The most useful textbook & academic writing posts of the week: February 19, 2016

“Like stretching before exercise, I start my writing day with a heavy edit and rewrite of my previous day’s work. That seamlessly catapults me into today’s writing.” – Jerry Jenkins
What sorts of strategies do you use to catapult you into your day’s writing? Do you do as Jerry Jenkins does and start the day with “a heavy edit and rewrite” of the “previous day’s work”? Maybe you do as Rachel Toor suggests: “leave off at a point where it will be easy to start again.” Rachel adds: “Some writers quit a session in the middle of a sentence; it’s always easier to continue than to begin.” Various other writers suggest using bullet points at the end of a writing session that point them in the direction they want the writing to go when they next return to it. Perhaps you have a completely different method altogether. If you do, I hope you will share it in the comments below this post. Happy writing! [Read more…]

What to consider before signing your first textbook contract

The following advice came from a 2014 TAA Conference royaltiesRoundtable Discussion led by Mike Kennamer and Steven Barkan, entitled, “What I Wish I Had Known Before I Signed My First Textbook Contract”:

“Be prepared that some books don’t make money.” – Steven Barkan

“$3,000 would be a good advance for most first time textbook authors.” – Attorney Zick Rubin

“I received a grant rather than an advance for my text. A grant is better because it isn’t an advance against royalties.” – Mike Kennamer

“You don’t want snapshot quality photos in your textbook. Hire a professional or purchase professional photos.” – Mike Kennamer
[Read more…]

3 Key principles for strong academic writing

Rachael CayleyIn her academic writing blog, “Explorations of Style”, Rachael Cayley offers three key principles for strong academic writing: 1) using writing to clarify your own thinking, 2) committing to extensive revision, and 3) understanding the needs of your reader­­. As a senior lecturer at the School of Graduate Studies at the University of Toronto, Cayley teaches academic writing and speaking to graduate students. Prior to that, she was an editor at Oxford University Press in Toronto. Her years of writing experience have convinced her of the connection between writing and thinking, the essentially iterative nature of academic writing, and the valuable role that audience awareness can play in the choices we make in our academic writing. [Read more…]

5 Textbook authors share advice on coauthoring relationships

textbooksQ: “I am currently writing on my own but considering taking on a coauthor. What are some different ways that coauthors can work together?”

A: Maggie D.C. Finn, mfinn@nycc.edu:

“One simple way is to use Word in ‘Track Changes’ mode. That way drafts can be send back and forth electronically and you can quickly see where your coauthor has added or edited something.” [Read more…]

Before entering a co-authoring relationship, sign a collaboration agreement

TextbooksThe first thing you should write before entering into a co-authoring relationship is a collaboration agreement, said Stephen Gillen, an attorney with Wood, Herron & Evans, L.L.P.

“Do it before you write the manuscript, before you sign the publisher’s contract, before you write the sample chapters, before you write the outline, and before you write the proposal,” he said. “Do it first. If it’s too late to do it first, do it NOW! If you think you don’t need one, you’re wrong. By the time you realize you do, it’s probably too late.”

There are a couple of primary reasons why a collaboration agreement is needed before authors begin a co-authoring relationship, said Gillen. One of those reasons is that the default rules of U.S. Copyright Law state that a “joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole,” and “The authors of a joint work are co-owners of a copyright in the work.” What this means, he said, it that as co-owners, each author has an undivided proportionate interest in the whole work.

These default rules of U.S. Copyright Law present a few problems, said Gillen:

  • Absent a contrary agreement, all joint authors share equally in ownership — even if it is clear that their respective contributions are not equal.
  • Any joint owner may, without the consent of the other joint owners, grant a non-exclusive license in the work to third parties, but one joint owner cannot transfer ownership of the work or grant any exclusive license without the participation of all other joint owners.
  • Each joint author must account to the others and share with them the profits from any commercial exploitation of the work.

The second reason why a collaboration agreement is needed lies in the typical provisions of a publishing contract, he said, which state: “If there are multiple authors for this Agreement, all are collectively referred to as ‘Author’ and the rights, obligations, and liabilities of the Author are joint and several’: ‘The publisher may exercise any or all of its rights and remedies with respect to the authors individually or collectively’; and ‘If any author does not perform the obligations required, the Publisher shall have the right to proceed with the other author(s) without obligation to the non-performing author.”

Said Gillen: “These provisions have implications for representations and warranties; indemnification; royalties, advances, and grants; recovery of advances, grants and other charges; allocation of workload; and participation in revisions. The publishing contract protects the publisher, NOT the co-authors.”

Publishers do not have to treat co-authors equally or equitably, he said: “Publishing companies act through their editors and editors are not above favoring one author over the other. The publishing contract does nothing to prevent this and often fosters it.”

Gillen outlines the items that should go into a collaboration agreement:

  • What will each author do and when?
  • How will the work product be evaluated?
  • How will proceeds be shared?
  • Who will negotiate with the publisher?
  • How will you break a tie?
  • What is the exit strategy?

