November 22nd, 2017
As an author, you may end up negotiating terms directly with a publishing house (rather than through a literary agency). Regardless of whether you have representation by a literary agency or an attorney, but especially in the event you represent yourself, be sure to understand these nine essential points before putting final terms in place.
Understand, and do not underestimate, your bargaining position. There are several factors that may influence your own flexibility and the likelihood of a publishing house to meet your requests for changes to any proposed agreement. They may include but are not limited to: the relative interest in your work (which is usually reflected in the amount/s you are being paid), the size of the publishing company, whether you have opportunities to publish elsewhere (including with other reputable publishing companies), as well as the individual with whom you are negotiating at the publishing company.
Generally speaking, you should not sign the first agreement someone puts in front of you. Make sure you’re protected, and properly represented in the terms of the agreement.
1. THE WORK:
Pay close attention to how the “The Work” is defined. Be sure it is accurate, and tailored to your manuscript so there are no surprises upon delivery to the publisher.
2. COPYRIGHT vs. PUBLISHING RIGHTS:
Never assign or transfer your copyright to the publisher. The grant of any rights involving your work should be carefully reviewed; specific rights to publish the work (in hard cover or parperback form, etc) should be spelled out, and should identify in which territories and languages publishing will occur. Ensure that the publisher is seeking copyright of the Work (i.e. your book) in your name (and in all formats) within 90 days of publishing. (This is important because “upon publishing” without 90-day requirement does not ensure maximum copyright protection for you.) Visit this article for more information on Copywrite.
3. SUBSIDIARY RIGHTS:
All rights not specifically granted to the publisher should be reserved in your name, and this should be expressly stated in the agreement. Unless there is a specific reason you’ve granted subsidiary rights to the publisher, (for example, some publishing houses insist on subsidiary rights to publish audio versions or e-books in addition to the hardcover or paperback versions), you should reserve the rights to all other options or alternatives for publishing and using the work. Subsidiary rights include audio books, e-books, movie, cinematic, play or other dramatic rights, etc.
If you are an entrepreneur pursuing other ways to share your ideas and work, (i.e. if you are pre-releasing digital shorts, excerpts, or creating online programs, courses or other material using the Work, for example), or if you plan to do your own marketing to your audience in advance of the publishing date, you need to examine your ability to do all of these things, which includes carefully reviewing any language affecting subsidiary rights with an eye toward making sure your ability to use and present your work in other ways is not impeded or infringed.
You do not want to inadvertently preclude yourself the ability to use your work in workshops, online courses or programs, live demonstrations, seminars, webinars, etc.
Additionally, insist that no language is included that prevents you from creating additional, subsequent, or even competing works.
Your publisher may request or event require the first right of refusal for a sequel or second work. Your publishing agreement should be clear that the publisher has the right to be provided the opportunity to give you an offer, not that you are bound to work with them under specific pre-defined terms.
If you are receiving an advance and it is to be provided “upon execution,” of the agreement, ensure that the publisher is required to finalize the agreement within 7 or 10 days of your signature. Adding specific timelines protects you from the publisher attempting to forestall payment by not signing or completing the agreement in an expedient manner.
Alternatively, you could request that the advance is to be paid upon your acceptance of the agreement, or the publisher’s receipt of the signed agreement provided by you.
In the event the publisher rejects your manuscript, make sure you are NOT required to return the advance.
If the publisher insists on keeping such a provision, make sure the return of any advance is conditioned upon your being able to publish the book through a different publishing house, and only if said publishing house pays you sufficiently to cover the advance or any previously paid amounts.
6. REPRESENTATIONS AND WARRANTIES:
Have a clear understanding of any language referencing representations and warranties by you. Be sure it is narrowly drafted in your favor, so you are not making representations or warranties for things beyond your control or outside of your knowledge.
Insist your name be added as a named insured on the publisher’s standard liability insurance policy. Attempt to limit anything that places liability for things outside of your control exclusively on you, or with the obligation to repay the publisher for your legal defense.
8. PAYMENT AND ROYALTIES:
Payment and royalty terms must be clear. They are typically outlined as percentages of “cover price” or “suggested retail list price” of hardcover vs. paperback versions.
Do not allow your advance to be conditioned upon the publisher “earning out” the advance in book sales. You don’t want to sign something that requires repayment of the advance!
Also, require an audit clause allowing you or your agent to examine the publisher’s sales and payment records for errors. If any are found to your detriment of greater than or equal to 3%, insist that the publisher bear the cost of the audit, and that you be repaid immediately and with some amount added as a penalty for the error (an additional 3% for example).
9. AUTHORITY TO REVISE AND/OR MAKE SUBSTANTIAL CHANGES:
Insist upon having final approval over any revisions to your work, other than minor spelling, grammatical, punctuation, or formatting errors. This helps to ensure that the Work remains your work.
Finally, keep in mind that even despite bargaining positions, most contracts are not presented as “take-it-or-leave-it” terms. Look at it as an opportunity to request more or better representation of your rights, and as a safeguard against any unfortunate circumstances that may arise. The key to any good contract is clarity, so be sure to ask questions if something is unclear. It’s up to you to protect yourself, especially if you forego legal representation on your behalf. But having a clear understanding of these essential points will help you in any publishing discussions or negotiations involving your work. Happy publishing!
Here are my last three posts in case you missed them!
For more information related to contracts, visit the following articles……
© 2017 Heather Pearce Campbell, The Legal Website Warrior
DISCLAIMER: THE INFORMATION PROVIDED IN THIS POST MAY CONTAIN LEGAL INFORMATION, BUT DOES NOT CONSTITUTE LEGAL ADVICE. NO RELATIONSHIP, INCLUDING ATTORNEY-CLIENT RELATIONSHIP, HAS BEEN FORMED AS A RESULT OF THIS POST. YOU ARE ADVISED TO SEEK THE ADVICE OF AN ATTORNEY LICENSED IN YOUR STATE IF YOU HAVE ANY QUESTIONS.