Film and Audiobook Rights 101

To protect your work and expand its reach, understanding film, TV, and audiobook rights is a must. Publishing attorney and Grammy-award-winning audiobook producer Jessica Kaye tells how in this article from our October 2019 issue.

Publishing a book is a huge accomplishment. Once that’s done, though, thoughts turn to other things, such as film and audiobook rights.

Film deals don’t come along for every book, but if you do have film/TV interest, a contract should include such information as option money and purchase price, royalties, and the time frame for the option.

It’s the norm for a deal to include both film and TV rights. The producer will determine which of those is the right venue for the project. They can’t have someone trying to make a TV series out of something they are working on for film at the same time. Think of it like this: Your book wasn’t published by two publishers at the same time. One publisher bought your book and some subsidiary rights along with it. It’s a similar scenario for film/TV rights, although sometimes the license may be for just scripted rights or just unscripted rights.

There are generally two types of deals: an option/purchase agreement or an outright purchase agreement. Most film deals start with an option. It’s a short-term agreement that permits the producer to seek investors and distributors, to see if they can come up with the resources to make the film/TV show. Most option agreements we see at my law firm are for an initial 12-month period, but shorter or longer time periods are possible. I have seen some as short as three months and some as long as 24 months.

You want a producer to have the rights long enough to be able to give a good effort to finding resources to make the film, but not so long that you feel strung along, unable to try to find other suitors for the rights.

Often, producers want a free option. This used to be something requested by producers who were without much money to invest on their own. They need someone with deep pockets to produce the picture with them. But free options are not limited to those with slender wallets. For example, a successful production company insisted on a free option for one of my client’s books. It seemed unfair to me to ask writers to option for free when the producer could easily pay them something. We made the deal anyway, and it was worthwhile because the studio that stepped in to pay for the option extension (something we will talk about next) had very deep pockets and paid good money for the option extension. The original producers knew what they were doing and my clients were happy to have placed faith in them.

In another deal, a production company came up with a $7,500 option for a client’s rights with very little negotiation necessary.

The decision to agree to a free option is a personal one. If you have an agent or attorney, discuss the offer with them. Is the person or company making the offer reputable? Are they new? That can be OK. There are many producers who have never made a film or a TV show but have an interest in a book and have a vision. Do you want to take a chance on them or not? Sometimes the answer will be yes; sometimes it will be no.

[Read more about why you should consider self-publishing audiobooks in this excerpt from Jessica Kaye's book, The Guide to Publishing Audiobooks.]

A film/TV option agreement usually has a provision for additional option periods. Sometimes there can be more than one extension, such as a third or fourth option period. Option extensions often carry a payment for the privilege. In some cases, the extension is automatic if the producer so chooses, by notifying you and paying the fee, if any. Your contract will specify the terms of the extensions.

Money paid for an initial option is normally applicable against the purchase price. Money, if any, paid for an option renewal or extension, is typically not applicable against the purchase price. For example, if the producer pays $5,000 for a 12-month initial option period, that money is applicable against the purchase price if the option agreement says it is applicable, which means it serves as a down payment. If the purchase price of these film rights is $50,000, when the producer exercises their option and purchases the rights they only have to come up with another $45,000. But if first they extend the option and the second option entails another fee, usually that fee will not be deducted from the purchase price. Your agent or attorney should try to ensure the contract makes that clear.

A contract can include both an option and a purchase agreement because otherwise, when the producer wants to exercise their option (buy the rights), you have to negotiate again. With an option/purchase agreement, you both already know the purchase price and other key terms.

Other terms to negotiate include your royalty, if the project is not a buy-out. A buy-out means you are paid a flat fee for the rights and have no further economic interest in the project. For a contract which includes the possibility of royalties, however, the royalties need to be defined so that you know what the percentage is and what it is based on—a percentage of what?

If your publisher acquired your audio rights, it’s their prerogative to publish the audiobook or license those rights to another publisher. If they don’t do either, see if they’ll revert the audio rights to you.

If you have the audio rights, whether via reversion or retaining them from the start, talk to your agent about pitching independent audiobook publishers. To encourage a sale, have ammunition to entice a buyer, such as how well the book is doing or expected to do, because a successful book will likely make for a successful audiobook. Will there be a big first printing of your book? Is there a marketing and advertising campaign planned or underway? Any good thing about the marketing of your book will help make the audio rights attractive to an audio publisher.

If you don’t find a traditional audio publisher, you can self-publish the audiobook. Many authors use ACX, which is a part of Audible, which is owned by Amazon. Through ACX, you make your book available for narrators to audition, and you and your chosen narrator can record it under various types of contracts: a fee, based on the running time of the finished audiobook, or with no money up front but a royalty share. Some authors and narrators opt for a fee plus a royalty share.

There are other companies that also pair authors with narrators. Most require an out-of-pocket cost to the author, though. Resources include companies such as Author’s Republic, Deyan Audio, Findaway Voices, John Marshall Media, Lyric Audioooks, and Mosaic Audio. They, or any independent audio producer, can give you a bid to produce your audiobook. You can find contact information by taking a look at the membership list of the Audio Publishers Association, the trade organization for the audiobook industry, at AudioPub.org.

Once you have a finished audiobook, you need to distribute it. Through ACX, you can choose exclusive or nonexclusive distribution. The exclusive distribution will pay a higher royalty but limits your venues to Audible, Amazon, and iTunes. With a nonexclusive deal, you can also distribute through other companies to broader venues, such as libraries and other retail download sites. That includes my distribution company, Big Happy Family, LLC.

Don’t forget to license cover art. Downloadable audiobooks still have a “cover,” typically a thumbnail JPEG representing the jacket. Take a look at any downloadable audio site for examples.

For self-publishing, it’s important to know the technical specifications, or specs, required by the download sites. The companies which produce audiobooks for indie authors know these specs, but you may want to have your contract state that the master recording will be provided to you ready for uploading to download sites. I have a client whose contract refers to this as “market-ready files.” The download venues also have specs for the JPEG cover art, so whoever prepares your art will need to format it accordingly.

Fewer and fewer audiobooks are being published in hard copy, such as CDs. If you want your audiobook to be available on CD, you either need to license to a company that does still publish in that format, or you need to find a manufacturer for the CDs and the CD cover. You may also need an ISBN. To find CD and cover manufacturers, use a search engine or, if you see a type of packaging you like on an audiobook, contact the publisher to ask who manufactured it. They are likely to share that information with you. To purchase an ISBN, go to ISBN.org.

Register the copyright to your audiobook with the U.S. Copyright Office. The copyright in the recording is separate from the copyright to your print book or e-book. It is easy and inexpensive to register, and the protections registration offers are well worth the extra time and effort because if your copyright is infringed, you’ll be glad you have the statutory protections of registration. You own the copyright even without registration, but the courts have ruled that you cannot sue for copyright infringement without first having registration. It’s best to register within three months of publication because that entitles you to statutory damages in the event of infringement. A tardy registration limits you to actual damages. Statutory damages are likely to provide you a greater financial recovery.