I’m not an I.P. attorney, but I rocked Copyright Law. Your interpretation is correct. However, derivative works can also apply to an original work which is modified such that the changes are both substantive and “stand-alone.” Typically, derivative works are plays, films, graphic novels, etc.

    The most important thing to know about derivative works is that only an author of an original work can create a derivative work or authorize someone else to do so. It’s that “may authorize” (permissive) language that you have to pay close attention to and which I suspect may pose a problem in contractual language. 🙂

  27. Elizabeth said:

    I may be way off base here, but when I read your first post about the Macmillan/derivative works clause, the first thing that popped into my head was the hubbub last year with Janet Evanovich, who moved her Stephanie Plum series and its paranormal spin-off series from St. Martin’s Press to Random House. I’m not a lawyer, but I imagine with a derivative works clause, a move like that would be a bloody mess. Which, now that I think about it, is probably the point.

  28. Lucy said:

    Kristin, I love your contracts posts, and they are ALWAYS of interest. But since I don’t know anything about contracts–certainly not enough to comment knowledgeably– I tend to keep my eyes (ears) open and my mouth shut.

    So, please, don’t hesitate to write more on contracts! These are really some of your most educational posts.

  29. Lucy said:

    P.S. One of the things Agency Gatekeeper does on her blog is to have a little “vote counter” at the end of each post, with boxes for Funny, Interesting, Helpful. She usually gets more clicks on the boxes than she does comments. I wonder if something like this would give you better feedback for what your blog readers are thinking?

  30. Ebony McKenna. said:

    I really appreciate your posts, especially these last three on derivative works. I don’t have an opinion – other than to feel very nervous. If they didn’t mean derivative works to mean what everyone else thinks it means, then they should write the contact in such a way that everyone really does understand.

    Or, my gut feeling is they’re creating wriggle room so they are leaving their options open.
    I’m still very nervous.

  31. Anonymous said:

    Another lurker who never posts. Ever. I find these sorts of posts extremely informative, but I’m not published yet and know next to nothing about contracts so I don’t feel I have anything to contribute to this sort of discussion, but I very much appreciate that you post them.

  32. Stuart said:

    “I do equate number of comments with general interest in the topic.”

    I read the blog feed through my Livejournal daily, but I always read it and am most interested in these types of industry posts. Please keep it up!

    Stuart

  33. MJ said:

    Longtime lurker, first-time commenter. Keep these posts coming! We need the info, and Those Big Companies need to know their actions will be held up for public scrutiny. Thanks for an informative blog.

  34. Angela said:

    Jumping on the delurking bandwagon to say that I read your blog every day and find the posts about contract issues very informative. Yours was one of the first agent blogs I found and still my favorite.

  35. elucreh said:

    I’ve been following this with interest, actually, because I’m a highly active fandomer, OTW supporter and friends with one of their lawyer-types, etc., and so I can see this clause sort of blowing huge chunks of the support base out of the water. I’m always intrigued by the “other half”‘s questions and debates on the subject nearest and dearest to my community’s hearts. ^_^

  36. lynnet said:

    As a law student who would love to work in publishing someday, I started reading your blog because of your contract and other legal/technical posts. Please don’t stop writing them!

  37. Anonymous said:

    Don’t stop, in the name of law….

    Corny, I know. But seriously, don’t stop :). We all love reading, even if we’re not commenting.

  38. Kristen said:

    I just wanted to stop by and say I am so excited to go through all the information on your blog! I have always wanted to be a writer and my family swears I should be putting those skills to good use. I’ve just begun my research and after keeping up with Marie Lu’s updates, I couldn’t be more excited! Thank you for all of your useful information! 🙂

  39. Cab Sav said:

    Another lurker, who has come out of the internet wilderness to say the same as the others. The copyright information you provide is extremely valuable. Please keep it up.

  40. Anonymous said:

    So if I write a great novel, my publisher turns it into a killer graphic novel, and James Cameron loves that graphic novel and turns it into a highly profitable critically mediocre movie that sell millions of squishy action figures, then as the writer …I get what? I guess it all depends on who my agent is.

  41. Kaley said:

    I’m confused. If a graphic novel/comic book was based on a novel, why would it NOT be a derivative work? It seems like something the author should be compensated for just like film or TV rights. Am I missing something?

  42. Courtney Milan said:

    For fiction, it could be conceivably argued that a comic book or graphic novel is a derivative work based off of the original novel.

    Honestly? A comic book/graphic novel HAS to be a derivative work, or an author would have no claim to compensation from it in the first place. Even sequels are arguably derivative works–that’s why some authors say fan fiction is copyright infringement.

  43. Laurie said:

    Hi, I’m another lurker who rarely comments. I’ve found these derivative works posts fascinating, and chilling. I don’t know enough about contracts to have anything to add to the discussion – I know nothing about contracts. But I appreciate you posting about it, and I hope you continue as the situation develops. Thanks!

  44. Ria said:

    Thanks for sharing this information. It’s interesting, and important. I think fewer people are commenting because we are accepting what you are saying, and have no need to debate. And, as other people have said, a lot of us readers don’t have contracts to worry about just yet. We are listening, though.

  45. Anonymous said:

    This is a key area in publishing contracts, for sure, and you’re right that publishers do often consider graphic novels and comics “derivative works.”

