Publishing contracts
The publishing contract is an agreement that defines the relationship between an author and her publisher. Publishing contracts typically contain elements that speak to territory, rights, ownership, financial issues, delivery of the manuscript, and so much more. While authors are free to negotiate their contracts themselves, because the law changes frequently and because most publishers offer certain contracts for non-agented authors, without a lawyer or an agent to represent you, you will likely have little to no bargaining power. An un-agented author will be given the worst contract. For that reason, if you have no agent, you’d be wise to hire a literary attorney aka a publishing lawyer to review your agreement and counsel you. The first step in a successful publishing relationship is understanding the publishing contract.
Elements of Publishing Contracts
- Description: Avoid a vague or ambiguous clause. Aim for a description that clearly describes what the publishing agreement is for. Here, make sure the parties are clearly defined and the book or proposed project specifically identifies our work and only the work you are offering to the publisher. If you are not paying attention, a publisher might throw into the basket any future work of any kind. If that is what you want, then that’s great. If not, beware.
- Grant of Rights and Territory: In this section, you’ll see the territorial rights you are granting to the publisher, e.g., English language worldwide, English language in U.S. and its territories, and foreign rights. The thing to be aware of is that the contract might include worldwide rights when you want to reserve those rights for yourself. Beware.
- Subsidiary Rights: These are often overlooked until it’s too late. Subsidiary rights might include electronic rights, trade paperback, mass paperback, serial rights, merchandise, television, film, and so many other rights. This is why having an experienced advocate is critical. Authors, who are also speakers, have been known to inadvertently give up a significant portion of their speaking fees to a publisher. 360 degree contracts, where a publisher gets a percentage of an author’s gross income, have become the norm. Beware.
- Manuscript Delivery: This provision sets forth the date when the manuscript must be delivered to the publisher. Don’t make the mistake some authors make. Some see this clause as a “suggestion” only. I encourage you not to. Meeting deadlines is important and it is professional. This section also defines what is deemed acceptable, the number of pages, the format, and whether time is of the essence. Take it seriously.
- Copyright Ownership: This is one of the many sections, in the publishing contract, where your intellectual property rights are triggered. It answers questions such as, who owns the copyright? For how long? Who s required to register the work with the US Copyright Office? Who owns derivative rights?
- Author Warranty: By far, this is one of the most important contract provisions in a publishing contract, and, it is one often taken for granted. Here, the author is required to attest to the veracity of any statement they make in the contract. Regardless of how small, a lie is an untruth. Authors have been known to pay dearly for their misrepresentations and prevarications. One way this comes up is when an author states the work they submit is entirely their own and that they did not violate the rights of any third party.
- Publication: The entire details of the publishing process are defined in these segments. The details include such descriptions as the right to use the author’s name, style and manner of publication, and any other details associated with publishing the book. This “right of publicity” states that no one has the right to exploit another person’s likeness, image, and/or identity without their permission. By signing a publishing agreement with this clause, you give the publisher permission to exploit your image through advertisements, displays, and promotions.
- Financial Issues: Some authors focus only on the advance and mistakenly believe it is a gift from the publisher. It is not. The advance is a loan that must be repaid out of an author’s royalties. This provision also defines the royalty an author is entitled to and when the author will receive it. This provision also discusses when and how an author has access to accounting information.
- Option: This provision sets forth how any future works will be handled and whether the publisher has first right of refusal, and if so, under what condition.
- Out of Print: Out of Print defines the authors’ rights in the event the publication goes out of print. This is an important section, as it defines out of print, and what can be done to get your rights back.
- Termination: This section spells out the terms on which both parties can terminate the publishing contract.
Francine D. Ward
Attorney-At-Law, Author, Speaker
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