Can you claim royalties on workbook giveaways?

Q: Years ago, when we wrote our first high school textbooks and workbooks, these items were sold to the schools and we received royalties on each component. Then as publishers began giving away more and more items to secure a big adoption (or a state listing), they began giving away ancillaries. Now they even give away some student books.

At first the publishers would give away the ancillaries they themselves had produced (without authors — as ‘managed’ items for which they had paid writers a flat fee). So at one point our publisher had a “managed” workbook, which they would give away; we got royalties on our authored workbook when it was sold.

Now they are often giving away both their ‘managed’ workbook and our ‘authored – royalty-bearing – workbook. Whereas the writers for the managed workbook were paid in advance, we as authors are not ‘paid’ until the workbook is sold. As the publishers give away more and more of our authored materials, our royalties decline substantially.

Do we have any recourse? For example, if they give away our authored materials, can we claim a royalties payment or equivalent payment? Any other suggestions?

A: Paul Rosenzweig, Former President, Royalty Review Services:

“It’s hard to quantify the circumstances and quantities from your posting. I have been auditing authors’ royalties for 15 years and giveaways have been around all that time and then some years prior (in any earlier incarnation I was CFO of a publisher), so your report doesn’t appear to be a new event.

Many publishers are packaging titles in kits, where books and ancillaries are sold as a unit (with a separate ISBN for the kit), but in most cases, sales on the royalty statements are reported under each component’s original ISBN. The components are not giveaways, and the usual procedure (in the royalty department) is to allocate the revenue from the kits by the proportionate list prices of the components. It would require an audit to validate that the publisher is adhering to your contract’s terms and allocating kits properly.

If you have information that the giveaways are not kit components, you should be able to find out from your editor (or a chatty sales/marketing/promo department person) under what circumstances the giveaways are occurring. Check your contracts; most publishers’ contract boilerplate contains a provision excluding royalties on ‘copies given away for promotion.'”