This Agreement is for the publishing of a photobook with some text and a forward written by a separate author.
A. Assignment Provisions
1. THE GRANT
(a) Author grants to Publisher and its successors and assigns, during the full term of copyright and all renewals thereof, the following rights, subject to any Author approvals as specified in this Agreement:
(i) the sole and exclusive right to print, publish, distribute, market and sell the Work in any and all editions and formats throughout the World (the “Exclusive Territory”).
(ii) the sole and exclusive right to license and above rights in the Work including the subsidiary rights set forth in Section 10 in the Exclusive Territory.
(b) All rights not specifically granted to Publisher are reserved by the Author, including but not limited to the right to exploit and use the individual photographic images contained in the Work, except where otherwise noted.
Publisher is hereby expressly authorized and agrees to register a claim to copyright in the Work in Author’s name with the U.S. Copyright Office within three months after first publication. Each copy of the Work published pursuant to this Agreement shall include a copyright notice in Author’s name in accordance with United States Copyright Law and the provisions of the Universal Copyright Convention.
B. RIGHTS THE CREATOR MUST GIVE UP
(a) Publisher may use Author’s name, approved likeness and approved biographical data on any editions of the Work published by Publisher and in any advertising, publicity or promotion for the Work and may extend these rights in connection with grants of subsidiary rights made by Publisher.
(b) Publisher shall have the right to publish or authorize publication of brief sections of one or more chapters of the Work in the media, for purposes of publicizing or promoting the Work. Any selections published without payment shall not exceed two thousand five hundred (2,500) words and three (3) illustrations without Author’s approval.
(c) Author further agrees to be available (subject to advance notice and scheduling), without additional compensation, other than out of town expenses, for a minimum of ten days of personal appearances and promotion.
2. OPTION [Typically negotiable]
Author agrees to submit exclusively to Publisher, for consideration as below described, Authors’ next book-length fiction/non-fiction proposal and/or sample material before submitting same or proposals to any other party. Publisher shall have a period of 60 days (which period shall not commence to run prior 90 days after publication of the Work) after the submission of such a detailed proposal or sample material within which to notify Author whether it desires to publish such next work. If within said time Publisher notifies Author of its desire to publish Author’s next work, Author shall thereupon negotiate in good faith exclusively with Publisher with respect to the terms of such publication. If Publisher and Author are unable to arrive at a mutually satisfactory agreement after negotiating for a period of 60 days, Author shall be free to submit such next work elsewhere; provided however that Author shall not enter into an agreement for publication of said work (or a substantially similar work) upon financial terms equal to or less favorable than those offered by Publisher.
3. SUBSIDIARY RIGHTS [negotiated if other than book rights]
During the continuance of this Agreement, Author grants to Publisher exclusively, within the Territory granted to Publisher in Section 1(a) above, the following subsidiary rights in addition to the right of publication in volume form. The net amount received from the licensing and exploitation of the following Subsidiary Rights, after deducting all direct expenses incurred by Publisher shall be divided as set forth below and paid (less the amount of any advances then unearned) at the time of the next accounting:
(a) British Commonwealth hardcover and/or paperback rights: 75% to Author, 25% to Publisher; right of Approval to Author.
(b) Translation rights (including the right to sublicense the other rights granted in this Agreement): 75% to Author, 25% to Publisher; right of Approval to Author.
(c) Permissions, including publication of portions of the Work in anthologies; serializations, condensations and abridgments (including digest rights): N/A
(d) Book Club rights: 50% to Author; 50% to Publisher
(e) Trade or Mass Market Paperback rights: 50% to Author, 50% to Publisher
(f) Other Book Publication rights (including, but not limited to, hardcover, large-type editions, mail order, premium and other special editions and schoolbook and book fair editions licenses): 50% to Author and 50% to Publisher
(g) Audio Recording rights: N/A
(h) Commercial and Merchandising rights subject to Author’s approval (derivative products such as the use of a title or character for greeting cards or clothing): 50% to Author, 50% to Publisher. [often omitted if artist licenses work for paper products him/herself or through representative]
(a) Author shall indemnify and hold harmless Publisher, their affiliates, employees, representatives, officers, directors, and agents, and the employees’ representatives, officers, directors and agents of its affiliates (collectively, “Indemnitees”) against any suit, claim, demand, proceeding, prosecution, recovery, or penalty and any expense, including attorney’s fees and litigation expenses arising out of any and all manner of claims, demands, actions and proceedings that may be asserted or instituted against any Indemnitee on the grounds that the Work violates any copyright or any proprietary right of any person, or that the Work contains any matter that is libelous or scandalous or invades any person’s right to privacy or other personal right, or any other damages any Indemnitee may sustain by reason of breach of any of the warranties or representations in Section X above, and Author agrees, at Author’s own cost and expense, to defend any such claim, demand, action, or proceeding that may be brought against Publisher or the Indemnitees, provided that Publisher shall promptly notify Author with respect thereto. Any settlement intended to bind Publisher shall not be final without Publisher’s prior written consent. If Author shall fail to retain counsel and to undertake the defense as above provided, then Publisher is hereby granted the right to make such defense thereto as Publisher may seem appropriate, and the reasonable expenses, costs, and counsel fees thereof, shall be paid by Author, provided however that Author shall not be responsible for any settlement entered into without Author’s consent. Such consent shall not be unreasonably withheld. Nothing herein shall prevent Publisher from defending any such action or proceeding at its own expense through its own counsel, notwithstanding that the defense may have been undertaken by Author.
