By Matt Knight (guest speaker, October, 2021)
Audio rights used to be the ugly stepsister of publishing rights, often thought of as throwaway rights included with a group of other secondary rights in a publishing deal. If you think back to when audiobooks made their big splash in the early 1970s with audiocassettes and Books On Tape, the market was small. Production costs were high. Even with technological advances, like the Walkman, audiobooks were still a lackluster investment for publishers.
It wasn’t until the mid-1990s that audiobooks sales boomed, thanks to the Internet and tremendous advances in mobile technologies like smartphones, tablets, and car entertainment systems. These changes soon transformed audio rights into the Cinderella rights of many book publishing deals.
At the end of 2020, audiobook revenue grew by 12 percent, marking the ninth year of double-digit growth in a row. 2021 is looking equally as promising. That’s a hot marketplace ticket. So, it makes sense that authors want to capitalize on that billion-dollar market.
Whether you’re an audiobook producer, a publisher, or a traditionally or self-published author in the market to produce your audiobook, here’s a breakdown of the rights needed to bring an audiobook to market.
1. Book rights
Book rights are the most important. You, the author of creative work like your book, are automatically the copyright owner, which comes with a bundle of five exclusive rights — the exclusive right to reproduce, distribute, perform, display, or prepare derivative works. These rights, collectively or individually, are yours to sell, license, or assign, in any manner you see fit.
Of the five rights, derivative rights are the starting point for producing an audiobook from the original content. Derivative rights include derivative works like abridgments, translations, dramatizations, film adaptions, sound recordings, and audiobooks.
The first question to ask—Do you control your derivative rights, in particular your audio rights? If you are self-published, then chances are high you still own these rights. If you are traditionally published, you’ll need to read your contract. Audio rights are a hot commodity, and most publishers typically want those rights. Depending on the book, publishers like the option to take on or oversee the production of an audiobook. Though, not all books are slated for the audiobook route because of the cost-prohibitive nature of creating an audiobook. It’s still expensive, and publishers must draw the line somewhere.
If your book isn’t on the publisher’s radar to become an audiobook, you can ask for a grant back of those rights. A rights reversion will allow you to oversee the process of creating an audiobook — either sell the audio rights to another company that can produce the audiobook or produce the audiobook yourself.
Most authors pay for production to have their books recorded. The most common digital platform for producing audiobooks is Amazon’s Audiobook Creation Exchange (ACX). The leading distributor to retailers like Amazon and iTunes is Audible.
If you’re going to create your audiobook, you’ll have to hire a producer to help:
- hire a voice artist who will narrate your book;
- record the book;
- hire an audio engineer to capture, process, and master those recordings, along with any music additions, into the final audio files; and
- hire a cover artist to create your book cover (if the original isn’t available from your publisher).
Each of these steps creates certain rights that you must secure if you want to control your audiobook rights.
2. Performance rights
When a creative artist narrates your book, that artist owns the rights to the performance. To secure those rights for yourself, read the artist voiceover contract carefully. All you need is contract language that transfers or assigns to you all artist’s rights in the creative work (i.e., the narration of your book). There must be consideration for that transfer, which will be in the form of money. Consideration should be stated in the contract too. As with any intellectual property transfer or assignment, get it in writing. See my earlier post for more information on transferring copyright ownership and an example of a copyright assignment.
3. Sound recording rights
The voiceover talent isn’t the only one who owns rights in the audiobook. The audio engineer does too. They capture the narrated recordings. They add snippets of background music for the introduction and ending, and the chapter transitions. And then, the engineers process all that creative material into a final master audio file. To secure your audiobook rights, make sure your contract with the audio engineer has similar copyright-transfer language as with the voice artist’s contract.
4. Music rights
You and your producer can use pre-existing music for your audiobook project, or you can hire an artist to record your own music or record pre-existing music. Either way, whether the content is pre-existing or original, the use of music requires the license to at least two copyrights — the musical composition and the sound recording.
a) Musical composition — The copyright in a musical composition includes both the rights to the words and the music. Most lyricists and composers assign their copyrights to the music publishers.
To license these copyrights, you will need a synchronization or “sync” license from the music publisher. Often a music composition will have multiple songwriters. Each of these might be affiliated with different music publishers. Therefore, you would need a sync license from each music publisher for each songwriter.
When you contact the music publisher, your request to use a particular musical composition should include specifics like the nature of the audiobook project, how the song will be used, and note the project is commercial. Music publishers have forms for you to use when requesting a sync license. After you submit your request, the publisher will respond with a quote and propose deal points that you can then negotiate.
b) Sound recording — A record company or record producer usually owns the copyright in a sound recording. To license the sound recording copyright, you will need a master-use license. As with the music publisher, your request to use a particular recording should include detailed information about the audiobook project, how you will use the song, and any other details associated with the project that will help the record company make an informed decision about granting permission.
c) Other music options — If the above routes are too labor-intensive and complicated, you can use public domain music or use royalty-free music from stock music websites. Make sure before you purchase royalty-free that the license includes use in audiobooks. If your creativity knows no bounds, then compose, perform, and record your own music. That way, you won’t need to license the music rights.
5. Cover art rights
Typically, your print and ebook cover art is created by the original publisher, an independent artist, a book cover service, or the author. Whoever created that original cover likely now owns the copyright. It is not OK to use a modified version of your print or ebook cover for your audiobook when someone else owns the copyright. So, unless you (the author) created the cover design for your print and ebook, you need either a license to use and modify the original book cover for the audiobook or a transfer of full rights in the copyright of the cover. If not, then you need to design or hire out an entirely new cover for the audiobook.
If you secure the necessary rights before and during your audiobook production, you’ll have a smoother ride to market with your audiobook.
Good luck! I hope to hear your book on Audible!
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.
Matt Knight is a San Francisco-based writer, blogger, and intellectual property lawyer. He is currently working on THE GENE POOL, a near-future thriller, and the first book of The Residuum Trilogy. His publications have appeared in the New York Times, San Diego Union Tribune, IBPA Independent Magazine, Houston Law Review, and his publishing law blog Sidebar Saturdays.
Matt’s GPS coordinates are split between San Francisco and Maui. When he finds snippets of spare time, you can pinpoint him swimming laps, surfing waves, painting a canvas, or unleashing his inner Julia Child. Learn more about him at mattknightbooks.com and his publishing law blog at sidebarsaturdays.com.
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