Create a collaboration agreement with your co-author

Collaborating with a co-author on producing a textbook can have many benefits, said attorney Steve Gillen. “It can diffuse the burden of a large project; allow you to draw on each other’s strengths; create a broader appeal for the work; and give you access to a sounding board for ideas,” he said. “On the other hand, the most bitter troubles and disputes occur between co-authors. Of all disputes, those between collaborators are the worst–they almost never have a happy ending.” One source of trouble is in the way the Copyright Act deals with co-authorship, said Gillen. “The default positions stated in the Copyright Act with regard to co-authorship are often not those that you would provide yourself,” he said. They include:

  • Both (or all) authors have an equal share in ownership, even if you did 90 percent of the work and your co-author did 10 percent. In the absence of a contrary, express agreement, you will share ownership and profits 50/50.
  • Each author has an undivided interest in the entire work (i.e., you don’t each own what you wrote, you each co-own the entire work) and can exploit that work on a non-exclusive basis without the permission of the co-author.
  • To the extent that the co-author does place the work, he or she has to share those profits with his or her co-author(s).

“These problems between co-authors are exacerbated by the provisions in the contract prepared by the publisher,” he said. “The publisher is not looking out for you. They are not concerned with resolving issues between co-authors and will sometimes use a conflict to their benefit.” The best way to address these potential problems, said Gillen, is to work these things out in advance with a separate collaboration agreement between co-authors.

Stephen E. Gillen is an attorney practicing in Cincinnati, Ohio, and concentrating on publishing and entertainment transactions and disputes, internet issues, advertising law, computer law, copyrights, trademarks, technology transfer, trade secrets, and related matters. 

 

Succession agreements: What to do when a coauthor transitions toward retirement

Q: “My coauthor on several different titles is transitioning toward retirement. I will soon be starting a revision without his active participation. We have a succession agreement on the royalty split in future editions, so that’s (hopefully) not an issue. However two questions have risen to top of the swirl of concerns that I have as I face this transition: 1) Is this a good opportunity to renegotiate my authoring contract? I suspect that my publisher will want to simply change the authoring designations as an addendum to the current contract. Should I insist on a new contract? Should I avoid that if they insist on a new contract?; 2) Assuming that I should renegotiate, how likely is it that I’ll be able to break them out of their boilerplate?”

A: Stephen E. Gillen, Authoring Attorney:

“Taking on 100 percent of the writing responsibility is essentially a new deal necessitating some change in the terms of the relationship (royalty share, to name but one important term). There is no magic to how this change in the relationship is memorialized. It can be by amendment or addendum or by substituting a new contract. What is important is that, however it is memorialized, you capture all of the relevant changes. [Read more…]

Royalty step-down clause: Factors and formulas

Q: “I am trying to establish a royalty step-down clause for a very successful text. I proposed the three-edition step-down of 75 percent of contractual royalty to 50 percent to 25 percent, assuming this means, for example, when I do not participate at all, I would receive 75 percent of, say, 15 percent, then 50 percent of 15 percent then 25 percent of 15 percent. Is that correct?

My publisher astounded me by saying this means 75 percent of the full royalty, contractual rate, then 50 percent of the new, reduced, rate, and 25 percent of the latter vastly reduced rate!! Doesn’t this depart from common industry practice? It is my understanding from TAA discussions and other sources that the standard step-down is 50 percent of contractual rate, then 25 percent of the same contractual rate, followed by nothing. What’s up??”

A: Zick Rubin The Law Office of Zick Rubin, Publishing / Copyright / Trademark:

“This is a very important item. Here is a formula that is sometimes proposed by authors and that is sometimes acceptable to publishers for a successful textbook: 75 percent of the royalties (i.e., the contractual rate) in the first edition in which the author does not take part, 50 percent of the royalties for the second such edition, and 25 percent of the royalties for the third and subsequent such editions. [Read more…]

Textbook succession planning: What is a reasonable royalty rate for the original author?

Q: “What is a reasonable royalty rate for an author whose name will remain on a (successful) textbook, but who wants to stop doing the revisions? What sort of language in the revisions clause can protect your heirs?”

A: Zick Rubin, The Law Office of Zick Rubin, Publishing/Copyright/Trademark:

“This is a very important item. Here is a formula that is sometimes proposed by authors and that is sometimes acceptable to publishers for a successful textbook: 75 percent of the royalties (i.e., the contractual rate) in the first edition in which the author does not take part, 50 percent of the royalties for the second such edition, and 25 percent of the royalties for the third and subsequent such editions. [Read more…]

What is a fair royalty arrangement when taking on textbook co-authors?

Q: “I would like to phase out of my textbooks and take on co-authors to keep them going. What is a fair royalty arrangement?”

A: Michael Lennie, Attorney, Lennie Literary & Author’s Attorney:

“I usually deal with this issue in the revised editions clause by negotiating a 60/30/15 percent provision. Under this provision the retiring author receives 60/30/15 percent of the full royalty for the first/second/third and thereafter edition in which he does not participate. Higher percentages are available depending on the number of prior editions and the reputation of the retiring author.”