The Assignment Clause in a Book Publishing Contract

Q: What is the assignment clause in a book publishing contract? Is it important?

A: It defines whether you or your publisher can give-grant-sell to someone else the rights and obligations found in your Agreement. It might matter a lot.

I’ve worked on and signed hundreds of book publishing contracts as a publisher, author, agent, and packager. The first Agreement I signed as an author was in 1986 (the book is still in print and I still get a small royalty check every six months) and was just two pages long. Most publishing contracts today go from twelve to twenty pages with the goal of covering absolutely any and every potential situation and conflict imaginable in the ever-expanding and changing publishing universe.

I recently got a call from a friend from the advertising industry who was working on book contract, which was filled with new language and terms for him. He had a checklist of questions, including the assignment clause, which I explained in the above terms. He then asked if the clause was ever negotiated and if it really mattered.

The answer is yes and yes.

Most boilerplate contracts sent out by a publisher specify that the publisher can assign an Agreement at will and that an author can assign an Agreement with publisher’s approval. That construct obviously favors the publisher and many authors and agents want reciprocal assignment conditions – or no conditions for assignment at all.

The main question for an author is:

What if my publisher is bought by another company – do I want to give blanket permission for any corporation to own my publishing rights?

The publisher can ask the same question from the opposite direction:

What if my author decides to sell copyrights for their intellectual properties – do I want to give blanket permission for them to put me in a contractual business relationship with any company?

One other important issue for the publisher is the assignment of duties, which include writing, promoting, and providing your name to a work, and which are detailed in the Agreement. Most assignment clauses will not allow an author to assign to someone else the duty of being the author! (Hiring a ghost writer or book doctor under a Work-Made-for-Hire agreement is not the same thing.)

I didn’t see the assignment clause become a real business issue in my first twenty years in publishing. With restriction and consolidation in the industry, the assignment clause has moved front and center.

My first experience, on the publisher side of the table, was not a favorable situation for the publishing company. The author had been granted approval rights before the publishing company could assign the Agreement to another corporation. The publishing company was up for sale but the CEO and CFO could not guarantee that this specific Agreement was part of the assets being purchased, putting a question mark on the final sale price. The author’s agent leveraged that question mark to renegotiate an already generous deal. So yes, the Agreement was included in the catalog of the company – but the new terms lessened the value of that asset.

The one time I’ve seen it work against an author was when a company was sold to the author’s previous publisher where their relationship had not ended on a positive note. The author had left for what she felt were significant reasons and was naturally nervous to return – but had no approval rights within the assignment clause.

In the tumultuous world of publishing today, it is always a good idea to think through the actual conditions for assignment and termination of an Agreement.