Whose Rights Are They Anyway?

Some Spanish-language publishers in the United States find themselves in competition with imported titles, and they don't like it

By John F. Baker -- Criticas, 12/1/2003

Ever since it became financially practical to publish books in Spanish in this country, publishers that buy U.S. Spanish-language rights to specific titles sometimes find themselves competing with titles imported from overseas, usually from Latin America. Keeping track of rights is a headache for publishers and distributors of all sizes. Publishers vary in how seriously they take this problem, but they all wish the legitimacy of their rights could be more firmly established in the marketplace. Since rights agreements aren't enforceable (they are more like gentlemen's agreements), the issues and the relationships can become thorny.

For Silvia Matute, director of the general books division at Santillana USA, the rights problem has taken various forms over the years. At first, a few independent distributors brought in books from Spain and Latin America to compete with Santillana's versions. "We started stocking [Spanish-language] titles here in large quantities." says Matute. "We lowered the prices and created a team that provides great service to the customers, so distributors and retailers stopped importing our titles." However, about a year ago, Ingram started showcasing in its database some imported titles to which Santillana held U.S. rights, creating mush confusion. Ingram's new partnership with Argentine retail group Grupo ILHSA allows it to use ILHSA's Buenos Aires distribution center as an Ingram warehouse. This situation can become tricky, because Ingram/ILHSA's inventory falls under Argentine rights agreements, which may differ from U.S. agreements. "Customers now find two books with the same title but different ISBNs and prices," says Matute.

Now with Ingram and Argentina's ILHSA distribution agreement in full swing, rights have become a bigger problem. Ingram sells its list to Amazon and is becoming the primary source for information on the Spanish-language trade market." Funnily enough," Matute continues, "sometimes the Argentine price is higher than ours; but even if it's lower, customers end up paying more for shipping and waiting longer than they would if they bought our U.E. edition from Ingram. I think this is the reason it hasn't really affected our business in the U.S."

But Matute adds that it can be "very annoying, because sometimes Santillana owns the rights to a title in Argentina that we don't have in the United States, and when Ingram offers a title from our Argentine edition, this violates the contract signed with the author and could hurt the sale of the publisher that does own the rights for the United Sates. It also go against the interests of the authors and the agents who can no longer define boundaries in their contracts."

She points a finger specifically at Ingram . "I don't know of another large distributor who is doing this. As for the retailers, we really appreciate the work of chains like Barnes & Noble that refuse to buy books that violate the rights contract." She said that when Santillana notices that Ingram has included any of its titles from Argentina in its database, "we let them know; then they usually mark the book without U.S. rights 'out of print.'" She adds, however, that it is impossible to check the entire database regularly for possible rights infringements, and suggests that Ingram "should simply clean its database and delete any titles that are already being offered in the U.S., either by American publishers or by the local offices of global publishers like us."

Marla Norman, sales director at Planeta's American office, also notes that Amazon gets its Spanish-language listings from Ingram. "We can't not sell to ILHSA," she says, "and Ingram seems to think that because bringing books in from there is a resale, it's not a rights issue." She says Planeta sometimes gets blamed by other publishers for "what gets done down there" and wonders whether Planeta's Spanish-language paperback version of Hillary Rodham Clinton's Historia Viva (Living History), to which Planeta doesn't hold the U.S. rights (although it does hold the hardcover rights), will compete with Simon & Schuster's Spanish-language hardcover when it comes out this spring. When there are conflicts, "we send letters to Ingram and Bookazine asking them to remove the competing imports, but they don't really reply," she says. "All we ask is that they respect the rights that are bought. The major chains work with us on this—they're not a problem."

René Alegria, who runs the Rayo imprint for Spanish-language titles at HarperCollins, readily admits that with such major authors as Isabel Allende and Paul Coelho, there's "a very large problem" in competing with overseas editions. "We have to rush them out to be internationally competitive," he says. He emphasizes that the problem lies more with distributors than booksellers. "Booksellers would rather deal with us. But distributors feel they are meeting the demands of their customers by going abroad for their titles and setting up relationships there."

Ingram execs in Argentina and Nashville see it differently. "I want to emphasize that both Ingram and ILHSA support and respect author rights," says Howard Foy of the Argentina operation. "Although ILHSA depends on publishers to exclude any titles with conflicting Spanish-language rights, both Ingram and ILHSA immediately remove any titles that are discovered to have rights issues." Foy added that in its nearly 12 months of operation, the One Source business has had only four cases of such issues brought to its attention, and in each case the title in question was removed from the offering.

