During her 2018 Textbook & Academic Authoring Conference presentation, “The Anatomy of a Textbook Contract”, intellectual property attorney Brenda Ulrich walked participants through a standard textbook publishing contract clause by clause to dissect and explain what the language means, what is significant, what to look for, what is worth trying to change and what is not.
Below are key points from the presentation covering the first four contract elements: grant or transfer of rights, manuscript preparation and delivery, acceptability of manuscript/acceptance, and failure to deliver.
Grant or Transfer of Rights
Ulrich began the discussion with an example from a contract written in 1996 that stated, “This grant includes, but is not limited to, the exclusive right to print, publish and sell the Work, under the Publisher’s own name and under other imprints or trade names”. But as she noted, in 1996, “everyone could more or less agree what publish meant”, but in a more digital age of publishing, there are many variations to this clause, including the following examples, and authors need to be aware of what rights they are transferring to the publisher when signing an agreement.
“…in all derivative or ancillary work or material prepared by the Author and in any contribution of the Author to any derivative or ancillary work or material, including the exclusive rights to publish and distribute any such derivative work, materials and contribution by the Author…”
“…in all media of expression now known or later developed…”
“…including any ‘Supplementary Materials’ (as defined in Paragraph 2(a) below) and any revised editions…”
“…for the duration of the copyright and any renewals or extensions of the copyright…”
“…and to license to third parties to publish, use, or adapt the Work or derivative works or portions of the Work for sale, distribution, or other use in print or any other form.”
With these types of clauses, you may be giving away much more of your rights than you realize.
Manuscript Preparation and Delivery
The delivery date can usually be negotiated, according to Ulrich, but you should be realistic about the delivery date set in the contract. Many contracts will include wording related to paper copy submission, but this can easily be removed as most manuscripts are submitted in electronic form. When signing a work for hire agreement, Ulrich also advises to make the statement of work for which you are being paid to perform as specific as possible.
Acceptability of Manuscript/Acceptance
Some contracts are very specific about how feedback on the acceptability of a manuscript will be provided (i.e. in writing) and the time in which that acceptance will be provided by the publisher (i.e. 120 days). However, other wording, as shown below, uses phrases like “reasonable time”. Ulrich suggests substituting an actual time frame whenever possible to ensure that you and your publisher are in agreement to what is “reasonable”.
“The manuscript for the Work must be acceptable to the Publisher. Within a reasonable time after receipt of the complete manuscript, the Publisher will either accept it, or, if it is not acceptable to the Publisher, return it to the Author for correction or revision within a reasonable time specified by the Publisher. The Publisher’s acceptance of the manuscript will only be effective if such acceptance is specifically stated in writing and signed…”
When determining acceptability of a manuscript, Ulrich shared that adding the word “reasonable” to the following clause can be to your benefit as the Publisher would have to justify their reasoning for termination of a contract instead of simply making an arbitrary decision not to publish the work.
“If the Author does not make the changes requested by the Publisher within 30 days after receipt of such request, or if, notwithstanding such changes the manuscript is not, in the Publisher’s judgment, complete and satisfactory, the Publisher may terminate this Agreement…”
To maintain some control over the content revisions, Ulrich advises incorporating text like, “However, the Publisher shall not make substantial editorial changes in the manuscript prior to publication without notifying the Authors.” Even better, you may include language that requires your prior, written approval before making such changes to the manuscript.
Failure to Deliver
If the author does not deliver the manuscript on time, “the Publisher may elect to terminate the Agreement and recover from the Author any moneys paid to or on behalf of the Author in connection with the Work.” Ulrich advises to watch out for phrases in this clause like “in its editorial and marketing judgment” as the publisher may be able to terminate the contract for reasons “that have nothing to do with you or your book”.
In support of any advance having covered time that you invested in work on the manuscript, Ulrich suggests that you add language that either makes the advance non-refundable, or at least makes the recovery contingent on the receipt of an advance from another publisher.
The failure to deliver clause may also cover any supplementary materials that you agree to develop as part of the contract. In these cases, publishers often have the right “to obtain them and charge the reasonable cost against any sums due to the Author.” Ulrich reminds authors to be realistic in estimating the time necessary for developing these materials in addition to the manuscript when setting a delivery date in the contract.
Ulrich also covered additional contract components including royalties: sales & licenses, permissions, ancillary materials, index, copyright registration, publication, representations and warranties, conflicting or competing works, author copies, royalty statements & payments, revised editions/revisions, reversion/out of “print”, and miscellaneous clauses.
The complete session recording is available in TAA’s Presentations on Demand library.
Eric Schmieder is the Membership Marketing Manager for TAA. He has taught computer technology concepts to curriculum, continuing education, and corporate training students since 2001. A lifelong learner, teacher, and textbook author, Eric seeks to use technology in ways that improve results in his daily processes and in the lives of those he serves. His latest textbook, Web, Database, and Programming: A foundational approach to data-driven application development using HTML, CSS, JavaScript, jQuery, MySQL, and PHP, First Edition, is available now through Sentia Publishing.
