By Emily Williams, co-chair, BISG Rights Subcommittee
When books go digital they lose their physicality, they are transfigured from dead tree tomes into ethereal collections of bytes and bits — infinitely portable, reflowable, remixable. Or that’s the idea anyway.
What has really happened is that stripping away the paper form has revealed the true nature of books: they are complicated bundles of copyrights. It is this fact, even more than the centuries-old maturity of the print book market or the robust codex form (look ma, no plugs! no compatibility issues!) that has slowed the transition from print to ebooks.
Any book has a number of components. There has been lots of discussion about the text, the narrative, the essential part we all think of when we think about reading. But to that you have to add cover art, which involves design and often one or more images. The design must be licensed both for digital use and for international distribution.
And the image…whoa nelly, there we uncover one of those rats’ nests that makes your head hurt just to contemplate.
The Trouble with Backlist
There’s nothing inherently tricky about images. They are intellectual property, subject to the same copyright regulation as any other. It’s just that a standard biography, for example, can contain images from dozens of different sources, each included in the book under a slightly different agreement depending on where it came from (the subject’s family, historical archives, a stock photography agency).
If you are a nonfiction publisher, that means creating ebook editions of your backlist will involve not just the usual author wrangling but also digging through hundreds of contracts for individual photographs and illustrations. Those contracts have to be examined one by one to see if the publisher has the right to publish each image digitally, and to distribute it internationally. If either of these rights is not granted, the publisher has to track down the person who controls rights to the image and, assuming that person can be found, renegotiate.
Because book publishing has been around so long, both the contracts involved and the laws surrounding them have changed over time. As Peter Smith, a partner at Thompson Hine LLP who advises publishers on image rights, explains: “If we’re looking at a contract from 2010 from X publishing house, is the contract from 1925 going to look the same? Answer: clearly not.” And that’s not all. Digital formats can offer an inexpensive new life for image-heavy books that may have been costly to reprint, but the further into the backlist publishers wade the more issues they’re likely to confront.
“With legacy books that have been around for a long period of time,” says Smith, “you can have other complicating factors – questions about whether the author has rights, whether there’s been any reversion of rights to the author, whether the original grant is still valid.”
What if the publisher wants to go ahead without the images? That option, too, might depend on the contract.
“If I as an author sold you a package, a book coupled with images — maybe you think about the idea of illustrations — if the deal says that you can’t separate the art or illustrations from my text, you may not be safe. Or sometimes you have art directors in publishing houses making those decisions and the authors have approval, so that may not be an end in and of itself just to swap images out.”
Obviously, the more significant a part the images play in a book, the more important these tangled rights questions become. For a lavish coffee table photo book, the photographer has a serious investment in how the images are reproduced, and likely has approval rights over format, the scale of the image, even paper stock. These creators can be wary of releasing a digital version that allows no control over how the reader views the images.
Until recently, the digital options for art and illustrated books were limited anyway; the text-based ebook formats are not image-friendly, and there was no reader that could do justice to a beautiful color photo or illustration. Then came the iPad (cue the choir!), and soon the many tablets that will try to compete with it. Reading platforms to display these images are already up and running — Zinio was an early mover in lifestyle books and magazines, Blio (whenever it makes its appearance) will focus on textbooks, and new arrival Sideways is going after the high end art book market.
For new books, publishers have it easier. Not only are the images already digitized — indeed most of them are digital to begin with — huge archives are now online, opening up a whole new world of browsing and licensing.
- Need a camel pic for your cover? Getty Images has 605 of those, available for purchase free of copyright.
- Ginning up a last-minute memorial bio of Michael Jackson? Corbis has you covered — though be aware those iconic images will cost you dearly. (And you probably won’t be able to clear world rights, so any publishers who want to license your edition abroad will have to go back to Corbis and pay through the nose as well. You can cry into your beer together in Frankfurt.)
Publishers have gotten savvier about their licenses too. For trade nonfiction books, it’s common for authors to be required to clear rights to any images they want to include, with the cost of the licenses rolled into the advance. Those permissions forms use language like “any and all editions of the book” and now may add the “all media/formats/technology now known or later developed” that’s become standard in book contracts.
Publishers of illustrated lifestyle books — cooking, gardening, crafts, design — have photographers and illustrators who work for hire, in order to maintain maximum flexibility and control over the content the house produces.
Their foresight could come in handy in the not-too-distant future. These subject-based verticals are the most obvious candidates for breaking up books into even smaller pieces, licensing a chapter on socks to a knitting website or tips on training rose bushes for an urban gardening app. While historical backlist titles fight to unshackle themselves from dusty contract files, the born digital books are already up in the ether, finding readers.
Emily Williams is co-chair of the BISG Rights Subcommittee and a former literary scout who currently works as an independent publishing consultant.