Ingram CEO Jim Chandler agrees that he could think of only a handful of such cases, and stresses how difficult it is to find out who holds the rights in many cases. "Rights are all over the board; there's no central source of information about them, so it's very tough to find out who has what. Basically, we have to rely on trying to match up ISBNs, and that's not always easy." He adds: "We really have to rely on people to tell us if there's a problem, and then I think we've done a good job of cleaning it up. But we have to rely on the publishers to let us know when we're wrong."

René Alegria tends to agree with this assessment, and declines to point a finger. "There's no real monster—no one person or group at fault." And he believes the situation "is getting better—but slowly." He foresees potential problems with the Spanish-language self-help book Poder de la autodependencia (The Power of Self-Dependence) by Jorge Bucay, which he is bringing out in November and which is already widely in print in Spanish-language countries from the publisher Océano.

For Alegria, one of the big rights problems concerns Puerto Rico, and how it is perceived. For American publishers, Puerto Rico is part of the United States, covered in the purchase of North American rights. "But foreign countries don't see it that way; to them it's Spanish territory, and a lot still has to be done to get them to see it our way."

An agent specializing in Spanish-language authors who does not wish to be identified says she was alerted to Ingram's role in this market by its boast that it could get any Spanish-language book in three days. Protecting her authors' rights is of major concern to her, she says. And one tactic she has adopted is to insist contractually that a note be printed on their books coming from Spain, Mexico, and Latin America stipulating that they cannot be sold in the United States or Puerto Rico. She likes to sell U.S. and Puerto Rican rights separately "because of the value the U.S. houses can bring in their college marketing." In other words, the American publishers have the know-how to get Spanish-language books, often important for language and literature classes, into the college market in a way overseas publishers do not.

Thomas Colchie, another agent who represents many Latino authors, says he too separates rights for Spanish-language titles "in ways that work for me." He has found that although some Latin American publishers ship books into the United States regularly, there are still others that don't. In the case of Laura Restrepo's La novia oscura (The Dark Bride), for example, which Norma published in Colombia, Colchie took an additional step and added a clause in the publishing contract stipulating that the book should not be shipped to the United States. HarperCollins holds rights to both the English and Spanish editions.

Colchie says that American bookstores receive overseas books in several different ways, and that some of the stores bring them in directly from Spain. This was particularly true in the early days, when U.S. publishers started issuing Spanish-language titles, because the American-produced Spanish-language books were often of inferior quality. Colchie had been told, too, by several stores, that they got better terms from Spanish publishers and could do better with imported books despite the import costs. Colchie says it was also harder for many of the small stores to receive credit from American publishers.

On the Puerto Rican rights issue, Colchie recalls a meeting he attended at which lawyers for an American and Mexican publisher argued about whose territory it was; the Americans insisted that a Mexican edition could not be sold in Puerto Rican bookstores, while the Mexicans did not consider Puerto Rico part of the U.S. territory.

Colchie also raises an interesting issue about NAFTA, the North American Free Trade Agreement, which in theory created an economically borderless zone from Mexico to Canada; under NAFTA, books published in Mexico should get free entry into the U.S. market. He points out that when American books were brought into certain countries of the European Union, publishers who had bought English rights feared that the books could be legitimately shipped to England to compete with their copies. "In the end, it turned out to be not much of a problem."

Colchie also notes that the earlier inferiority of American-produced Spanish titles has now vanished. At this point, some Spanish readers actually prefer the American versions, which are often in hardcover instead of the ubiquitous Latin paperback, and are better made. The Doubleday version of Laura Esquivel's Como agua para chocolate (Like Water for Chocolate), for example, became a prestige purchase in Latin American bookstores "out of a sense of pride that it had conquered the world," says Colchie. Some Mexico-based bookstores bought the American edition to put on their shelves two years after carrying the Spanish original.

In preparing this article, it became clear that rights issues are not as clearcut as was first imagined. Some publishers who had spoken vociferously in private about the problems posed by Ingram's carrying in its database Spanish-language books whose rights has already been spoken for declined to speak on the record. Others downplayed the actual damage being done, insisting it was more a matter of creating confusion for authors and agents over rights questions. And no one seemed to question Ingram's good faith in eliminating books from its database when publishers challenge its rights ownership.

The question seems to come down to whether it is up to the distributor to make every effort to unearth who owns the rights before taking on a book, or whether the rights holder should do more to make its ownership clear from the start. The ideal solution, of course, would be a central clearinghouse of rights information. Such a database doesn't even exist for English-language titles, so it's unlikely to happen soon for this smaller market. Meanwhile, rights questions will still need to be addressed title by title basis.

John Baker is editorial director of Publishers Weekly and author of the biweekly PW Rights Alert online newsletter.