10 Tips for your next textbook deal

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Steve Gillen

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. [Read more…]

When getting rights clearance is tough

copyright collage artWe’ve all been there. You have the perfect photo . . . verse . . . song lyrics . . . vignette . . . you name it . . . to open your book or a chapter within it. Having labored long and hard to locate just the thing, you are now certain that nothing else will do. There’s only one problem. It’s not yours and either you can’t determine who owns the rights, or you can’t figure out how to reach them, or they’re dead or out of business, or they won’t answer you. [Read more…]

Supreme Court rules in favor of plaintiff in copyright infringement case

On May 19, the US Supreme Court decided in favor of Paula Petrella in the copyright infringement case Petrella v Metro-Goldwyn-Mayer, Inc., stating that laches “cannot be invoked as a bar to Petrella’s pursuit of a claim for damages brought within…the three-year window.”

(Laches means that a legal right or claim will not be enforced if a long delay in asserting the right or claim has hurt the opposing party as a sort of “legal ambush.”)

“This Supreme Court decision resolves an issue that had been the subject of debate for decades and removes once and for all one of the defenses that had historically been raised to defeat copyright infringement claims,” said Stephen Gillen, an attorney with Wood Herron & Evans LLP. “Authors are now in a slightly better position when it comes to policing the unauthorized use of their copyrighted works.”

Read the court’s full opinion.

10 Tips for your next textbook deal

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 when negotiating a textbook contract. Here are 10 tips to help you understand what is (or ought to be) worthy of negotiation.

Consequences of not following third party photo usage restrictions

Stephen Gillen

Stephen Gillen

Q: What happens if, notwithstanding your best intentions, a 3rd party photo usage restriction escapes your notice and your lapse is detected by the photographer or stock agency?

A: Steve Gillen, lawyer and partner in the intellectual property firm of Wood Herron & Evans:

“Well, about the best you could expect is that you will be deemed in breach of your contractual commitment and held to account for what you should have paid for the uses you actually made. More likely, however, is a claim that you have made an unauthorized and infringing use of a copyrighted work outside the scope of any license you might have had. In this event, the copyright owner has some very potent strategic advantages and remedies at his/her disposal: [Read more…]

How to negotiate textbook contracts strategically

Many textbook authors, especially new authors, are intimidated high stack of booksby the idea of negotiating their contracts, but strategic and artful contract negotiation is essential to ensure that you get the best offer possible.

“It is very important to negotiate your contract, because the first offer will not be the best deal, so you’ll just be leaving money on the table if you don’t negotiate,” said Stephen Gillen, intellectual property attorney at Wood, Herron & Evans.

Michael Lennie, attorney and literary agent at Lennie Literary Agency, considers the clauses regarding royalties, competing works, and the rights to electronic versions of the work to be among the most important portions of a contract to negotiate. In addition, he suggests that authors try to negotiate the reversion clause, which is a clause that determines a date for when the rights to a book will be reverted to the author in the event that it is never published or goes out of print. [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?

Negotiating the foreign sales clause in textbook contracts

If authors are not careful when negotiating language related to foreign sales in their book contracts, they can end up earning next to nothing on international sales of their books.

Attorney Stephen Gillen said that although he cannot provide exact language authors can use to negotiate the foreign sales clause in their contracts without knowledge of the unique facts and circumstances of each case, he suggests authors use the following to start the discussion with their publisher:

“For sales outside the United States, effected through a distributor, if the distributor is an affiliate of the Publisher, then the royalty to the Author shall be calculated on the receipts of the affiliate at source. For purposes of this provision, a distributor shall be considered an affiliate if it is owned or controlled by the Publisher or if it and the Publisher are commonly owned or controlled.”

Gillen cautioned, however, that although using this language would result in royalties being calculated at the higher retail price (rather than at the deeply discounted inter-company price) it will also mean that royalties are not earned or paid until after the retail sale, which may be much later than the inter-company transaction and may not happen at all if the books do not all sell through.


Steve Gillen teaches Electronic Media Law at the University of Cincinnati College Conservatory of Music. Steve worked for nearly 20 years in publishing prior to entering private practice in the middle 1990’s. He is presently a partner at Wood, Guide to Textbook Publishing ContractsHerron & Evans (a 145-year-old Cincinnati law firm focused on intellectual property) where he concentrates his practice on publishing, media, and copyright matters. Steve is a long-time member of the TAA Council and a regular speaker at TAA conferences.

He is the author of Guide to Textbook Publishing Contracts, a step-by-step guide to the key provisions of a typical textbook contract and how to determine what’s important to you so that you can enter into the contract negotiation process better informed. Buy today. TAA members receive discount pricing.