Generally I am writing for Indie authors, and how they can successfully run their publishing business. However, many of these tips, especially those about book marketing, can be used by “published” authors as well. But in these promising times for author-publishers, there are still many writers who want to go with a trade publisher. As always: Author Beware! Get helpful information in this article, such as the – very detailed – checklist for your publishing contract negotiations.
Lawyer Lloyd J. Jassin, specialized in Publishing and Entertainment Law, posted via GooglePlus:
“A book is a book, except when it comes to e-Book royalties.”
A class action lawsuit has been filed against Simon & Schuster Publishing House by class representative Sheldon Blau, MD., – represented by Law offices Lloyd J. Jassin. Why? Lloyd J. Jassin explains:
“The royalty rate for e-book sales is much lower than the rate for the license of rights. If categorized as a “LICENSE”, the author receives 50% of net receipts, rather than 25% of net typically paid to authors for the “SALE” of an e-book.”
If you work with a trade publisher, better check your contract, if it says: “license” or “e-book-sale”… And while you are at it, go through your publishing contract, and compare it with the following list, compiled by contract lawyer Lloyd J. Jassin.
Publishing Contract Negotiations.
Negotiating a publishing contract is a lot like buying a house or a car. There’s some give and take, not everyone will get the same deal, especially for new authors and sometimes you have to pass on a publishing offer, if there are non-negotiation clauses that would interfere with your writing career. What can authors do to get a fair deal? Before navigating the minefield of book negotiation, READ the contract you have been offered, carefully, several times, line for line… Use the checklist below, and ask the publisher or your agent IN WRITING what the clauses mean which you don’t understand, and think long and hard about the consequences for you. Don’t accept a phone answer, get it in writing!
BEFORE you sign the contract, make an appointment with a contract lawyer to handle your contract negotiations. Agents are not trained and able to give you legal advice! How to hire an attorney who can help you is described in Kristine Rusch’s useful article.
A couple of hundred dollars are a good investment that helps you possibly with all contracts during your writing career.
Publishing Contract: Checklist What to Negotiate:
I. General Provisions
1. Name/address of parties
-Why kind of author? Joint? Single? Corporate entity?
2. Description of work (synopsis)
-Tentative title, no. of words, intended audience, fiction, non-fiction…
II. Grant of Rights and Territory
1. Is it an assignment of “all rights” or a license agreement?
2. Term or time period (i.e., usually the life of the copyright)
3. Geographic scope
b) Limited (e.g., U.S., its possessions and Canada)
4. Exclusive rights granted
a) Primary rights
b) Secondary (subsidiary rights)
1) First serial (i.e., pre-publication excerpts)
2) Second serial
-Video Recordings / Audio Recordings
-Other digital versions (apps, enhanced eBooks)
-Merchandising (commercial tie-in) rights
-Foreign translations rights
-British Commonwealth rights
III. Manuscript Delivery
1. Delivery requirements
a) When due? Is the date realistic? Time is of the essence?
b) What format? Specify size of paper, spacing, margins, etc.
c) What to deliver?
-Number of manuscript copies, disks (what WP format?)
-Index (who pays?)
-Number of illustrations, charts, photos (who pays?)
d) Copyright permissions and releases
-Scope of rights (does it parallel grant of rights?)
2. Manuscript Acceptance
a) Criteria: Satisfactory in “form and content” or at “sole discretion” of the
publisher? (Note: Historically, this clause has been a litigation flashpoint)
