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Five chances to reset the terms of your book contract (Part 1)

If you published the first edition of your textbook ten or more years ago, you may find yourself occasionally muttering to yourself, “I wish I knew then what I know now.”

Why is that?

Historically, the publishers start the book contract negotiation game with all the cards…backs to you. You have one card…it’s face up. And it tells everybody, “I’m new at this but I’m excited. Just tell me where to sign.”

Publishers have generally been the gatekeeper to a published book. While this may be less true now, with self-publishing and Open Educational Resources (OER), the publishers still have the most established distribution channels self-publishers cannot begin to match. Even the smallest of publishers does many deals each year…and the largest may do thousands of deals a year. The publishers have generally been doing these deals for a long time. They have experience in and data about the market, with which they are in regular contact. They know what their competitors are doing. As employees move from publisher to publisher, information moves with them. They have confidence (some might say arrogance).

In the face of this, the first-time author has exactly noting, including no confidence. The result is that as often as not. That first time author signs whatever is put in front of them, just happy that a publisher will give them the time of day.

Then, years later, you’ve spoken to other authors, you’ve joined TAA, you’ve acquired more experience, more wisdom, and maybe some self-confidence . . . and you join the chorus, “I wish I knew then what I know now.”

All is not lost. There are at least five events that can open the door to re-negotiation of your book contract. Some of these doors, the publisher might even inadvertently open for you, never expecting that you might turn the tables on them.

And still, there are a lot of authors out there who allow themselves to drift along, believing their publisher to be their benevolent benefactor, looking out for the author’s best interests. Don’t get me wrong – I’m not saying all publishers are malevolent. But they are for the most part rational, as the economists would say.

So, what are these five events I mentioned:

  1. Your publisher calls for work to begin on a new edition and sends an amendment to your contract to memorialize this . . . with a few additional “updates.”
  2. Your publisher says that it is replacing older contracts with a new form that reflects changes in its business practices dictated by changing markets.
  3. You’re ready to scale back your participation and begin the transition to a new co-author.
  4. You’ve completed an audit of your royalty account and are in the process of negotiating settlement of your underpayment claims.
  5. Your termination right under US copyright law matures.

We’ll examine the first two of these in this article. The rest follows in Part Two of this article series.

Revision for a New Edition

In all great likelihood, the contract you have anticipates that your book will need to be periodically revised. The contract will say that the publisher decides when this should be done; that you will have the first option to do it; and that it will be done pursuant to the terms of your existing contract, as though the new edition were the work being published for the first time. Your contract will also anticipate that you may be unable or unwilling to participate in the revision and it will say what happens in that event.

Publishers will memorialize the call for a new edition in a variety of ways. Some will do this by letter, some will do it by a contract amendment, and some will propose an entirely new contract. However the publisher decides to handle this, the document should provide only for a due date for the revision manuscript and perhaps a description, in more or less detail, of what is expected in the revision manuscript (sometimes this revision plan is left to be determined later). Advances, grants, and publisher commitments to cover third party permissions fees and other charges are typically expressly limited to one edition only. Any other changes in any other provision require your written consent, which you are not obligated to provide. You already have a contract, and it is binding on both parties – you and the publisher. You can just say, “No!” as Nancy Reagan advised in the 80’s, albeit about something else.

The “Updated” Contract

Your publisher may, from time-to-time, casually suggest that it is updating all of its author contracts and present you with the new form, with little to no mention of what has been “updated.” But just as we say above, you already have a contract, and it is binding on both parties – you and the publisher. Neither one of you has the legal ability to force any change on the other. It does not matter if the market has changed. It does not matter if the publisher’s business practices have changed. It does not matter if your current publisher acquired your contracts/copyrights in an acquisition from another publisher and now wants to move you to its own form of contract. It does not matter if your book is no longer “profitable” on the current terms (and though they may claim this, they will almost never show you the numbers).

Unless you consent to something else, the publisher has only two options:

  • Publish the new edition on your existing terms
  • Decline to publish a new edition

The only reason your publisher might choose the second option is if in fact a new edition would lose money for them (in which case you probably won’t care because it’s also not making much for you).

The Bottom Line

If your publisher is using one of these tactics to push out an “update,” either by amendment for a revision or as a new form with more current provisions, you can bet that they are doing it for one reason – because the new terms are better for them than the old terms. In isolation, there is nothing wrong with this. Parties often amend their existing agreements by mutual assent. The problem here is that publishers generally will not be candid with you about what has changed or why and they generally will not tell you that you have a choice.

But now you know. And now you are in a position to do something they won’t expect, which is to ask for something in return. More on this in Part Two.

Stephen E. GillenSteve Gillen worked for nearly 20 years in publishing prior to entering private practice in the middle 1990’s. He is presently Of Counsel 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 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 book covers

Steve is the author or co-author of three TAA-published books: Writing and Developing Your Textbook: A Comprehensive Guide; Guide to Rights Clearance and Permissions in Scholarly, Educational and Trade Publishing; and Guide to Textbook Publishing Contracts.