Your book is written, edited, and formatted. The cover design is superb. You’ve published it on Amazon. You’re kicking the sales machine into gear—knee-deep in marketing and courting readers. One highly recommended way to sell more books is to bundle your e-book with an audiobook. Although audiobook unit sales are still small, the market for audiobooks has grown exponentially in the past few years and is the fastest growing format in the book business today according to The Wall Street Journal. Audiobook creation and sale is an income producing and readership building opportunity that is the natural next step in an author’s business model.
When exploring the various options available for creating your audiobook, there are a few key copyright concepts you need to keep in mind. As the author of your book, you own the copyright in the content that will be narrated. You became the owner of that copyright the minute you created it (so they say) and presumably have already applied for the copyright registration in your underlying work. Just to refresh your recollection, copyright in your written work actually includes a bundle of rights: the right to reproduce, create derivatives, distribute copies, and perform your work publicly.
There is another set of rights that attaches to audiobooks and those rights are not necessarily owned by you unless you plan for it. You need to know what those rights are, who owns them, and how to secure them for yourself so you have control over the revenue generated by audiobook sales.
An Audiobook is a Sound Recording
From a copyright perspective, an audiobook is a sound recording—a work that results from “fixing” a series of spoken, musical, or other sounds. “Fixed” means that the sounds are embodied in a recording. Generally, copyright protection extends to two elements in a sound recording: (1) the contribution of the performers whose performance is captured; and (2) the contribution of the person responsible for capturing and processing the sounds to make the final recording (the producer).
The owners of the copyrights in a sound recording are the performers and the producers. If you hire someone to be the voice of your audiobook, that person owns the rights in his performance. If the audiobook is not recorded and produced by you, the individuals or entities who engineered and produced the audiobook own that element of the sound recording copyright.
A simple contract in which the voice over talent and the producer or engineer transfer (or assign) all of their rights to you in exchange for some consideration—payment—is all you need to secure those rights for yourself. The basic understanding that you are the owner of all the rights needs to be in writing. A straight “work for hire” agreement may not be sufficient because voiceover talent and production/engineering work do not fall squarely into the nine work for hire categories defined in the Copyright Act. The simple contract that will do the trick is commonly known as an intellectual property transfer (or assignment) agreement.
Many intellectual property transfer agreements contain work for hire language as well as language transferring intellectual property rights. This is the “belt and suspenders” approach. Although it may be that the work of the voiceover talent or the production services provided by the engineer does not fall into a standard work for hire contract, by adding transfer language to the work for hire language, you can be sure that all rights will be owned by you when the project is finished.
Audible.com’s Audiobook Creation Exchange (ACX) uses the belt and suspenders approach in the form contracts it provides its creators. For example, here is a modified excerpt from the contract ACX suggests using with an engineer:
This is the basic understanding.
ENGINEER understands and agrees that all right, title, and interest in the WORK is owned and controlled by RIGHTS HOLDER [that’s you].
This is the belt.
ENGINEER agrees that all WORK produced by ENGINEER while performing the services, including any unfinished audio recording and the audiobook is a “work made for hire” to the full extent permitted by law, with all copyrights in the WORK owned by RIGHTS HOLDER. ENGINEER agrees that all right, title, and interest in and to such work will be owned, immediately upon creation, exclusively by RIGHTS HOLDER.
These are the suspenders.
To the extent that any work of ENGINEER would not qualify as a work made for hire under applicable law, ENGINEER hereby assigns [this could also say “transfers”] to RIGHTS HOLDER all right, title and interest ENGINEER may have in and to such WORK, including all copyright, rights of authorship or rights of publicity in the work.
Now that you know about these few simple sentences, they should be included in the contracts that you use when you hire other people to help you create your audiobook. That way, you can be sure that you control all the rights and there will be no surprise claims made by voiceover talent, engineers or producers against royalties earned in the future.
Using Music in Your Audiobook
Audiobooks often begin with a musical introduction. Music is sometimes also used in the background or as a transition between chapters or parts of an audiobook. Unless you composed, performed and recorded the music yourself, it needs to be licensed. The copyright in music is owned by the composer, the performer, and the producer just like the copyright in the sound recording of your audiobook is owned by the voiceover talent, engineer and producer. If you buy royalty-free music, you need to be sure that you are buying a license that permits its use in audiobooks.
Who Owns the Cover Art?
Like music, unless you created the cover art you intend to use on the audiobook, you must either have the rights transferred to you or license it. The copyright to cover art is owned by the artist. Often times, when commissioning cover art the author doesn’t anticipate future needs and use of the art on an audio book cover may not be contemplated by the original contract.
If you start building the creation of audiobooks into your workflow and marketing plan, the transfer of the copyright to the cover art should be dealt with when the cover is ordered. If it wasn’t, you have to go back and secure the rights with the artist.
A Final Note
The information in this post is intended primarily for self published authors but the principles of copyright ownership of an audiobook are the same for traditionally published authors. The difference is that a traditional publisher, if it secured audiobook rights in its publishing agreement with you, is responsible for managing the rights in the sound recording to ensure that the creation of the audiobook from your underlying work meets the terms of the agreement.
Understanding the rights that you have, as well as the rights you must gather together, to generate multiple revenue streams from your creative work is the key to a successful creative career.
If you have any questions about how this works or have run into any of these issues when creating your audio book, drop in a comment. Inquiring minds like to know.
Photo Credit: VisualHunt
Disclaimer: Since Kathryn’s a lawyer, she has to mention that she’s not *your* lawyer (so these articles aren’t technically legal advice), but you’re still invited to download her Rip-Off Protection Report for Creative Professionals. Follow @KathrynGoldman on Twitter.