If you’ve been published, then you’ve seen it before — a “whereas” and a “therefore” followed by eight or more pages of pre-printed, pedantic prose offered up by the editor as the house’s “standard publishing contract.” Other than a few tiny spaces for your name, the title of your work, and the manuscript delivery date, the bulk of it looks as though it were long ago locked down in Century Schoolbook type.
But the truth is that there is more to review than the spelling of your name, choice of title, and projected completion date, and more to negotiate than you might realize. Here are 10 tips to help you understand what is (or ought to be) worthy of negotiation.
The first tip is far and away the most important and least appreciated. Read it slowly — let it sink in — and believe it before you go on.
1) You have more leverage than you think. Editors are under ever increasing pressure to sign new titles, meet publication dates, and deliver sales results. For many of them, these factors have a direct bearing on their year end compensation (a circumstance that can work to an author’s significant bargaining advantage as year end approaches). While there are many aspiring first-time authors out there, only a relative handful will be published. If you have attracted interest or a contract offer, then you have already made the cut — a reasonable list of tactfully stated concerns and requested amendments will only reinforce the impression that you are a competent and thorough professional. Moreover, the editor will have invested a significant amount of time in reviewing your proposal, perhaps getting outside reviews, preparing a proforma profit and loss analysis, and drafting a publication plan and recommendation for the supervisors. If you are not signed, all of this effort will have been for naught.
2) Only sell them what they intend to use. Beware of “work-for-hire” provisions, grants of “all right, title and interest,” and broadly stated grants of electronic rights. If your publisher intends to publish a hard cover edition for distribution in North America, then the grant of rights should convey North American hard cover rights only. Alternate editions can be addressed by amendment to your book contract if and when the publisher expresses an interest in publishing them.
3) Don’t leave the back door standing open. It’s one thing to be signed to a publishing contract, but unfortunately (and perhaps unfairly) quite another to actually be published. Editors come and go and markets change. An open-ended manuscript acceptability standard can leave you holding an unpublished manuscript. Most form contracts will require that you deliver a completed manuscript that is acceptable to the publisher in form and content. This arguably allows the publisher to reject your completed work for any reason (provided it is not acting in bad faith). You should strive for an acceptability clause that requires only that the finished manuscript conform in coverage and quality to the sample chapters provided with your prospectus or, alternatively, a clause that requires the manuscript to be professionally competent and fit for publication. You should also ask for language that obliges the publisher to provide you with detailed editorial comments and at least one opportunity to revise.
4) Don’t promise what you can’t deliver. Publishers usually require their authors to make certain representations and warranties about the work submitted — that it isn’t libelous, that it doesn’t infringe third party copyrights, and so on. Be careful that these representations apply only to work as supplied by you and not to the work of other contributors or editors. Also, we all know that every editor likes to put his mark on a work by changing the title. Be sure that you do not warrant that the title does not infringe trademark or other rights (unless, of course, it is indeed your title). Most contracts will also require you to indemnify the publisher for any damage or cost incurred as a result of your breach of the foregoing warranties. It is reasonable for you to ask that such indemnification be limited to defects as determined by a court of competent jurisdiction and also to ask that your obligation to indemnify the publisher be capped at the total royalties and other payments you actually receive from the publisher’s exploitation of your work.
5) Don’t let the editor put words in your mouth. Contracts typically give the publisher the right to select an editor to edit the work. However, you can win the battle for editorial control (or at least negotiate a peace with honor) by asking that the editor’s authority be limited to copyediting and changes reasonably necessary to conform the manuscript to house style and further that substantive changes not be made without your approval.
6) The copyright is yours — to have and to hold. U.S. Copyright law vests the copyright in the human creator at the moment the work is fixed in a tangible medium of expression — put pen to paper and the copyright is yours. Ask that the publisher register it in your name. The publisher’s legitimate interests are adequately protected by an appropriate assignment of rights and you are protected by holding all of the residual and derivative rights (not to mention having the psychic income that comes from being the record holder of a copyright — as writers, we have to take our income where we find it).
7) Don’t take yourself out of the market. Watch out for the “no compete” provisions. Publishers often ask that you not publish or assist in publishing any other work that might compete. These restrictions are usually very broadly drafted and open-ended in scope. As such, they may be unenforceable as an unreasonable restraint of trade. Better, however, to try to narrow them before you sign.
8) A word about royalties. Royalties are the proverbial two birds in the bush. Far better to negotiate for non-refundable advances. In any event, know whether your royalties will be based on list price, invoice price, or net receipts. And if they are based on the latter, ask the publisher for its discount schedule and for some historical averages so that you can compare apples to apples in the event you are the happy holder of two or more contract offers.
9) Don’t become an indentured servant. Some publishers still routinely include options clauses in their publishing contracts. This gives the publisher dibs on your next manuscript. Tell them that if they do a great job with the current one, you will certainly be back with the next.
10) Don’t become trade bait. Publishers are merging, consolidating, and selling lists. The best thing you have going for you is the support and confidence of the editor who felt strongly enough about your manuscript to try to sign you — now, his interests parallel yours and his reputation is on the line. You lose this advantage if your book is sold to another house, so it is in your best interests to try to negotiate for the right to approve any assignment of your book contract. A great reluctance on the part of the publisher to agree should send you a signal about its own feelings of security.
Odds are, you will not prevail on all of these issues. But odds are equally as good that you will not lose on all of them either.
In any event, you will not get that for which you do not ask. So ask away. At the end of the day you will have a better deal and a more informed relationship with your publisher. But do not ask yet: Doing a little preparation first will put you in a better position to negotiate later.
Adapted from Guide to Textbook Publishing Contracts (Textbook & Academic Authors Association, April 2016) Buy the book for a much more detailed and complete reference tool and a bonus 20 questions to ask your editor. TAA members receive discount pricing.
Stephen E. Gillen teaches Electronic Media Law at the University of Cincinnati College Conservatory of Music. He worked for nearly 20 years in publishing prior to entering private practice in the middle 1990’s. He is presently a partner at Wood Herron & Evans (a 145-year-old Cincinnati law firm focused on intellectual property) where he concentrates his practice on publishing, media, and copyright matters. He is a long-time member of the TAA Council and a regular speaker at TAA conferences. He will present “10 Tips and 20 Questions for Your Next Book Deal” at the 2016 TAA Conference in San Antonio, TX, June 24-25.
The views and opinions expressed in this article are that of the author and do not necessarily reflect that of the Textbook & Academic Authors Association. Read more about TAA guest posts here.