Happy Tuesday, my bookish peeps, and welcome to October. Do you audio (listen to audiobooks, that is)? I recently developed the habit of listening to audiobooks, especially during road trips. As an audiobook listener, I haven’t given much attention to things such as whether or not the author has the rights to the audiobook or not. However, publishing and rights can be very convoluted so it is definitely a good idea to know what you as an author own and don’t own for your writings. As a reader, I definitely want authors to receive their fair share for their hard work. I’m honored to welcome back, Jodé Millman, author of The Midnight Call to the blog today. Ms. Millman will be discussing audiobooks with us, especially from the perspective of the author. I’m sure this information will be helpful for all of you authors and aspiring authors out there. Thank you, Ms. Millman, for taking the time to join us today. I look forward to learning your thoughts on audiobooks. I’ll now turn the blog over to you.
Listen Up: Do you own the rights to your Audiobook?
by Jodé Millman
As writers, we can’t help being excited about hearing our characters’ voices come alive on digital audiobooks. And audiobooks are enjoying a wave of popularity, which has only surged since the pandemic. According to the Audio Publishers Association, in 2021 the market grew by 25% to a $1.6B industry, following a trend of double-digit growth during the last ten years.
In 2021, nearly 74,000 audiobooks were published, representing a 6% growth over 2020, and now audiobook sales represent 9% of the total U.S. book sales. Of course, the 2022/23 picture will be different, given readers continued thirst for audio entertainment. And just so you know who’s listening, 54% of frequent listeners are under the age of 45, and new listenership and audiobook memberships have increased four-fold.
This good news means that digital audiobooks are creating a new revenue stream for writers. The great news is that the second-most popular genre is Mystery/Thriller/Suspense, after Sci-Fi/Fantasy, with Romance and Fiction taking a close third place.
Now that the optimistic industry trends have been covered, this article will examine whether authors own the rights to their audiobooks. The answer may surprise you.
Published Book versus Audiobook
First, let’s examine the difference between a “published book” and an “audiobook” which extends beyond their respective mediums – print versus digital recording. Be forewarned that understanding the concepts of “published books” and “audiobooks” is a bit like trying to get a handle on The Cat in the Hat‘s Thing One and Thing Two. The main premise is that “published books” and “audiobooks” are two separate legal and creative entities. Thing One (Published Books) is the original, underlying manuscript, which is owned by the author of the work and is protected under the Copyright Law. Thing Two (Audiobook) is considered a “derivative work” because it is a sound recording based upon a preexisting work – the manuscript. To create a sound recording, the publisher must first obtain the right to use the “published book” from the author, which will be covered later in the article.
Under the Copyright Law, a sound recording of the book must be captured in a medium from which it can be perceived, reproduced, or otherwise communicated to others such as a digital track, disk, tape or other format. To clarify, a sound recording is a “fixed” recorded performance of a preexisting work, such as the Hamilton soundtrack derived from the Broadway production/book of Hamilton or the performance of Davinia Porter reading Diana Gabaldon’s Go Tell the Bees That I am Gone.
Performance + Production = Audiobook
Typically, the sound recording of composed of two parts – the performance captured in the recording and the parties who captured and processed those sounds to create the final performance. Under the Copyright statute, an author owns the underlying material, however, the publisher who produces the audiobook owns the sound recording, which includes both the performance (voice recording) and the production (capturing and engineering the sound), which also carry separate copyrights. Other than the right to royalties negotiated for the use of the novel, the author generally has no legal entitlement to the audiobook.
Similarly, the voice-over artist may claim copyright ownership of their performance on the recording, unless they were employed by the publisher to narrate the audiobook. When someone is a “work for hire,” they possess no independent claim to the audiobook simply because they performed the narration. Think of the voiceover artist as being a backup singer for the Rolling Stones. Merry Clayton is best known as Mick Jagger’s amazing duet partner on “Gimme Shelter.” She was compensated for singing during the recording session but receives no subsequent royalties whenever the song is played or the record is sold. She was merely an “artist for hire.”
License to Thrill
As mentioned above, in order for a publisher or audiobook producer to produce an audiobook, they must first obtain permission from the book’s author, the original copyright holder, to use or record the book. This grant of permission is included in a publishing agreement as known as a “subsidiary right.” The Author’s Guild Model Contract suggests that the audiobook royalties be equally shared between the publisher and author – 50/50. However, publishers argue that they bear the cost of producing, marketing and distributing the audiobook, which could be substantial. When negotiating your publishing deal, be aware of this valuable subsidiary right as it may mean substantial revenue in this rapidly changing digital environment.
Under the Copyright Law, an author’s entitlement to assign or license a book for use by another party is among the many rights protected under the law. Briefly, “assigning” the rights to the book means that an author is transferring or divesting all of the rights to the work. A great analogy is selling a car; the car is something that will never be returned. In contrast, “licensing” the book means that an author is allowing the use of their manuscript under limited circumstances. It’s like leasing the car–it will be returned at the end of the term. Licenses can be exclusive (one producer) or non-exclusive (multiple producers), but generally, licenses are exclusive.
