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Textbook contract negotiations: Do your homework

When it comes to contract negotiations, you have to do your homework, says Steve Gillen, partner at Wood, Herron & Evans, where he concentrates his practice on publishing, media, and copyright matters.

“Negotiations are ultimately influenced by which side knows the most about the other side’s positions. The editor starts this contest with an advantage gained from experience in the market, experience doing other similar deals (undoubtedly many more than you have done), and the benefits of your perspective as reflected in your proposal. The way to get on an even footing with the editor/publisher is to learn more about the publisher’s plans for, and expectations of, your work — information that will help you evaluate your leverage and the editor’s weaknesses.

Ask about these issues in the context of negotiating a book contract and the editor will evade them, hedge, or refuse to answer. Ask about them after the editor has indicated an interest in your work but before you engage in active, contract-focused negotiations — in the context of learning more about the editor/publisher, more about their list and their business, more about the market and your potential competition — and you may catch the editor still in his or her selling mode. Ask them yourself, in person or over the phone, (rather than through your lawyer) and you are more likely to get candid responses.

Negotiations may be formal and may be best handled by your lawyer in order to preserve your relationship with your editor. But information gathering will be most effective if you do it in person. It may take some prodding, probing, wheedling, and cajoling, but the information you gather will prove valuable, so make sure you takes copious notes.

Determine what’s important to you. There is no one-size-fits-all solution. If you make your living as a professional writer, then money issues will likely be at the top of your list — advances, grants, royalties, re-use rights should be the focus of your attention. If, on the other hand, you are an academic living by the ‘publish or perish’ mantra and in search of the inner peace that tenure will bring, then the money issues may well take a back seat to ensuring that your work is actually published — on schedule and intact. If you are a professional of another sort (doctor, lawyer, accountant, consultant) and you view the book not so much as a revenue generator, but more as a promotional piece and as your professional bona fides, then your principal focus may well be on the non-compete provision and ensuring that it does not preclude you from engaging in the kind of professional writing, speaking, and consulting that does pay the bills. Keep your goals firmly in mind as you review the clauses and the better/best alternatives that follow.”

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.