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.
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:
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:
Textbook authors need to be alert for the possible impact on them of the practice among some U.S. textbook publishers of selling books in foreign countries using an “inter-company” transfer price.
U.S.-based publishers generally sell into overseas markets through relationships with foreign publishers based in the destination country. Books sold in this way are sold to the foreign publisher at a discounted price to compensate the foreign publisher for its role in the distribution process. In such a case, the author’s royalty is calculated on the lesser amount received by the U.S. publisher from that sale.
Collaborating with a co-author on producing a textbook can have many benefits, said Steve Gillen, an attorney with Wood Herron & Evans. “It can diffuse the burden of a large project; allow you to draw on each other’s strengths; create a broader appeal for the work; and give you access to a sounding board for ideas,” he said. “On the other hand, the most bitter troubles and disputes occur between co-authors. Of all disputes, those between collaborators are the worst–they almost never have a happy ending.”
One source of trouble is in the way the Copyright Act deals with co-authorship, said Gillen. “The default positions stated in the Copyright Act with regard to co-authorship are often not those that you would provide yourself,” he said. They include:
Q: “What happens to textbooks in inventory or those under contract when publishers sell lists to other publishers? How can we find out whether books have been stolen or put into the hands of resellers?”
A: Stephen E. Gillen, Attorney, Wood Herron & Evans:
“It depends upon the deal between the two publishers. Typically, the acquiring publisher buys the inventory along with the contracts. Then they sell it out or destroy it so they can produce a new printing under their imprint. It’s also possible that the acquiring publisher would have no interest in the existing inventory under the old imprint and would require, as a condition of sale, that the selling publisher destroy the inventory. Regardless of who sells the books, the author should get a royalty in accord with the terms of the publishing contract (of course, if the books are remaindered that royalty may be small or nonexistent depending upon the terms in the publishing contract). In any event, any sales should be reflected in the next royalty statement. If there is a question, ask the new and old publishers to provide an inventory reconciliation.”
