In this, the second of my posts on the contract and negotiation process, I consider the wide variety of issues that came up as I read my contract. Not being a lawyer, contracts always seem long and intimidating to me.
As I said in my previous post, my contract was some 13 pages long, and like most legal documents, very detailed. It was not something I would like to handle from a place of ignorance, but it was also not something that I thought required hiring a lawyer to help me.
When I wrote my last series of posts, I was waiting to hear whether a publisher would offer me a contract for my book for graduate students. The publisher—Routledge—did make an offer, marking the pleasant culmination of the 10+ month proposal process, and I could begin to look forward to publication, most likely in 2020 of my book titled Literature Review and Research Design: A Guide to Effective Research Practice. Getting the offer was a great milestone, but it didn’t put an end to the larger process of getting published. The next phase began with the question of whether to accept the offered contract and whether and how to negotiate for changes. As with my previous series of posts, I offer the reflections of a relative novice, not the advice of an expert.
College textbook authors are motivated to write for many reasons. Some write with the goal of providing the optimum textbook for their students. Others are excited to share their approach to teaching a subject, or they simply enjoy the experience of translating research into practice. And, in some cases, the primary motive is to generate income.
Regardless of their motives, every textbook author must grapple with the same question: How can I achieve the best return on the time I spend writing a textbook, and how much risk should I accept in exchange for my sweat equity? To this end, there are several considerations authors should keep in mind regarding royalties as they negotiate a publishing agreement.
In its response to a class action lawsuit filed against them in May by David Knox and Caroline Schacht, Cengage denies that its business model “tramples on” or is in any way inconsistent with its authors’ rights and believes that the new Cengage Unlimited model will “increase sales and revenues (and, accordingly, royalties to authors).”
Cengage authors Knox and Schacht filed their class action lawsuit in the U.S. District Court for the Southern District of New York on May 14 against Cengage claiming the company’s emphasis on digital distribution, including its new Cengage Unlimited model and expanded digital courseware offerings, have violated their publishing agreements. The suit also claims that the company is refusing to provide information that would allow them to audit their royalty payments.
Cengage’s royalty calculation model for its new subscription service Cengage Unlimited has raised a few questions that remain unanswered, primarily, will their model account for the range of existing publishing agreements—which have a variety of different provisions for accounting for royalties?
“Here’s the key problem,” said Stephen E. Gillen, a partner with Wood, Herron & Evans. “Cengage has a wide variety of different contracts that were entered over time. Some of their longer lasting titles, those in their 10th edition and up, are the subjects of original contracts still in place that were entered 40 or more years ago. Many of their contracts were not done on Cengage forms but were acquired from other publishers, all of which have different provisions for accounting for royalties. Some of them were done before the days of bundling, custom publishing, digital publishing, and publishing through interactive/adaptive learning platforms and so do not provide expressly for those then unanticipated media or channels of distribution. But Cengage has thousands of authors and almost certainly a greater number of contracts (no author will have less than one contract, and many will have multiple contracts). It’s hard for me to imagine that they are going to have lawyers go back over every single contract to determine if and how it should be treated in the current scheme.”
Looking for inspiration and structure for your summer writing projects? Look no further. TAA’s 31st Annual Textbook & Academic Authoring Conference features veteran authors, industry professionals, and intellectual property attorneys who can provide strategies and guidance on how to move forward with your writing projects to reach your publication goals. Join us at La Fonda on the Plaza in Santa Fe, NM, June 15-16 and prepare to be inspired.
