Trade Publisher’s Unethical Contract Practices

Publishing-Contract

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You might have read several articles we published in the past about the unethical contract practices of trade and Vanity publishers, and how they deceive their authors. Headlines were for example:

“Less than Minimum Wage for Authors?”

“The Traps in Publishing Contracts”

“What Publishers Won’t Tell You”

In these articles and many others we were pointing to the worst parts of publishing contracts, found under these paragraphs:

Duration of the contract
Rights granted by the author to the publisher
Territory for these rights
Out-of-Print Termination
Reversion of rights
Advances and Royalties
Statements and Payments
Competing Works

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What about Arbitration, Marketing or Editing?
Do you contract with a publisher who made you a book contract offer demanding arbitration, an unfavourable marketing or editing clause in its contract?

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Arbitration Instead of Civil Court.
Arbitration clauses, hidden in fine print of many contracts, often buried under other headings, like “Reversion”, “Termination”, “Dispute” or “Miscellaneous”.

Arbitration clauses have deprived authors of one of their most fundamental constitutional rights: to sue in court.  Judges and juries have been replaced by arbitrators who commonly consider the companies their clients.”  But arbitration clauses are increasingly common in publishing contracts, and even in the “Terms of Use” of some major self-publishing platforms.  Are you aware of their implications?  Kobo Writing Life, Smashwords, Draft2Digital, BookBaby, and IngramSpark for example don’t have arbitration clauses. Lulu includes an arbitration clause with a class action ban.
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Law in Plain English for Writers.
This valuable 300-pages guide book for authors explains: …”be aware that the resulting arbitration decision cannot be appeal and the process will not contain many of the procedural safeguards that are a part of the judicial process.”
And: “Arbitration does not provide for any pre-trial discovery, unless the contract allows the American Arbitration Association’s Commercial Rules to be used.” Just two examples of the valuable tips in this inexpensive law guide book for every writer – whether first-time author, seasoned freelancer or professional journalist.
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Next Problem: Marketing
When I red a fantastic book recently I was curious if this author has a digital version of the title available. Her Amazon page – set up by her publisher – shocked me, it’s the worst author page I have ever seen! I looked up the “publisher”, a tiny, home-run company in Kelowna, BC, Canada.

Until two decades ago, publishing houses did some marketing for books. Now, in the best case, publishers might send out some galleys to reviewers and wait to see if anyone is interested. Then they focus all their publicity on the books they expect to be a bestseller.  Rachelle Gartner a publishing agent set up a whole page, listing marketing efforts of publishers – in the best case, and for the VIP authors.

If you want your book to be a success, YOU will have to do ALL the publicity yourself!  That’s how it works most of the time.

Marketing activities vary widely from publisher to publisher.  The “bigger” the author, and the more money they expect to make on the author, the more they’ll spend on marketing.

On the other end of the spectrum is a publishing contract that states: “publicity is at our discretion” – even if it is just a lousy press release, sent to a list of people the author provided. With this move some publishers want to emphasize that marketing is under their control – even though they have no knowledge of professional publishing.
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Editing Clauses.
Writers need assurance that they will be a partner in the editing process, and that their work won’t be changed in major ways without their permission.  And publishers need the right of final approval–they don’t want to be forced to publish a manuscript that the author can’t or won’t revise to their satisfaction.
Usually the editor at the publishing house will provide revision suggestions and the author will carry them out. For copy editing, the publisher usually has discretion. But the author should have the opportunity to see and approve the copy edited manuscript before it goes to press.

Clauses like this: “publisher shall have the right to edit and revise the manuscript for any and all uses contemplated under this agreement” disregards the authors copyright, and allows the publisher to edit the author’s work without consulting or even informing him or her.“ “The publisher shall be entitled to develop, alter, edit, and proof the content, usage, format, capitalization, punctuation, and spelling of the Work to conform to the Publisher’s style, the subject matter, and intended audience previously agreed upon by the parties of this Agreement.” It means the same as above, but in more nebulous terms.

“Publisher shall have the right to correct errors, and/or edit and revise the Work for any and all uses contemplated under this agreement, provided that the meaning of the Work is not materially altered.” Which means, the publisher is not required to consult you or get your permission before making those changes. These type of clauses regarding the editing give all the power over the manuscript to the publisher.
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Bestselling Author Kristine Rusch: “Anyone who reads my blog regularly understands that I believe these “standard” book contracts are horrible.  No writer should sign some of the clauses in these contracts, and no writer should ever consider licensing rights under many of these terms.”

I wrote an entire book three years ago about contract terms writers should avoid.  Unfortunately, the book needs updating—not because the terms I mentioned are gone now, but because even WORSE ones have joined them.”

“I believe writers should understand what they sign, and walk away from bad contracts.  Simply knowing that publishers will negotiate many of these points will help writers in standing up for themselves—without agents, who often make the problem worse, generally speaking.”

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Get Legal Tips from Professionals.
Bestselling author and self-publishing advocate J.A. Konrath wrote: “The trade publishing system is designed to take advantage of Authors’ naivete and lack of bargaining power, and it uses the promise of publication as a carrot to get them to accept onerous, deeply biased terms.”

Best advice for any author is to know what they get into, to understand the publishing contract and to consult a contract lawyer before signing the papers. As Copylaw.com advices: “While it is difficult to see how your publishing agreement will play out in the long term, the decisions you make today could have profound, long term consequences.”
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The author “Law in Plain English for Writers
Lawyer Leonard DuBoff, was teaching intellectual property law for twenty-five years, and writes really simple and easy to understand.

The Fine Print of Self-Publishing
by Mark Levine does not only provide sound advice, but also lists publishers and Vanity Publishers that authors must avoid under all circumstances.

Helen Sedwick, a Californian attorney and novelist, shows in the chapter “Understanding Key Contract Provisions” of her Legal Handbook the clauses of publishers and explains on the other side of the page what these provisions mean for the author.
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If you are still eager to sign a contract, you should at least know what you get into, and what the contract clauses really mean.  Try to negotiate.  Ask the publisher to add a clause, to ensure that your consent is required for changes – less the editing.

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