As in my situation, my original publisher included the right to produce an audiobook of my debut novel, The Midnight Call, in my publishing agreement. They were entitled to the exclusive license to produce the audiobook for a period of two years after the publication of the book. If they failed to produce the audiobook within that time, the rights reverted to me, and I was free to either produce the book myself or license/assign it to another party. The audiobook was released in May 2020, which was nine months after the publication date of the trade paperback, and my publisher and I shared the royalties from the project. When my contract with them ended, I received my audiobook rights from them, and now I am the audiobook publisher with my own account on ACX and I receive all of the royalties from the copies sold.
It is also the responsibility of the producer to create an end product, which meets the quality standards acceptable to Audible, iTunes, or any other distributor. Audible.com’s Audiobook Creation Exchange (ACX) will not release any audiobooks that fail to meet those standards, and during the pandemic, the review time expanded from ten to more than thirty business days after submission for review.
In June 2022, Spotify acquired Findaway, an audiobook publishing and distribution platform, as part of the streaming app’s plans to expand into audiobooks. This offers independent authors and small presses another resource for entering the digital audio sphere and reaching Spotify’s 162 million monthly listeners using an à la carte approach, rather than a subscription model.
Producing your own Audiobook
If an author has retained the right to produce the audiobook or is self-published, then the landscape is quite different. The author producing their own audiobook would be responsible for: bearing the cost of engineering, finding the talent, drafting and executing a talent “work for hire” agreement, and bearing the costs of the talent, marketing and distributing the product. It is akin to self-publishing in the audio realm. Audiofile.com is a great industry resource and maintains a directory of audiobook talent and publishers. Additional resources to assist the creation of an audiobook can also be found through the Audio Publishers Association at Audiopub.org, Authorsguild.org, Copyright.gov, and ACX.com.
The downloadable audiobook market is booming, creating new revenue streams and challenges for authors. When negotiating a publishing contract, don’t undervalue the potential of the subsidiary right of audiobooks. Be sure to negotiate your fair share of royalties in this category as well as all other technological methods for the delivery of your manuscript to readers. And if you elect to enter the Wild West of audiobook production, there’s plenty of sound advice available. ♦
The Midnight Call
by Jodé Millman
October 3 – November 18th, 2022 Virtual Book Tour
Who would ever suspect that their mentor, teacher, and friend was a cold-blooded killer? Jessie Martin didn’t—at least not until she answers the midnight call.
Late one August night, Jessie’s lifelong mentor and friend–and presently a popular, charismatic, and handsome high school teacher–Terrence Butterfield calls. He utters a startling admission: he’s killed someone. He pleads for Jessie’s help, so out of loyalty she rushes to his aid completely unaware that she’s risking her relationship, her career, and her life–and that of her unborn child–to help Terrence.
Does Jessie’s presence at Terrence’s home implicate her in the gruesome murder of the teenage boy found in the basement? Why does Terrence betray Jessie when he has a chance to exonerate her of all charges? Has he been a monster in disguise for all these years?
To reclaim her life and prove her innocence, Jessie must untangle the web of lies and reveal the shocking truths behind the homicide. The quest turns out to be the fight of her life: to preserve everything and everyone she holds dear.
Praise for The Midnight Call:
WINNER OF THE 2020 BRONZE IPPY AWARD, 2020 INDEPENDENT PUBLISHER BOOK AWARD FOR SUSPENSE/THRILLER AND THE 2020 AMERICAN FICTION AWARD FOR LEGAL THRILLER.
USA Today Network
“The tricky legal maneuvering intrigues…Millman writes with verve.”
“If you like courtroom battles, this legal thriller fits the bill!”
Chanticleer Reviews, Four Star Review. The Midnight Call won First Place in the 2014 CIBAs in the CLUE Awards
“An intriguing courtroom thriller.”
Top Shelf Magazine
“Friendship, insanity, the drama of a courtroom, with a touch of romance rounding out the narrative, will have readers struggling to answer the question: What happens after you answer that terrifying midnight call?”
Genre: Suspense, Thriller, Romantic Suspense
Published by: Level Best Books
Publication Date: September 2022
Number of Pages: 400
Series: Queen City Crimes, Book 1
ASIN: B0BGQK7DY2 (Kindle edition)
ASIN: B088YJ7X43 (Audible audiobook)
Purchase Links #CommissionEarned: Amazon Kindle | Audible Audiobook
Jodé Millman is the acclaimed author of Hooker Avenue and The Midnight Call, which won the Independent Press, American Fiction, and Independent Publisher Bronze IPPY Awards for Legal Thriller. She’s an attorney, a reviewer for Booktrib.com, the host/producer of The Backstage with the Bardavon podcast, and creator of The Writer’s Law. Jodé lives with her family in the Hudson Valley, where she is at work on the next installment of her “Queen City Crimes” series —novels inspired by true crimes in the region she calls home.
Discover more about Jodé, her work, and sign up for her newsletter at:
BookBub – @JodeMillmanAuthor
Instagram – @jodewrites
Twitter – @worldseats
Facebook – @JodeSusanMillmanAuthor
Visit these other great hosts on this tour for more great reviews, interviews, guest posts, and giveaway entries!
This is a giveaway hosted by Partners in Crime Tours for Jodé Millman. See the widget for entry terms and conditions. Void where prohibited.