What’s in a Publishing Contract?

Rachelle Gardner

Blogger: Rachelle Gardner

Many of you are looking forward to the day you sign your first publishing contract. But you also wonder… what the heck is in a publishing contract, anyway?

Below is a brief overview of some of the important contract clauses. This is *NOT* by any means comprehensive—contracts vary and are typically 12 to 20 pages long (single spaced). Some are more detailed than others.

I’ve put an asterisk (*) by the points I find myself negotiating most often. The agent’s job is to advocate for the author: first to make sure they are well-protected in every eventuality, and second to make sure they’re getting the best deal possible when all variables are taken into consideration. So the agent will negotiate any clauses that need it.

Here are some of the things a typical publishing contract contains:

→ Description of the work(s).

→ Provisions for registering the copyright (the publisher does this).

→ Which rights are being granted, in which territories.*

→ Amount of the advance.*

→ How the advance will be paid out, i.e. in halves, thirds or quarters, and what triggers each payment (contract signing, delivery of manuscript, publication of manuscript, etc.) Also, provision might be made for an advance bonus if certain sales goals are hit.*

→ Royalty rates broken out by editions: hardcover, trade paper, mass market paper, audio, digital audio, electronic book, special sales, book clubs, large print, overseas.*

→ When and how often the author will receive royalty checks and statements.

→ Description of licensing rights (how the proceeds are shared if the publisher sub-licenses these rights to another entity): reprints of any kind; book clubs; foreign language translations; electronic or audio reproduction; first or second serialization (excerpts appearing in periodicals before or after book publication); Braille; performance; video; motion picture; merchandising.*

→ Requirements for delivery of the manuscript. Due dates, word count, how to deliver. What happens if author doesn’t meet delivery requirements.

→ The publisher’s policy on editing and revisions.

→ Time limit from contract-date by which the publisher must publish the book; provisions for if they don’t.

→ Requirement for author to participate in publicity and promotion.

→ Requirement for author to refrain from publishing other works which would compete or infringe on the sale of the book being contracted.*

→ Whether or not the author has a right of creative consultation on matters of design and title.*

→ Number of free copies to author and agent.*

→ Author buyback discounts (price at which you can buy your book from publisher).*

→ Provisions for declaring the book “out of print” and reversion of rights to the author.*

→ Author warrants that their work doesn’t infringe on any laws or harm anybody.

→ Possible option on future works by the author.*

→ Provisions for remaindering, should it become necessary.

→ Provisions for termination of the agreement by either author or publisher.

→ What happens if the publisher goes bankrupt; what happens if the author dies.

→ Agency appointment.

→ Legal language about indemnification, jurisdiction, mediation, etc.

→ There may also be Exhibits following the main contract, including permissions forms and photo release forms.

Usually the author just wants to hear about the advance and possibly the royalty rates, but the agent pays attention to every detail. Some contracts are easy to negotiate and take a couple of days; others can take weeks. In this era of changing dynamics and changing technology, hammering out certain details can be sticky. But the most important part of the agent’s job is making sure the client gets a fair contract, so we do whatever it takes.

What’s NOT in the contract?

→ Typically the contract doesn’t include any kind of marketing commitment on the part of the publisher, unless the agent has specifically requested it, which is common in cases where there was an auction with many publishers interested, and marketing is one of the deciding factors.

→ Publication dates are never in the contract.

Hope this helps! Any thoughts or questions?

Image credit: tilo / 123RF Stock Photo

13 Responses

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  1. This is a very, very useful post, Rachelle. From personal experience, I would add this:
    * I had a standard royalty contract for “Blessed Are The Pure Of Heart” from a ‘vanity press’, Tate Publishing. Their production quality and setting up of publicity events was good; unfortunately, they rather neglected to pay royalties, and early this year ceased operations.
    * I was very fortunate to have the chance to retrieve the rights for a nominal fee; there was nothing in the contract about reversion of rights, and in any future contract I would insist upon it. (BPH will rise again, if only I have the energy and strength…doubtful now.)
    * As mentioned, I had a good experience with Tate in publicity; they set up numerous local signings (which were very successful – I was asked back for second and third events – and GREAT fun) and a local Christina radio interview. I would suggest that something like this be made a part of a contract, at author/agent request. Even these small things were great morale-builders.
    * I’m not bitter over the royalties I did not receive. I have been so blessed by friends and a supportive online community, so gifted by the realization of the many blessings in my life, a cup overflowing, that to quibble about money seems declasse.

