To many, copyright law can seem daunting. However, if you’re looking to produce an audiobook, understanding the basics of copyright law, including who you need to contact, is essential.
Copyright law heavily impacts the audiobook industry. It protects creative works of expression – including literary work in all of its formats (including audio!).
Copyright attorney Mikaela Gross from Cowan, DeBaets, Abrahams & Sheppard law firm in New York answered our copyright law questions and in turn, we’re sharing those insights with you.
It’s a blessing and a curse, with the internet, that we can get so much information. But people can get carried away with their interpretation of that information, which can be more dangerous [than not having any information at all]
Whether you’re an author looking to produce your own audiobook, an independent producer aspiring to break ground in the audiobook production space, or an indie-publisher intrigued by audiobook industry, this copyright law post is for you. It will cover a breakdown of the kinds of rights involved in producing an audiobook, and will equip you with enough understanding to get you started on the road to legally pursuing your audiobook creation.
Copyright 101 with an Emphasis on Audiobooks
The Right to Create Derivative Work
Most important to the audiobook industry, is the right to create derivative work. Derivative work is defined as ‘work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted.’
This is the right that publishers or producers will need to obtain before moving forward on producing an audiobook of a preexisting literary work.
“Authors own the exclusive right to creative derivative works, and they can transfer that right to others by an “assignment” or a “license.” Within the “license” umbrella, the author can either grant an exclusive license or a non-exclusive license,” Mikaela explains.
Exclusive and non-exclusive rights, assignments, and licences are outlined in more detail in the upcoming sections!
‘Exclusive rights’ cover the right to reproduce literary work in various formats, whether the copies are in digital, paper, and/or audio formats, as well as distribution rights (which are separate from the right to make copies). It covers distributing the literary work in the US, in other countries, over the internet, and more. Exclusive rights most commonly reside with a single person or entity. In most situations, the exclusive rights reside with the original author. That author can give out exclusive licences to other 3rd parties to grant them the ability to reproduce and distribute, which is more thoroughly explained in an upcoming section.
Non-exclusive rights, on the other hand, allow multiple people to use the work simultaneously. These rights are not used often in audiobooks, but are more common in the use of photography and imaging, allows multiple people to use photos simultaneously. For instance, CNN and MSNBC may both have the right to use the same image. And those rights can be defined by a scope that controls how long they can use it for, where they can use it, and for what purposes they can use it.
In the publishing industry, non-exclusive rights deals rarely happen, as, in most cases, publishers don’t want to compete with one another for the same title. For example, theoretically, Harper Collins Publishing wouldn’t want Penguin Random House Publishing Company to publish the same audiobook at the same time. “If you think about it that way, it’s going to be exclusive in almost all instances,” says Mikaela.
As mentioned above, exclusive rights typically reside with one person. And most commonly, that person is the original author, unless they’ve sold those right to a third party like a publisher.
“When transferring rights from the original author to a publisher, it can be done through what’s called an assignment,” says Mikaela, adding “which means, ‘I’m giving you those rights and I no longer hold any rights, because I’m assigning it all to you, and you get 100% of everything.’”
Licences can be exclusive or non-exclusive.
An exclusive licence is a little bit like an assignment in that it says, “I’m giving it all to you” but it’s more limited in scope. With an exclusive licence, you can limit by a certain amount of time, you can set geographic limits, and you can state how the work is used. For example, it can be specified that, “you can have everything, but only for 1 year”, or “you can have everything in perpetuity, but only in the USA.”
Non-exclusive rights can also be bound by a scope of time limit, geographic boundaries, and how the work is used, but it also specifies that someone else – most likely the author – retains the exclusive rights and has control over how that piece of work is ultimately used.
As mentioned above, ‘non-exclusive’ situations are seldom found in the publishing world.
Yet, there are the odd times where a non-exclusive license applies. One example is getting a non-exclusive licence for the right to read a short story at an event, like a stage reading, or in a podcast, which features short stories. Those examples would be non-exclusive, because the person who’s licensing the right to the podcast, still wants to be able to publish the short story in their own book, magazine, audiobook, etc.
Who Do You Talk to When Inquiring About Obtaining Rights to Produce an Audiobook?
Because there can be so many different parties involved, industry processes that spark the creation of an audiobook can look convoluted from the outside peering in.
