Contract considerations when switching from contributing textbook author to lead author

Michael Lennie

Michael Lennie

Q: If an author is transitioning from a contributing author role to the role of a lead author, do they have to accept the same contract conditions/stipulations that were negotiated by the original authors?

A: Michael Lennie, Attorney and Literary Agent, Lennie Literary Agency & Author’s Attorney:

“I see at least a couple of meanings to your use of the term ‘a contributing author’, each of which results in a different answer. If you have been ‘contributing’ only to certain elements (e.g., chapter summaries, or a particular supplement to the main text), but not to the overall book, you may have entered into what is designated a “work-made-for-hire” (‘WMFH’) agreement with your publisher. A WMFH agreement requires the agreement be in writing clearly stating that it is in fact a ‘work-made-for-hire’ agreement. A WMFH agreement is quite different from an author/publisher agreement (ah, but that’s another tale).

Not knowing the facts in this case, I set out two possible scenarios to discuss issues that may arise. The first assumes you have an existing WMFH agreement, while the second assumes you are subject to an existing author/publisher agreement.

First, if your existing agreement is a WMFH agreement, you would not also be legally bound by the author/publisher agreement signed by the authors other than you. Legally you would be starting from scratch regarding an author/publisher agreement. The publisher might well want you to become a signatory to the same author/publisher agreement previously signed by the co-authors, but you are not obliged to do so. While you don’t want to overplay your hand, the fact you are not bound by the existing author/publisher agreement affords an opportunity for you to negotiate better terms.

In the second scenario, the designation ‘contributing author’ is used to mean said author is an existing ‘co-author’ (not a WMFH) and is transitioning into the lead author position, and will thereafter continue to write new editions with the remaining co-authors. In this set of assumed facts you would already be a signatory to an existing contract with the publisher, and possibly an agreement with the co-authors known as a ‘collaboration agreement’. The collaboration agreement at a minimum will set forth the respective duties of all authors and specify their respective shares of the royalty. If that split of duties and/or the royalty split is to be modified, all coauthors must sign an amendment to the collaboration agreement. This is in addition to the amendment to the author/publisher agreement.

In this instance, the existing contract with the publisher is still in force, and changes to that existing agreement will involve a contract amendment negotiated between the new lead author, the remaining co-authors and the publisher. The new lead author should consult with the remaining coauthors so all coauthors (including you) can approach the publisher with one voice. In fact, part of what you want to decide is who will be that one voice – one of the authors or a professional representative. If all authors do not decide on this ahead of time, the publisher’s representative will use a ‘divide and conquer’ approach that will result in an amendment much less favorable to the authors. At the least, in negotiating an amendment, the new lead author and the remaining co-authors will need to come to agreement as to how the royalty pie is to be divided.

The publisher’s primary concern in these negotiations to amend the author/publisher agreement is to get the next edition out at a cost that allows the project to make economic sense to the publisher. Although there can be exceptions, the publisher has a certain amount of money to spend on the authors, and does not particularly care how the authors (both present and past) agree to divide it up. The retiring author(s) are likely to have a provision in their contract that specifies the amount of their contractual royalty they will receive once they stop contributing. That amount is often 50% of their pre-retirement royalty for the first such edition in which they do not participate; 25 % of their pre-retirement royalty for the second such edition in which they do not participate; and nothing for the third and subsequent editions in which they do not participate, but they may have negotiated a higher phase out royalty percent than this.

If you know these existing terms, you can easily figure out how much royalty is available to the remaining coauthors for redistribution. For example, if the current lead author was receiving 50% of the total author royalty and each of two coauthors was receiving 25% (50% + 2x 25%=100%). Let’s assume the retiring lead author’s agreement provides that upon the lead author no longer participating in the next edition, (s)he will receive 50% of the royalty (s)he received when fully participating and in the second such edition in which the former lead author is not participating, (s)he will receive 25% of the royalty (s)he received when fully participating and nothing thereafter. Further assuming the total royalty paid by the publisher is to remain the same, the royalty freed up by the lead author’s retirement is 25% of the total royalty for the first such edition, 37 ½ % for the second such edition, and 50% of the total royalty for the third such edition and thereafter.

The remaining authors need to know what the existing contractual provisions are for the retiring author(s), and structure their amendment with the publisher such that their collective royalties increase as the retiring author’s royalty decreases.

This comment focusses only on the royalty distribution when one or more authors retire, and assumes the total royalty paid by the publisher will remain constant. The remaining authors may want to try to increase the total royalty and/or may also want to try to negotiate changes to other terms. Like all author/publisher negotiations, this should only be approached after careful planning and an evaluation of the circumstances that may afford the authors leverage.”

The above is merely an example. It is meant only to demonstrate some of the issues that are relevant to determine the legal status and negotiating position of an author under the same circumstances. This analysis assumes various facts which may or may not exist, and should not be relied upon by any individual. It is not meant as specific legal advice for any individual author. Such specific advice is dependent upon a thorough analysis of all existing agreements, facts and circumstances.

What issues have you faced when switching from a contributing textbook author role to a lead author role?