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Negotiating Book Publishing Agreements
By Saper Law | September 28, 2007
In negotiating and reviewing book publishing contracts, authors may typically first receive a standard, boilerplate contract. Still, most of these terms are considered negotiable, and should be reviewed by your attorney. Royalty calculations, rights granted, publication issues, revisions – all should be on the table for discussion. What follows are some important provisions that the author should be aware of:
1. Description of the work and delivery of the manuscript
The contract should provide a brief synopsis of the book, any working title, the rough number of pages, and any other potential type of content (photographs, drawings, illustrations) necessary for publication.
There also should be a schedule for the author’s delivery of the manuscript, including provisions for any editing changes – who is responsible, who covers the costs – and final acceptance by the publisher.
2. Publication
Authors should insist on either a firm publication date or a window of time for publication.
If the publisher for some reason fails to publish within the specified timeframe, the author should have the option to terminate the contract after providing written notice.
3. Advances
If the publisher won’t agree to a full, up-front payment, then the author should try to receive it in installments. For example, half on signing, ¼ on delivery of manuscript, and ¼ on acceptance of final manuscript.
All advances should be non-returnable, but if the publisher chooses not to release the book, they do not have to pay the full advance. Still, all advances will be recouped against future royalties.
4. Grant of rights
Unless the book is deemed a “work for hire,” the standard publishing contract allows the author to license or assign only the “print” rights to a publisher. ‘Work for hire’ will result in the publisher/employer owning the entire bundle of rights.
Typically, subsidiary rights, such as electronic versions, film, audio, drama, book clubs, and foreign rights are up for negotiation. Authors should try and limit the number of subsidiary rights granted to the publisher.
5. Royalties
Apart from the actual percentage, the key figure is what price the percentage is based off of. The three common price points are retail price (list), invoice price (list minus freight costs), and net receipts (what the publisher actual ends up receiving). Since retail is the highest base price point, the royalty is likewise lower, than if it was based off net receipts.
The actual rate will depend on the type of book (paperback, trade, academic, hardcover), and the author’s credentials.
The percentage is based on a sliding scale for the number of books sold. For instance, hard cover books may have a royalty of 10% net for books sold up to 5,000 units; 12 ½% up to 10,000; and 15% for everything over 15,000 units.
6. Revisions
Revision clauses usually apply only to nonfiction books. This is a key provision because publishers may attempt to classify each revision as a new book, subject to a new contract or different royalty payment schedule. There should be some type of method to determine when the revisions have become so extensive as to deem it a new book.
Minor revisions should not affect the royalty payments. For instance, publishers may attempt to “reset the clock” on the royalties, and reduce the rate to the original starting point.
7. Discontinuation of publication
If the book goes out of print, the author will want to recover the rights for republication elsewhere. The clause should specify the method for determining when, exactly, the “out-of-print” status begins. Since internet and digital publishing can technically be considered “in print,” this clause should be tied in with the publisher’s marketing endeavors. Once the book is no longer carried in stores or offered in the publisher’s catalog, it should be deemed “out of print.”
8. Assignment provisions
Authors should be prepared for their publisher to be bought, sold and transferred to another corporate entity somewhere in the future. In such a case, the publishing contract – and all of its obligations – may be transferred as well. The assignment clause allows the author to have some say in consenting to another entity taking over the publishing duties. For instance, the publisher should only be allowed to assign to another equally reputable publisher.
9. Non-compete, “other publications”
The publisher will specify that the author not produce or be a part of any other work that may compete with the book. The clause should specify exactly how to define the competing work, and how long the non-compete period lasts. The publisher should provide for some reasonable accommodations, and be able to provide consent to potential conflicts.
A reasonable definition of a competing work would be any “substantially similar non-fiction works involving the same subject, audience, and treated in the same manner.”
Topics: Copyrights, Uncategorized |
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