Reflections on negotiating a contract 3: Emotionally loaded details
This is more of my neophyte reflections on negotiating a contract. My previous post looked at the many different issues covered by a contract and the basic difficulty of handling so many issues. This post on focuses on some of the more emotionally charged clauses.
For me, part of the stress of contracts is that they force you to think about extreme cases because it’s easy to get emotionally charged while thinking about extreme issues. For example, there are clauses related to future editions and to the publisher’s rights for future editions. Future editions are an “extreme case” because they only become an issue if the book does extremely well. Most books don’t get a second edition, so the clauses are unlikely to matter at all. Nonetheless, some of the clauses asserted their right to produce a future edition without me should I decline to participate, and to stop paying me royalties in that event…well, the idea that I would lose rights to a book idea I had created is perhaps upsetting. I could have tried to negotiate changes to the clause, though I understand it to be pretty standard, so considering it sparked some stress. But, again, it really only matters if the darn thing is successful!
Or, for example, there was a clause about possible copyright infringement, which included a statement that Routledge would be able to keep all damages awarded from any copyright infringement claims they pursued. My first response was “If they win an award for profits someone made off my book, shouldn’t I get a share?” That reading is a little upsetting—as if I wasn’t getting my fair share. But, as best I understand it, legally they would only be able to sue for the damages they suffered, and if I wanted to sue for damages I suffered, that would be a separate claim. So, my unpleasant initial reaction was off-base. But beyond the legalistic clarification, there’s the question of whether that emotional energy was well spent, as this seems like a rather unlikely event. How often do textbooks get bootlegged/pirated? It’s rare, I’d guess, and only a concern for my book if it does succeed (but maybe I’m wrong and there is a big market in pirated copies of textbooks). And what kind of money would be involved in such a case? Is a book-legger going to sell enough copies that a significant sum of money is involved? My rational assessment is that this clause will have no practical application because no one will ever sell pirate copies of my book. But, because the contract raises these issues, I think about them, which sparks anxiety.
Another clause that caused needless worry was the clause regarding costs of changes to the page proofs. It’s unlikely to matter because the clause is there in case an author decides to make major changes in a manuscript at the last minute, and I have no intention to do so. There is no way that I will let the book advance to the page proof stage with an error so large that I would want major re-writing. But, despite my confidence that I won’t make large changes late in the process, the clause, which assigned such costs to me, sparked some anxiety. On this clause I did negotiate a minor change, so that the contract specified that such costs would be charged against the royalties, rather than them billing me, so I am protected against such costs if the book doesn’t sell. But again, I have no intention of making changes that would incur such costs.
None of these clauses are likely to come into play (I’d love to have the “new editions” clause matter—it would mean that my book was successful!), but they contribute to the stress of dealing with the contract.
As part of the offer, I was called upon to change the title of my book—hinting at the larger negotiation of what actually goes into the final book, which will not end with the contract. The need to change the title actually didn’t cause me much stress, but I know could cause stress in others. In my case, it wasn’t that they didn’t like my title, but they didn’t think that it would perform well in search engines. (This wasn’t strictly a contractual issue, as the contract only specified a working title, leaving room for negotiation on that point. We have since agreed upon a new title.) This wasn’t a big problem for me, but I do know at least one author who had a difficult and stressful negotiation when his publisher wanted him to change his title and he felt very strongly that he should not change it (I agreed with him—the alternative titles his publisher suggested were weak). Giving up the title I had chosen didn’t strike me as problematic, because I’m comfortable that I can find a title that I will like that will also satisfy the publisher, and I really want to take advantage of the publisher’s knowledge of sales and marketing. But not only does this appear in the contract—yet another detail to consider—it also hints at the larger process of negotiating the text as a whole and what changes the publisher will want, given what reviewers will say. But while that set of negotiations is beyond the specific contractual focus of this series of posts, it does tie into the many questions that the contract raises.
Of course, the most emotionally loaded clauses, I think, are the royalty clauses. After putting so much effort into a work, I want to be rewarded. It may not be likely that the new editions clause will matter, but I sure hope that the royalties clauses will—or at least some of the royalties clauses, because there were over a dozen clauses for different situations. The discussion of royalties is the subject of my final post in this series.
Read the first post in this series, “Reflections on negotiating a contract 1: Leverage and the power to negotiate”.
Read the second post in this series, “Reflections on negotiating a contract 2: Myriad 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.