Reflections on negotiating a contract 2: Myriad details
In this, the second of my posts on the contract and negotiation process, I consider the wide variety of issues that came up as I read my contract. Not being a lawyer, contracts always seem long and intimidating to me.
As I said in my previous post, my contract was some 13 pages long, and like most legal documents, very detailed. It was not something I would like to handle from a place of ignorance, but it was also not something that I thought required hiring a lawyer to help me. Some research was needed. Because I can get overwhelmed with too much information, I didn’t scour the Internet for all possible information about the variety of industry-standard book contracts for a textbook. I did watch one TAA on demand presentation about contracts: “Anatomy of a Textbook Contract,” which was very helpful in covering many of the general issues that my contract covered. I also had my previous contract with Routledge from 2009 as a point of comparison, which was quite similar to my new contract in most of the details.
In this post, I’m going to touch on a sort of grab-bag of different clauses to give a sense of the detail involved in a contract. Perhaps all of us should have seen enough contracts, generally speaking—terms of service on websites, for example—to know that contracts are never simple. Logically, speaking, I was aware that contracts are detailed, and that Routledge’s contracts were surely overseen by lawyers, and therefore, complicated, like all contracts—for that matter, I had already signed a contract with Routledge. But still, the detail was a bit overwhelming.
Many clauses state basic details that obviously need to be stated, but such obvious things can get taken for granted. The contract naturally states who is going to sign it, along with relevant addresses for communication. The contract also includes information about the book that is under consideration—its title, content, length, scope and such. There is a clause that states when I have to deliver the book to them, and the format in which I must deliver it. There are clauses stating Routledge’s responsibilities in the process, too. The list of my responsibilities was long.
Some of the basic clauses were the outdated remnants of the era of print manuscripts that were hard to duplicate and easy to lose or damage. For example, the clause concerning my submitting the manuscript stated “the author shall retain a duplicate of the work,” and a later clause about publisher’s responsibility stated, “the Publisher is not responsible for loss or damage to the work while it is in their possession.” These are certainly wise contractual precautions in an era of typescripts—physical copies that can be destroyed—but it’s not significant in an era where the submission is in electronic form and duplication is easy. I commented on these to the editor, but neither she nor I were significantly motivated to change the boilerplate language—they certainly don’t seem to be likely to be at issue.
The clause concerning the copyright had six subsections. The first stated that I retain the copyright, then some stated Routledge’s rights and responsibilities with respect to use of the work. A couple were regarding a point of UK/EU law—about the “moral right” to assert ownership of the work, which I don’t really understand, beyond recognizing that such clauses are negotiating the difficult logical/legal terrain of intellectual property. One final copyright clause limited my ability to re-use the work.
After the copyright, there were clauses that stated my claim to be author of the work, and indemnified Routledge from damages due to problems in the text. For example, the contract assigns me responsibility that the book is not libelous or obscene or unlawful, and that it does not negligently suggest actions that will lead to harm.
There were several clauses related to royalty accounting, and to my rights to inspect their accounts. I didn’t investigate these closely—I read them, but realistically, I can’t imagine using those clauses. I’m just going to take it for granted that Routledge is going to be honest until I’m faced with strong evidence suggesting otherwise. And, in that unpleasant eventuality, I will hope that the contract will provide sufficient protection for my interests.
One interesting clause was written in strikethrough text, so that it was a part of the contract text that I could read, but would not have been an active part of the contract. That clause gave Routledge right of first refusal on my next book, obligating me to offer it to Routledge before any other publisher. The right of first refusal clause was one I specifically remembered from my previous Routledge contract. In that contract, it had been included and I had specifically asked for it to be removed because it seemed like a big restriction with respect to the book I was writing at the time (my self-published book). This time, as I said, it was written in strikethrough text, and when I asked about it, my editor told me that most authors wanted that clause removed. This time around, I’m perfectly happy to give Routledge my next proposal first. I’m not enthusiastically looking forward to a new round of book proposals for my next book, and unless problems crop up in the process of publishing this book, I would just as soon continue to work with Routledge and the editor who took a chance on me. Indeed, as a result of this line of thinking, I offered to have this contract included as an incentive for Routledge to improve other clauses in my favor—which I will discuss in later posts.
This post is already about as long as I will go, and I’ve not even talked through all the variety of clauses. The many considerations of the contract were a bit overwhelming, especially trying to figure out the ones that weren’t clear. In this post, I’ve talked about some of the easier clauses to deal with. The next two posts consider issues that were more difficult because of the emotional reaction to the stakes—these include the royalty clauses (the subject of my final post) as well as a number of other clauses dealing with uncertain possibilities, such as, for example, future editions of my book, which I discuss in the next post, “Reflections on Negotiating a Contract 3: Emotionally Loaded Details”.
Read the first post in this series, “Reflections on negotiating a contract 1: Leverage and the power to negotiate”.
Read the third post in this series, “Reflections on negotiating a contract 3: Emotionally loaded details”
Dave Harris, Ph.D., editor, writing coach, and dissertation coach, helps writers develop effective writing practices, express their ideas clearly, and finish their projects. He is author of Getting the Best of Your Dissertation (Thought Clearing, 2015) and second author with Jean-Pierre Protzen of The Universe of Design: Horst Rittel’s Theories of Design and Planning(Routledge, 2010). His book Literature Review and Research Design: A Guide to Effective Research Practice will be published in 2020 by Routledge. Dave can be found on the web at www.thoughtclearing.com
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.