Earlier this fall, TAA hosted an audio conference titled “Contract Negotiation: E-books & E-rights” featuring attorney Lisa Moore, principal of The Moore Firm, LLC. Moore’s outstanding presentation culminated in a rich Q&A discussion that provided valuable insight into textbook publishing contract negotiations.
Following are abbreviated excerpts edited by TAA from the transcripts of that discussion.
Many textbook authors, especially new authors, are intimidated by the idea of negotiating their contracts, but strategic and artful contract negotiation is essential to ensure that you get the best offer possible.
“It is very important to negotiate your contract, because the first offer will not be the best deal, so you’ll just be leaving money on the table if you don’t negotiate,” said Stephen Gillen, intellectual property attorney at Wood, Herron & Evans.
All standard publishing contracts are enormously lopsided in favor of the publisher. In textbook contracts there is no such thing as standard royalty provisions. Having said that, a review of more than 100 TAA author contracts in my files does reveal some common “ranges.”
“Standard” ranges. The concept of “standard” royalties is less common in textbooks than trade books — so much so that it is almost counterproductive to state ranges. I am concerned that young authors may put too much stock in a so-called standard range, while more seasoned authors may find it contrary to their experience. Accordingly, view the following as indicators only, and don’t be afraid to push for royalties appropriate to your stature, leverage and revenue generation for your publisher — even outside the ranges discussed here.
Successful contract negotiation requires knowing “what you’re willing to give up and what you’re not,” said authoring attorney Michael Lennie, with Lennie Literary & Author’s Attorney.
Authors should negotiate better terms on several contract provisions, he said. They include:
The most important things to negotiate in a first contract are the amount of the advance, the royalty rate and who will control which rights, said Jeff Herman, owner of the Herman Literary Agency in New York.
Keep in mind when negotiating the advance how the publisher calculates it, Herman said: “It will tell you how far they’re willing to go.” To calculate how much of an advance it will offer, the publisher looks at the number of books it will sell during the first year and the dollar amount the author will receive per copy. For example, if the author will receive $2 per copy, and the publisher will sell 10,000 copies the first year, the author will earn $20,000 in royalties. That $20,000, he said, is the highest the publisher will be willing to go in negotiating the advance.
If authors are not careful when negotiating language related to foreign sales in their book contracts, they can end up earning next to nothing on international sales of their books.
Stephen Gillen, an attorney with Wood Herron & Evans, said that although he cannot provide exact language authors can use to negotiate the foreign sales clause in their contracts without knowledge of the unique facts and circumstances of each case, he suggests authors use the following to start the discussion with their publisher:
