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Ask the Expert: What to look for in publisher-driven ‘new’ textbook contracts

Gillen book covers
Steve Gillen has authored three books with TAA on the topics of textbook authoring, publishing, contracts, and rights clearance and permissions.

Q: I’m a published author. I signed a textbook contract with a publisher 32 years ago and the first edition of my text was published 30 years ago. It’s since been revised 9 times, all under the original contract, and is due to be revised again soon. Recently, my publisher wrote and said they wanted to sign a new contract for the new edition because the industry had changed, their business model had changed, and the old contract was no longer in step with their current practices. Should I go along with this and sign the new contract?

A: Maybe. . . but not without doing a little homework first. Your original contract almost certainly contemplated that your text, if successful, would need periodically to be revised. What it probably said about this was that “if and when” the publisher thought a revision was warranted, the publisher would call upon you to prepare it. And if you were willing and able to do that, the revision would be prepared and published under the terms of your then existing agreement as if it were the work being published for the first time. It might have gone on to say that things like advances, grants, and permissions fee responsibility would not be carried over, but would be determined edition by edition. This language is in your agreement to protect both parties’ vested interests in a work that will likely require additional investment of time, money, and other resources over the years and to assure that neither party can hold the work hostage to unilateral demands for changes to the underlying deal. You can’t change the terms without the publisher’s consent, and the converse is also true.

Understand that the publisher can propose a new contract, but they cannot force you to accept it in substitution for your existing contract. Understand also, that the publisher is not going to invest time and effort into drafting a new contract form that benefits you. The question will be not whether the new form contains provisions that are less favorable to you than the terms you have, but which ones and how bad? The only way to know is to compare your existing contract, provision-for-provision, line-for-line, against what’s being proposed. Don’t trust your publisher to do this for you.

Look particularly for changes in how the publisher will account for royalties on bundles, packages, composite works, and digital versions of your works. The proposed agreement is likely to accord the publisher very broad discretion in how it allocates proceeds across the components of these complicated products in ways that will never benefit you. Look for provisions that expressly allow the publisher to pay you based on some unspecified method of its determination on revenue generated by a digital collection of which your work is a part (think Cengage Unlimited).

Look for changes in when your book is deemed “out-of-print” and what it takes before rights may be reverted to you. Look for changes in how the publisher may treat individual authors in a multi-author work.

But most importantly, look for language that says that the grant of rights for the prior editions is being terminated and replaced with a re-grant of those rights in the proposed agreement (or, more covertly, it might be simply a replacement of grant language in the original contract with revised but substantially equivalent grant language in the proposed contract that would become retroactively effective). What you may not realize is that you, as the author of a copyrighted work, have an inalienable right under current U.S. copyright law, to revoke any grant that you made with respect to that work. In order to exercise this right, you must deliver notice to the publisher in a certain form within a 5-year window that opens 35 years after the work subject to the grant was first published. How this works, and its implications for your continuing relationship with your publisher, are too complex to explain here. Suffice to say that it is a very valuable right that the U.S. legislature felt so strongly about that they made it impossible for authors to sign this right away. That termination and re-grant language you see popping up in new contracts is an attempt to re-start the 35-year clock with every new edition, such that the exercise of this right is perpetually out of an author’s reach.

Not every proposed change will be equally bad for you. Some may have little to no effect on you. Some may be more consequential. And some may be of the Trojan horse variety last described above. You needn’t say no to everything. But make your concessions selectively and knowingly and get something of equal value back for each concession you make. That’s your right under the law.

Stephen GillenSteve Gillen worked for nearly 20 years in publishing prior to entering private practice in the middle 1990’s. He is presently a partner at Wood Herron & Evans (a 150+ year-old Cincinnati law firm focused on intellectual property) where he concentrates his practice on publishing, media, and copyright matters. Steve also teaches Electronic Media Law at the University of Cincinnati College Conservatory of Music. He is a long-time member of the TAA Council, a regular presenter at its annual conferences, and a frequent contributor to TAA publications of every sort.  Gillen has authored three books with TAA on the topics of textbook authoring, publishing, contracts, and rights clearance and permissions. Learn more