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  • Phil Parker

Intellectual Property and the Writer


Let's start with a definition: according to the UK government's website, "Intellectual property is something that you create using your mind - for example, a story, an invention, an artistic work or a symbol."

It's the reference to the mind that's crucial here. Writing is a creative business and, at its core, is the mind of the writer. It's our ideas, in the form of stories, characters and the worlds in which we set our stories. It's highly likely we've spent a long time (years!) inventing these things. Yet, we have little to show for it, apart from our work. For this reason, it is vital our intellectual property (IP) is protected. But that protection is easily eroded or even given away. It's this issue I want to explore in this post.


Intellectual Property Now and in the Future

I'm going to start with a story about the fantasy writer, Michael Moorcock. When he was in his twenties, during the 1960s, Moorcock wrote short stories for a British fantasy magazine (Science Fantasy, remember it?) which featured the character of Elric of Melniboné. Moorcock developed the character and he featured in a series of novels in the 1970s. He became something of an archetype in fantasy literature. The popularity of this character led to publishers eagerly offering Moorcock juicy contracts which included film and television merchandising. Remember, this was the 70s. Options like these were relatively new. Moorcock refused them. If you're not clear about the term 'option', it is a promise made by the author not to allow anyone else access to their work. Therefore, the adventures of Elric of Melniboné remained in novels but nowhere else. Moorcock, unsurprisingly, wanted to retain control of his intellectual property.

However, he could have done so, had his representative understood the business better. By dividing the contract into different media, Moorcock could have become very rich indeed. He could have negotiated a separate options for Elric's appearance in films, TV and games. That way he would have retained control of his character. I don't blame him for wanting to maintain that control - which is what would have happened had he signed away those rights in one, big, all-consuming contract.

The irony is that, at the age of 81, a gaming company approached him again! This time, with different legal advice, he made a deal. Elric found life in a new medium.

The Takeaway: Intellectual property brings in an income. When owned by the author it exists, beyond their death for a further 70 years. In that time, the author can negotiate a range of deals which will increase their income. That is, so long as the legal advice is sound. But it must anticipate the future, the time the IP will remain the property of the author.


Intellectual Property and Long Term Income

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The Moorcock example illustrates how IP is way more than just an author's work. It represents the potential of that work. I use that word in the sense of what might be developed out of the IP. As they've been in the news recently, let's use the publishing business Scholastic, the people who gave you Clifford, the Big Red Dog, Hunger Games and Harry Potter. Many of their contracts were so tightly written, it meant merchandising revenue went to them, not to the author.

To illustrate what this means - Scholastic published the first "Clifford The Big Red Dog" title in1963, and today there are more than 133 million Clifford books in print in 16 different languages. The classic Clifford The Big Red Dog TV series aired in 110 countries and inspired a spin-off, Clifford's Puppy Days. A new 39 episode TV series has been launched, following hard on the heels of the film - which earned Scholastic $107 million.

That thing about IP earning income for you, 70 years after the author's death, should not be overlooked. We're not all going to reap the rewards of a certain Roald Dahl. It would be nice though. His IP generated $165 million in 2021 alone. Not bad for one year's work eh?

Want another success story of making the most of your IP much later than you had intended? Kate Bush's song, 'Running Up That Hill' returned to the charts thanks to it featuring in the TV show, Stranger Things. Ms Bush retained the rights to the song (unlike so many singer/song writers). Within a month of the series' release on Netflix, the song earned her £2.4 million. Even then, the Duffer Brothers, who Exec Produce the series had to obtain her permission to licence the song, which involved them showing her footage of the show so she could approve its use.

The Takeaway: merchandising your IP can be far more lucrative than any deal negotiated on your novel. Publishers know this. Yet, the fine printis where this feature is likely to be hidden.


Intellectual Property and the Publishing Business

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You're probably starting to realise why IP is such an important part when negotiating a contract between writer and publisher. It's not just a case of considering the income generated from the sales of the novel at the time. It's more about the potential of that revenue in the future. Going back to the short-sighted legal advice Michael Moorcock received isixty years ago. If I sold my books tomorrow via a similar contract, how might my IP be used in 2082? Might I have negotiated the rights to holographic performances of my novels (as in Star Trek!)? With a good lawyer, I might have done.


According to best-selling author Kris Rusch, who is studying for a law degree in this field, two factors are relevant here. Firstly, literary agents have experience of negotiating contracts (some for many years) but they are not lawyers. Secondly, because of the pace of technological change, law in this field is changing rapidly. Even some lawyers are having trouble keeping pace with those changes (Kris Rusch cites her own professor as an example who deals with media, rather then written publication, law). Agents may well be completely unaware of such changes. And the large publishing houses, with teams of savvy, well-trained lawyers, have ways of getting what they want. Look at this statement which is now appearing in contracts:

"This contract represents the entire Agreement between the Publisher and the Writer. If any part of this Agreement is deemed unlawful or unenforceable, the rest of the Agreement shall remain in effect."

In other words, you might win part of a contract but the rest of it still applies. Once the contract has been agreed, you're trapped in it, unless you want to spend a fortune hiring lawyers to free you from a clause.

The Takeaway: The length of time IP operates (let's face it, a minimum of a century, if you publish your work at the age of 30) means so much will have changed. Your IP could generate you enormous income, unless you've signed it away because you (or your representative) were ill-informed over the conditions of the contract.


Conclusion

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All this sounds daunting doesn't it? Scary too. I'm not trying to frighten you here. Instead, my aim is to alert writers to the issues surrounding Intellectual Property itself. So many of us share on social media our attempts to obtain representation with an agent and to get that wonderful book deal from a publisher. I've done that too. It's a rite of passage. However, as a debut author, it's important to remember you are entering the lion's den. What's more, you may be entering with someone who is not so good at fighting off lions.

It may be tempting to trust in your agent, in the belief they know what they're doing. But you have to do your Due Diligence. You're entering a business relationship with them. It's like giving access to your savings to someone who tells you they can improve your pension. You wouldn't do that unless you knew they were credible, professional and experts in their field.

That done, the same is true for any publisher. What are you signing away in your contract? Don't sell your IP. That's the golden rule here. It may be tempting. They may blind you with big numbers. You envision that new house, new car or (more likely) giving up your job so you can write full-time. (Hah! Very unlikely!) But if they get your IP, your future belongs to them. No matter what, keep hold of it.

And, as a final thought, there is a distinction here between seeking your fortune down the traditional publishing route compared to the #selfpublishing one. As an #indieauthor, if I'm ever lucky enough to have a publisher approach me, I'd find a really good lawyer, versed in publishing law, to accompany me. The agent takes 15% of everything you earn. An up front cost of a lawyer may be significantly less.


I hope you found this post helpful.


Post your comments on my Mastodon account - https://mas.to/@PhilSpeculates




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