By Sierra Pawlak

Making sure you’re getting a good textbook publishing contract can be stressful and confusing, but these ten tips from Brenda Ulrich, an intellectual property attorney at Archstone Law Group, PC, should help you feel more confident to negotiate a contract that’s right for you. Ulrich shared this advice in her 2024 Conference presentation “Top 10 Tips for Publishing Contract Negotiations.”

“No two contract negotiations are the same, no two publishers are identical, and no two authors are alike,” says Ulrich. Knowing what’s important to you dictates how your contract can be best suited to you and your needs, depending on where you are in your career, why you’re writing your book, and what your long-term plans are with your publisher. “There are a lot of things potentially at play in a contract negotiation” she says, so focusing on what’s most important to you is essential.

1. Know Your Rights

“You own the copyright in your work until or unless you assign or license it to someone else. This means that until you sign a contract that allows the publisher to publish your work, they can’t,” says Ulrich.  Therefore, “when a publisher says, ‘This is not up for negotiation’, don’t necessarily take that statement at face value.  Theoretically, any contract or amendment can be negotiated and changed – it’s just track changes,” she says. “What really matters is leverage and interests – whether they are willing to negotiate. The publisher may have set policies on some things, but others could be open for discussion. Remember that you have leverage too.”

2. Be Prepared

Gather all of the relevant background materials, such as notes and emails, from all of the discussions you’ve had with the publisher about what is supposed to be in the agreement, says Ulrich. That way, when they send you the contract, you can check to make sure that what you agreed on is actually in it, and if not, you have the reference material to show the publisher what else should be included. “If this is an update or amendment to your existing contract, make sure you have the original signed contract and all the signed amendments to it. Those are all part of your contract; the new amendment is just adding on to that,” says Ulrich. She also recommends you ask your publisher for copies if you’re missing any of them. Ulrich says this process can take a while, so starting to pull together the relevant materials early on can help move things along. “Another way to be prepared is to educate yourself,” says Ulrich. “TAA is a great resource for that. Know what is typically in a publishing contract so you are familiar with the terminology.”

3. Be Patient

Ulrich remarked that this tip can be hard for a lot of authors, but being patient is important in the contract negotiation process. “There is often a false sense of urgency, where you get a contract, and they say ‘Okay, you sign here, and we can get going’”, says Ulrich. “You should say ‘Hold on, I need to review the contract.’” You might have a few questions, need to talk to your lawyer, or need more time to look at the contract. She says a reputable publisher won’t pressure you to sign before you’re ready, and if they do, that could be a red flag.

4. The Contract was not Written for You

“The Publisher’s contract was written by the Publisher’s lawyer for the benefit of the Publisher,” says Ulrich. The contract was not written for you, but “that doesn’t mean it’s an evil document” she says. “You just have to read it understanding that it was not necessarily intended to best protect or promote your interests.” Ulrich remarked that this tip is not to make you suspicious, but to better understand where the contract is coming from.

5. Get the Contract Unlocked

“Publishers often send a locked PDF version [of the contract] so you can’t redline it, edit it, or put questions in the comments section,” says Ulrich. “This locked feature also creates the false impression that the contract is immutable.” That’s why it’s important to ask for an unlocked copy, so you can have a conversation right in the document, e.g., asking about a specific clause or section. Having the document locked makes that more difficult.

6. Ask Questions

Don’t be afraid to ask questions. “You’re about to make a major commitment of time and resources,” says Ulrich, “so don’t sign something you don’t understand.” She recommends that you ask your editor or brand manager for help, and if they don’t have the answer, they may have to go to their general counsel. “They are often told to hand this contract to the author, and they may not be as familiar with specific questions that you may have,” she says.

7. If It’s Not in the Contract, It’s Not in the Contract

Your editor may promise something in an email but say ‘that’s not something we typically put in the contract’. “An email is not an enforceable legal right,” says Ulrich. “It must be within the four corners of the contract to know for sure that you’re getting something you were promised.” Publishers may “not want to change their boilerplate contract terms too much, but you can always create an amendment to accommodate special terms” she says. “Five years down the line… the contract is all you have to protect your rights, not the emails and not the conversations.”

8. The Players May Change but the Contract Remains the Same

This tip relates to the prior one. The people involved in your contract negotiations may not be there in the future, so it’s important to have everything within the contract rather than a verbal agreement or outside correspondence. You may have had an understanding with someone at your publishing house, but if they leave and someone replaces them, that new person only has the contract to refer to. “A lot of you who’ve been in this industry for a while know there is a lot of turnover at a lot of publishing houses,” says Ulrich. “The person you’re negotiating with now may not be there when issues come up, and that’s why it’s so important to get the agreed-upon terms spelled out in the contract. The shared history you may have with your brand manager will be lost, and somebody new that doesn’t know that history and doesn’t have that relationship with you will be looking at the contract for answers.”

9. Account for Changing Technology and Products

“Often when I’m dealing with contract renegotiations or amendments, it’s because so much of the technology and the media is changing,” says Ulrich. “When I look at contracts from the 1990s, they are often just a few pages long, they’re easy to understand, the clauses are short. A modern publishing contract can be 20+ dense pages and part of the reason is that they’re trying to account for every kind of technology, media delivery method, and publishing trend that is around now or that may come into existence and that we don’t even know about yet and how these ‘known unknowns’ are going to be dealt with.” You want to think about guard rails you can try to put into your contract for the things we do and don’t know about yet.

10. Know When to Ask for Help

“If you were buying a house, you would likely hire a real estate agent and a real estate lawyer,” she says. “If you’re preparing a will, you’d hire an estate planning lawyer. I’m always amused that lawyers are the first people to hire an estate planning lawyer rather than try to prepare their own estate plan, because we are keenly aware of what we don’t know. If a publishing agreement represents a significant commitment of time and resources for you, it might be worth hiring someone to represent your interests. They have a lawyer on their side, so it might be worth it for you to have a lawyer on your side too.”

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If you’d like to listen to the full recording of Ulrich’s presentation, and you attended the 2024 TAA Conference, you can go here to watch it. If you didn’t attend the conference, you can purchase on demand access to the full library of the 2024 TAA Conference presentations here for one full year for $100.