    When drafting contracts for my clients, I typically pay very close attention to derivative rights language – on both sides of the aisle, since I represent both writers and publishing houses. The houses definitely want at least rights of first refusal to any and all derivatives, but most of my current publisher clients will accept certain carveouts, especially if the house doesn’t publish the format the author wants to reserve. I can’t speak for everyone, obviously, but carefully drafted carveout language is definitely vital.

    As a side note: I’ve had at least one client’s subsequent work “saved” from inclusion because of the way we drafted the language in the initial contract, even though she didn’t anticipate writing the relevant work at the time the contract was drafted – so a word of caution to your writer-readers: listen to your agent and/or attorney and pay attention to this language. It’s critically important.

    And yes, I am a publishing attorney. I’m posting anonymously because I also write fiction and comment on writing-related blogs, and I prefer to keep Chinese walls between the two sectors.

  46. Aaron DeMott said:

    I’m another one who reads everything and doesn’t comment much.
    Mostly because what I’d comment on has usually already been addressed by another commentators comments. 🙂

  47. Fred said:

    I deal with contracts all day at my day job. Last thing I want to do when I escape into the world of writing, is to think about contracts. I’ll think about it when/if I ever finish my WIP, but not before. Until then, I’ll devour everything I can about writing, except contracts.

    Fred

  48. Carrie Dair said:

    I too also love being kept in the loop (as it were) through your fantastic blog postings. I can only imagine the publishers are hoping that someone will “miss” that contractual clause, because what other use would they have for wanting rights to derivative works than to create something new from it…which of course the author should be paid for. Separately.

  49. nymfaux said:

    add me to the list of lurkers!–I LOVE your blog!!!–I have it on my bookmark bar so I can click on it instantly!–The first time I stumbled upon your blog, I was an instant fan and stayed up all night reading through your archives–I love all your posts, I think they’re absolutely fascinating and enlightening–They never taught us ANYTHING like this in school, that’s for sure!!!

    I don’t comment a lot, because I usually see my questions already raised, and since I know you don’t usually comment yourself, I just wait to read your posts for your responses.

  50. Penny Linsenmayer said:

    I too love your blog (and am late to the party on this one because of being out-of-town). I wanted to note that as a lawyer (who wants desperately to be a literary agent), I am very intrigued by these contract-related entries. It is signaling to me that I’m maybe correct in thinking that my legal background in contract negotiation could indeed serve me well as a literary agent. 🙂

    I agree with the anonymous publishing atty who noted that carefully-drafted carve-outs should be agreeable to the publishers; it’s natural for them to try and grab everything they can in a broad sense, but I suspect they are in most cases going to be reasonable if they get the right agent/atty pushing for reasonable changes. Derivative works is certainly a tricky area.

  51. Mahak Jain said:

    I love your posts discussing the nitty-gritty of contracts, or anything similar that you wouldn’t really know unless you worked in the industry. It has been really educational and taught me a lot even before I started working in the industry. So thank you for taking the time to post and explain all these things for us!

  52. Rev Dee said:

    It’s hard to really, concretely, define ‘derivative works’ when there are only 12 plots extant in the world (my Soc prof called them ‘G-d, man, & the universe’ categories, with 4 plots listed under each main heading). Just like with musical notes, there is a finite number to use; and the mark of an author (of books or musical pieces), is to use the elements that *everyone* has to use, and still manage to bring something new to the table. Yes, there are only 12 plots/X musical notes, but how do you revamp the one(s) you’re using? How do you twist it/them so that something new is being added to the reading/listening choices. Can a reader/listener lose her/himself in the story, or will they immediately identify which plot you’re working, thereby losing the delicious ride we usually get from masters of the trade.

    When looked at in this light, just about everything is ‘derivative,’ & we, as authors, editors, readers, & agents, *may* have to agitate the Pub Co’s and demand that they use more relevant terms to describe what they’re really trying to avoid publishing.

    For example, ‘West Side Story’ is derivative of ‘Romeo & Juliet.’ But ‘R&J’ is derivative of an ancient Greek play (whose name is on the tip of my tongue, but *refuses* to travel to my fingertips to be typed here, sigh). Oh, and more kudos to my Soc prof for using this example, even if I can’t remember the whole darn thing…
    ;~}

    If everyone on this list thinks up just one example (that they will share w/this list), we’d have a healthy number of examples to use to prove our point to the Pub Co’s. Added to which, most print Pub Co’s are *still* using a business model that was outdated almost a century ago, and we see the main reasons new & mid-list authors have such a tough time getting noticed by the print Pub Co’s. E-pub has its problems, but one of them *isn’t* using outdated business models. I guess using new technology has forced them to use newer business models, which, as everyone knows, takes a while to work out all of the kinks (e-pub pioneer, whose children’s book, ‘The Butterfly Garden’ was the very first book published by WEEI {Writers Exchange E-publishing, International; http://www.writers-exchange.com/}, in Dec2000).

    Hopefully, WEEI and the rest of the legit E-pub Co’s will have every last kink worked out soon, and then writers at all stages of their careers will have truly viable publishing options open to them (I mean the options that allow writers to actually make a living from their writing, like only the big’s can do right now)…

    JMHO, based on years of editing/writing/reading/studying/etc…

    In Love and Light,
    Rev Dee…

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