b) Termination for unsatisfactory manuscript
c) Termination for changed market conditions
d) How is notice of acceptance or dissatisfaction given
e) Good faith duty to edit
f) Return of the author advance
-First proceeds clause
-False first proceeds clause
IV. Copyright Ownership
1. In whose name will work be registered?
3. When will work be registered? (Should be done within statutory period).
4. Joint authors
5. License versus assignment
6. Independent Contractor or Work for hire
7. Reserved rights
-Overlap between audio & multimedia on the one hand, & performance rights on the other
-Overlap between print on the one hand, & screenplay / play publishing on the other
V. Author’s Representations & Warranties
1. Author sole creator
2. Not previously published; not in public domain
3. Does not infringe any copyrights
4. Does not invade right of privacy or publicity
5. Not libelous or obscene
6. No errors or omissions in any recipe, formula or instructions
7. Limited only to material delivered by Author
VI. Indemnity & Insurance Provisions
1. Author indemnifies publisher
2. Does indemnity apply to claims and breaches?
3. Can publisher withhold legal expenses? Is it held in an interest
4. Is author added as additional insured on publisher’s insurance?
5. Does publisher have ability to settle claims without prior approval of
author? If so, are there a dollar amount limitation?
1. Duty to publish within [insert number] months of ?
a) Force majeure (acts of god)
– Any cap on delays?
2. Advertising and promotion
3. Right to use author’s approved name and likeness
4. Bound galleys/review copies
5. Style or manner of publication
a) Title consultation or approval?
b) Book jacket
– Right of consultation? Approval?
c) Changes in manuscript
6. Initial publication by specific imprint or publisher may sublicense
VIII. Advances & Royalties
1. Advance against future royalties
2. When payable? (in halves, thirds, etc.)
3. Royalties and subsidiary rights:
a) Primary rights
-Trade paperback royalties
-Mass market royalties
1) deep discount and special sales
2) mail order sales
3) premium sales
4) small printing
5) slow moving inventory
6) bundling with other works
b) Secondary (subsidiary) rights royalty splits
-Book club (sales from publisher’s inventory v. licensing rights)
-Serialization (first serial, second serial)
-Anthologies, selection rights
-Large print editions
-Future technology rights
. -Audio rights
4. Reasonable reserve for returns
a) What percentage is withheld?
b) When liquidated?
5. What is royalty based on? (Retail price? wholesale price? net price?)
a) At average discount of 50%, 20% of net is same as 10% of list
b) At average discount of 40%, 16-2/3% of net is same as 10% of list
c) At average discount of 20%, 12-1/2% of net is the same as 10% of list
6. Recoupment of advances
IX. Accounting Statements
1. Annual, semiannual, or quarterly statements
2. Payment dates
4. Audit rights
5. Limit on time to object to statements
6. Limit on time to bring legal action
7. Examination on contingency basis
8. Pass through clause for subsidiary rights income
9. Reversion of rights for failure to account
X. Revised Editions
2. By whom?
3. Royalty reductions if done by third party
4. Sale of revised edition treated as sale of new book?
5. Reviser/Author credit
1. Definition of next work
2. When does option period start?
3. Definiteness of terms (i.e., is option legally enforceable?)
4. What type of option? (e.g., first look, matching, topping)
XII. Competing Works
1. How is competing work defined?
2. How long does non-compete run?
3. Any reasonable accommodations?
1. How defined? (Eg, __ copies sold over __ accounting periods)
2. Notice requirements
3. Author’s right to purchase digital files, inventory
1. What triggers reversion of rights?
a) Failure to publisher within ___ months of manuscript acceptance
b) Failure to account to author after due notice
c) Failure to keep book in print (see Section X)
2. Survival of Author’s representations and warranties
3. Licenses granted prior to termination survive
4. First proceeds clause
1. Choice of governing law
2. Mediation / Arbitration?
5. Literary agency clause
6. Personal guarantee if the author is a business entity, not a human being.
In case you ever need their advice:
Law Offices of Lloyd J. Jassin
1501 Broadway, New York, NY 10036
LLOYD JASSIN is a New York-based publishing attorney. He teaches a digital rights & permission at the NYU Publishing Program. He is co-author of the Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.).
Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners. A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association (IBPA) and sits on the advisory board of The Beacon Press, one of America’s oldest independent presses.