    • Rachelle Gardner says:

      Much as we would like to see it, Andrew, there’s a reason I said there’s no marketing commitment in a contract, including the booksigning events you mentioned. Except for proven big-time authors, for which the publishers have to compete to get, they won’t contractually commit to specific marketing plans or dollars. We often require marketing plans before we sign a contract – but the marketing plan isn’t PART of the contract.

  2. Carol Ashby says:

    Fascinating! Thanks for making the list, Rachelle.
    *Requirement for author to refrain from publishing other works which would compete or infringe on the sale of the book being contracted.*
    *I understand why the publisher wants this one, but for an author who can write at least 2 novels a year, this is very restrictive, even crippling. How successful are agents in getting this one removed or at least modified?

    • Rachelle Gardner says:

      Carol, we always negotiate to remove this paragraph (not often possible) or at least change the wording so that it doesn’t harm the author. You can see that the wording specifically says the author can’t publish books that would “compete” or harm the sale of the contracted book. As a business, that makes total sense, right? Why would you pay a bunch of money to contract and publish a book, then have the author publish another book that readers might purchase instead? So as an author, if you’re going to write other books during the contracted period, plan to write books in different genres for different genres – book that don’t directly compete with your contracted books – and make sure they meet the specifications of your contract. We discuss this with authors at the time of the contract, and try to manage the wording so that it’s a win-win for author/publisher.

      • Carol Ashby says:

        How different would the genres have to be? For example, would a romantic thriller set in 1925 Colorado be considered different enough from a Roman-era romantic historical? There are also the platform and brand issues to overcome.
        How do the contracts deal with hybrid authors that have both a traditional publisher for some of their works but self-publish the others?

    • Rachelle Gardner says:

      Carol, all the specifics are handled on an author-by-author basis. It can’t be generalized – each author has a unique situation. In addition, each publisher has their own views authors who are publishing in multiple places.

  3. Just reading your summary, Rachelle, leaves me breathless. Plowing through a complete contract would require a whole day (and much coffee and chocolate). This post is proof-positive for anyone doubting the value of a good agent.

  4. Sheila King says:

    Bookmarking this. I have never before seen it spelled out so clearly. Thanks!

  5. The rare marketing commitment would sure be a blessing. 🙂 It must be thrilling to see many publishers interested. Makes me think of Shark Tank. Thank you for this inside look.

  6. This is the sort of thing that makes my head spin. It is like trying to do my own taxes. The same specialized knowledge that requires farming out my taxes each year is the sort of specialized knowledge that mandates being represented by an agent. Even if, by some miracle, I were able to secure a contract offer on my own, I would immediately turn to an agent and ask them to represent me and negotiate the terms of the contract.

  7. David Todd says:

    Rachelle: Your point on what rights being granted doesn’t say for how long those rights are granted, but I assume you intend for that to be included.
    .
    Q: Do most contracts start out “life of copyright”, and is this at all negotiable?

    • Rachelle Gardner says:

      David, this is covered under the point I included: Provisions for declaring the book “out of print” and reversion of rights to the author.
      *A few small publishers are contracting for specific lengths of time, such as five years, but this will never become the norm and no major publisher would consider it. Think of it from their perspective. They’re going to spend tens of thousands of dollars (in addition to the advance) to get this book published. They never know which of their books will be hits, and which will sell modestly. So with every single book they publish, they’re hoping for (or at least planning for the possibility of) a major bestseller. They’re hoping the book will sell like gangbusters for years and years to come. If they limited the life of the contract right from the get-go, they’d be shooting themselves in the foot. They would no longer have the possibility of a long-term bestseller. That kills the business model. The very few long-term bestsellers pay for all the mid-listers and flops. So every book must be given the opportunity to become that long-term bestseller.