When Your Creative Work Is No Longer Yours

Right now there is a film called Ombak Rindu that is making its round in the local cinemas. Allegedly this film has collected in excess of RM5 million in its first week. If this performance continues, Ombak Rindu will be one of the best-selling local movies in recent times.

I am not here to write about Ombak Rindu, the film. What interest me is the controversy surrounding the payment received for the adaptation of the novel of the same name.

Long before Ombak Rindu was a film, it was a novel by a (then) unknown writer called Fauziah Ashari. She signed a publishing contract with a company called Alaf 21. I am not privy to the details of the contract, but Alaf 21 recently revealed that the book is in its 24th print, with the final print being 40,000 copies, and that Fauziah has received RM219,000 in royalties for previous sales of the book. If the latest print is sold out, she stands to receive RM50,000 in royalties.

Ombak Rindu the book sells for RM19.90. So let’s do a little math for this latest print:

  • Unit price of book RM19,90 x 40,000 copies = RM796,000
  • Publisher bears all the cost of printing, distributing and promoting books, let’s assume this to be on the high side i.e. 30% of gross sales, so that’s RM796,000 x 30% =  RM288,800.
  • Since royalty payment is always calculated on net sales, and Fauziah gets RM50,000, that means she gets 50,000/(796,000-288800) x 100% =  9% (I round it up)
  • If you deduct all these costs and royalty payment, Alaf 21 still makes a cool half million out of this author’s creativity, or 91% of the net sales.

While I am not here to argue whether the contract was lopsided or otherwise, I would like to point out that in 1998, authors (originators of the creative content) receive between 8-12% royalty against sales, after all expenses were deducted. If you were the singer/band, you get between 8-10%. So, if you were a singer-songwriter and you were smart about the deal, you could receive up to 24% in royalties. The record company still takes the lion’s share though, that’s the way the world was then and it’s the way the world is now. Fauziah signed her contract in 2001 so her 9% deal would have been standard.

Now, 23 prints later Ombak Rindu became a massive hit among local readers. A movie production company Tarantella Pictures approached Alaf 21 to get permission to adapt this novel into said film and for this Alaf 21 was paid a grand sum of RM4,000. Alaf 21 then apportioned RM1,600 to Fauziah, which is 40% of payment received. Small, yes; but certainly higher than 9%.

At the pre-screening of this movie, Fauziah expressed her disappointment at the way it was being adapted, saying that some key scenes were removed or altered. Creative differences is always a tricky thing, writing a screenplay is not the same as writing books: scenes have to be shorter, lines have to be punchier, certain events have to be altered to fit the pacing and timing of the movie bla bla bla. Nothing much happened aside that, remember at this time the movie was yet to be released to general audience.

Then the movie opened. When the movie was said to be hitting its first RM2million, Fauziah came out in the open, expressing her disappointment at the small payment that she received for the film adaptation – we know now that the sum was indeed very small i.e. RM1600.

Camps were divided: some felt Fauziah is greedy and ungracious (an opinion that Alaf 21 itself has expressed in its press conference about the matter); and some felt she was cheated and should receive some form of royalty or further remuneration being that the movie is such a hit. No novel, no movie, right?

Alaf 21 (in the same press conference) made this statement (verbatim, taken from Beautifulnara.com) – the bold highlights are mine:

Pihak kami telah menjelaskan kepada penulis-penulis kami untuk membaca dan memahami sepenuhnya kandungan kontrak sebelum tandatangan. Malah, di dalam kontrak, terdapat klausa yang menyatakan pihak penerbit boleh melakukan apa sahaja kepada hasil karya penulis sama ada diadaptasi kepada pelbagai bentuk tanpa perlu merujuk kepada penulis. Projek filem adaptasi ini merupakan satu langkah promosi untuk melariskan kembali jualan buku yang kini sudah kembali dicetak sebanyak 40 ribu naskah

Roughly it translates as follows:

We have explained and made clear to our authors to read and fully understand their contracts before signing them. In fact, in the contract there is a clause that states the publisher can do anything to the creative works of the author, including adapting it into any other form without referring to the author. This film adaptation is a promotional activity to induce sales of the book, where 40,000 copies have been reprinted.

More than 10 years ago, I wrote about the basics of copyrights and contracts. A couple of years back I updated these and they are now available in two separate posts that you can find under the Rockstar Manual tab.

Fauziah’s case is EXACTLY what happened to a lot of musicians that I know. They signed away their publishing rights without knowing it. From Alaf 21’s statement above, it is pretty clear that they hold and manage the global publishing rights to the book and its permutations. In other words, if they made t-shirts, songs, greeting cards, bookmarks, comics, or even a theme park based on Ombak Rindu the novel, Alaf 21 does not have to consult Fauziah and, I suspect, does not have any obligations to pay her further for these adaptations too. In other words, when they claimed they were being generous by sharing 40% of the payment they received for the movie adaptation, they were!

Let’s pause for a while so that you can digest all this information.

No outrage now please, I am not writing this post to argue about the unfairness of it all. The world works that way, deal with it.

The question you would like to ask me now is this: is Fauziah screwed indefinitely?

I don’t know. It pretty much depends on the original contract that she signed with Alaf 21. These are the questions Fauziah needs to answer:

  1. How long is the term of appointment, or the duration of the contract?
  2. What are the territories covered – is it just Malaysia or globally?
  3. What are the languages covered, for example if the novel is translated into other languages, will she still get payment? Or, if other languages are not covered, can she then sign a contract with a different publisher to produce the book in English, for instance?
  4. Does “adaptations” cover digital distribution? For instance, if she sells the book via Kindle, does she need to pay Alaf 21 91% of the digital sales revenue?
  5. What are the remedies if she decides to terminate the contract and re-negotiate a new one?
  6. Does she include back-end deals in the contract like royalty for syndication, royalty against movie ticket collection etc?

As for me, I stand by my original opinion – authors, be it musicians, painters, writers, even software engineers – need to understand their rights and take the time to dissect a contract thoroughly before signing it. Yes reading contracts, taking care of copyrights matters…. they are a pain and mostly academic. But you will regret it if you don’t – she didn’t say it outright but I infer from her outrage Fauziah is probably now wishing she had been a b*tch during the contract negotiations stage and discussed all these matters before signing them.

I think it is a failure on the authors part if they didn’t do this – complaining about it now or saying “But I didn’t know that” is  crying over spilt milk. The repercussion, as you can see in Fauziah’s case, is in the millions. You may think she made a lot when Alaf 21 revealed that she has received RM219,000 in royalties, but remember that THAT is only 9% of the revenue. Alaf 21 would have made mmmmm…. RM2.4million and change, maybe? Let’s just say it is more than enough to buy an Audi R8.

And judging from the reaction to Ombak Rindu the movie, Tarantella seems to be well on their way to collecting their millions too.

This is a cautionary tale. Know your rights, protect them, be smart about it. Don’t feel that just because you are a newcomer or a small fry you have no voice. You do. The creative work is yours, you can tilt the power balance to your advantage. No authors, no novel/song/painting – see?

Think about it.

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