(b) Publisher shall include Author under any errors and omissions liability insurance maintained by Publisher with respect to claims. Subject to the terms of any such liability insurance, in the event a claim covered by such insurance is asserted against Publisher and/or Author, the loss(es) or expense(s) up to the amount of the applicable deductible shall be paid by Author, and thereafter the proceeds of such insurance shall be applied toward satisfaction of Author’s indemnity obligations under this Section 4, except that Author shall not have the benefit of such insurance coverage in the event of a willful or reckless breach of any of Author’s warranties, representations or covenants hereunder.
(c) If in Publisher’s reasonable opinion the Work is obscene, libelous or otherwise infringes upon the right of any person, Publisher shall so notify Author in writing in advance of publication and call upon Author to excise the injurious matter within a reasonable time. Should Author refuse to do so or fail to do so within a reasonable time, Publisher shall be under no obligation to publish the Work and may terminate this Agreement and upon such termination all money previously paid to Author shall promptly be repaid to Publisher, and there shall be no further claims, liabilities or obligations between the parties concerning this Agreement.
(d) Publisher shall have the right to extend Author’s warranties and indemnifications contained herein to third parties (such as purchasers of subsidiary rights granted to Publisher herein) and Author shall be liable therein to the same extent as if the warranties and indemnifications were originally made to such third parties.
(e) The warranties and representations set forth in Section 3 and the indemnification set forth in Section 4 above shall survive the termination of this Agreement.
Publisher shall pay to Author and X (writer of The Forward), each individually, royalties on copies sold and paid for, less returns (Publisher, shall maintain a reasonable reserve for returns.) For all royalties to be paid pursuant to this Section, Author shall receive 85% of any royalty payment, and X shall receive 15% of any royalty payment. For the purposes of this Agreement, the term “retain sales price” shall mean the actual price at which Work is sold to customers in the R (name of retail/publisher) Market. As used in this Agreement, “R” shall mean the retail stores and outlets in the Exclusive Territory owned and operated by R, Inc. and its subsidiaries and affiliates. The term “net amount received” shall mean all sums actually received by Publisher from the sales of the Work, less any applicable taxes, and any commissions incurred in making such sales. On Publisher’s editions of the Work the royalties shall be as follows:
(a) On hardcover copies sold through ordinary channels of trade in the United States the following percentage of Publisher’s retail sales price: five (5%) percent of retail sales price to 15,000 units, six (6%) percent thereafter, within the R Market. Eight (8%) percent of net amount received outside the R Market.
(b) On hardcover copies sold through ordinary channels of trade in the United States, at a discount of fifty-five (55%) percent or more: five (5%) percent of the net amount received.
(c) On hardcover copies sold for export outside the United States, including Canada: seven and one half (7.5%) percent of the net amount received.
(d) On reduced format hardcover copies sold through ordinary channels of trade in the United States the following percentage of Publisher’s retail sales price: five (5%) percent of retail sales price to 15,000 units, six (6%) percent thereafter, within the R Market. Eight (8%) percent of net amount received net amount received outside the R Market.
(e) On reduced format hardcover copies sold through ordinary channels of trade in the United States, at a discount of fifty-five (55%) percent or more: five (5%) percent of the net amount received.
(f) On reduced format hardcover copies sold for export outside the United States, including Canada: seven and one half (7.5%) percent of the net amount received.
(g) On trade size paperback copies sold in the United States, through ordinary channels of distribution, the following percentage of Publisher’s retail sales price: five (5%) percent of retail sales price to 15,000 units, six (6%) percent thereafter, within the R Market. Eight (8%) percent of net amount received outside the R Market.
(h) On trade size paperback copies sold through ordinary channels of trade in the United States at a discount of sixty (60%) percent or more: five (5%) percent of the net amount received.
(i) On trade size paperback copies sold for export outside the United States: six (6%) percent of the net amount received.
(j) On audio copies sold: N/A
(k) Notwithstanding the above, the royalties set forth above shall not apply to the sales set forth below, which shall have the following royalties:
(i) On copies sold as premiums (defined as promotional items not for individual resale) net amounts received paid 50% to Author, 50% to Publisher. Publisher’s premium sales are subject to Author’s approval.
(ii) On copies sold to third parties at a discount of 55% or greater off the suggested retail price, the royalty shall be 5% of net amount received.
(iii) On copies sold directly to consumers as a result of Publisher’s direct marketing programs, the royalty shall be 10% of net amount received for hardcover editions and 5% for all other editions.
(iv) On copies sold directly to a third party as a result of Author’s direct marketing efforts to customers with whom Author has a demonstrative relationship with, and in which Author was essential in facilitating the sale, the royalty shall be 10% of the net amount received.
(l) On mass market paperback copies sold through ordinary channels of trade in the United States: N/A
(m) On all copies of a calendar based on the Work (subject to Author’s design approval): $1.00 per unit.
(n) On all copies of note cards based on the Work (subject to Author’s design approval): five (5%) percent of retail sales price.
(o) On ancillary printed products based on the Work (which shall include, without limitation, journals, posters, and portfolios, subject to Author’s approval over products and design): five (5%) percent of retail sales price