For instance: Does an author decide that they’re going to do an audiobook? Or is it their publisher that recommends the project, as a way to generate another revenue stream? Or perhaps the author’s agent begins the process? Or, do audiobook projects begin after an outside producer approaches the publisher (or author)?
So, where do you start, when you know you want to inquire about obtaining a licence to create derivative work in the form of an audiobook?
Mikaela explains that there’s no ‘one way’ that the industry follows. In fact, any of the scenarios mentioned above can ring true. Here’s how to navigate each approach:
Talking to Authors
Mikaela says, “In times where an author feels very strongly that they want to control the exclusive rights, a publisher won’t have the right to reproduce. In that situation, the author and publisher can make sure that the delineation of rights is carved out in the publishing agreement.”
Sometimes, authors will be in situations where they can retain the right to create derivative. One scenario that would result in an author retaining those rights is if their publisher isn’t in the business of doing audiobooks. It can be as simple as a Google search to identify if a certain publisher also publishes audiobooks. If your search comes back with no information on this, then it might be the path of least resistance to contact the author.
Understanding When to Approach Authors or Their Agents About Audiobook Production
If the book has yet to be published in a paper or digital format, and it only exists as a manuscript or other forms, then the rights most likely lie with the author unless a publishing contract has already been created. You wouldn’t know ahead of time whether a publishing contract already exists. So, working with what information you have, if the book is not in a paper or digital format quite yet, feel free to reach out to the author.
As mentioned above, the work can exist in other forms than a manuscript before ‘publishing.’ One unique niche that has seen significant growth in recent years is the podcast-turned-audiobook niche. A great example of this is Welcome to Night Vale. The producers of the podcast made a compilation of many podcast episodes and turned them into an audiobook listening experience. This unique situation demonstrates that. In today’s day and age, there are so many other avenues to explore than the run-of-the-mill scenario of “literary work, to book, to audiobook.”
In the same vein as podcasting, there are other well known podcasts that solely narrate stories written by other authors. In this situation, the podcast producer needs to connect with the original author who holds the exclusive rights (or their agent, or publisher), to find out who can award the rights to create derivative work.
Talking to Publishers
When you’re talking about producing an audiobook, in copyright terms, you have to think about the original work itself. If it was already published in paper or digital formats, you first need to see who the publisher is.
If it’s still in print, then you should contact the publishing company to inquire about producing an audiobook.
Shari Nakagawa, the Ebook and Audiobook Manager for Orca Book Publishers, says that publishers typically take on production of audiobooks for which they already hold the rights [to create derivative work or to reproduce the literary work]. Very infrequently does an outside producer approach a publisher, like Orca, to inquire about producing an audiobook for a book that Orca holds the right to. But when the situation does arise, the independent producer is required to purchase the rights from Orca. No matter who holds the rights, the author will continue to receive a percentage of sales.
When asked what she wishes authors and producers knew about the audiobook publishing process, Shari says:
Producing audiobooks is expensive… even though [they are] growing [in popularity]. As much as we would love to do all of our books in audio format, it is currently cost prohibitive to do so.
However, in many instances, creating an audiobook is worth pursuing. In fact, the audiobook industry is encountering a rise in indie-publishers taking on audiobook production as another revenue stream. With the boom [link to article #6 Audiobook Boom] that the audiobook industry is experiencing, some would say that the project is worth the investment.
Additionally, being able to hire professional audiobook narrators through platforms like Voices.com, is helping audiobook producers to reduce the costs associated with hiring recording studios. This is because many professional voice actors have home studios, allowing them to create professional-grade sound, without the studio rental.
With that said, a proper marketing strategy for a newly produced, relatively unknown audiobook is required to make the splash that the creator would hope for.
Tip! Inside every book, you’ll find the publishing history page just after the title page. If you’d like to start by contacting the publisher, you’ll find what information you need on that page.
Now You Should Have a Better Idea About What You Need to Obtain and Who to Contact During Your Audiobook Production Journey
If nothing else, we hope that you’ve gained insight into the different kinds of rights available, which rights are most commonly used, and what levels of legal consent you need to obtain before you create an audiobook.
Hopefully, this breakdown provided you with enough industry knowledge to allow you to feel confident when approaching an author, their agent, or a publisher.
Go forth, and discuss obtaining a licence for the right to create derivative work with the respective audience!
Have you produced an audiobook? What strategy did you use to ensure that you held the copyright? We’d love to hear from you! Please share your experience in the comments below.