Blogger: Janet Kobobel Grant
Every writer working on a book manuscript dreams of the day she can post on Facebook a photo of the Grand Moment when she signs her name to a contract. But before you pick up that pen, you should know the answers to four questions.
What does a book contract look like?
The first thing to understand about contracts is that, just like an automobile, mileage may vary. Each publishing contract is constructed for that publishing house by an attorney. And each publishing house’s “culture” will be reflected in that contract.
For example, a publishing house owned by an individual or by the founding family, will be more familiar in tone and may state in the option clause something like, “We believe you’ll find working with us such a pleasure that you’ll want to continue the publishing relationship; therefore, we see no need for an option clause that will legally bind you to show us your next project.” Other contracts, generally forged by the largest publishing houses, will have a complex option clause that specifies when you may submit your next idea, the terms of what the publisher’s offer will be, how long the publishing house has to decide if it wants to make an offer, time limits for how long you have to wait before you may submit the material to another publisher if the current publisher passes, etc.
So, too, does the number of pages vary. Some contracts are about five pages long; some are more like twenty-five.
But all of them will specify what rights the publisher is buying from the author, what the publisher’s responsibilities are, what the author’s responsibilities are, what happens if either doesn’t fulfill those obligations, what advance and/or royalties will be paid, how often royalty statements and payments will be sent, what happens if an outside party brings legal action against the publisher or author over the Work (as the book(s) are called), when and how the rights to the book will be returned to the author.
The complexity of each item covered will vary based on what the publisher’s attorney has chosen and what negative repercussions the publisher has experienced because of details not defined in the past. As one editor told me, “Every paragraph in a contract has a previous author’s initials next to it in the publisher’s mind.” In other words, when an author behaved badly toward that publisher, the publisher added material to the contract to make sure that situation could never occur again, or if it did, the author would pay for it dearly.
How much money can you expect to get?
This, too, varies. It depends on:
- How many copies the publisher’s sales staff have projected they can sell in the first year. (This is likely to be the amount of your advance.)
- What the production expenses will be.
- If you are publishing in a category that is especially hot right now.
- How many copies the publisher believes you, as the author, can sell via publicizing the book on social media, your website, your blog, at speaking engagements.
- How established you are as an author.
- What your previous sales record is. Say, for example, you self-published a book and sold 12,000 copies in a year. You will receive a better offer than, all other items being equal, an author who self-published and sold 300 copies in a year.
- If the sales team has reason to believe it can sell your book into a box store or obtain significant “special” sales such as on racks that sell books in drugstores, grocery stores, and airport bookstores.
What are some of the contract pitfalls I need to avoid?
Each contract has its own quirks that agents are aware of and have done their best to find work arounds. Agents, by the way, don’t work from the same contract template as an unrepresented writer. Each agency has been negotiating the same contract with the publisher for years. And, therefore, to save everyone time, the publisher has agreed to certain terms the agency cares most about. So why go through the paces of the agency asking for all the same terms each time, and the publisher agreeing to them?
Generally, you as the writer want to be aware of what rights the publisher is asking for (most likely all of them) and what rights the publisher is unlikely to exercise. For example, some publishing houses regularly create an audio version of a Work while other houses seldom or never do. It makes no sense to give audio rights to the second publisher–but it also makes no sense for you to withhold rights if you have no idea how you would use them yourself.
A more nuanced right is dramatic and film. Does the publisher have an active way to present these rights to established producers? If neither you nor the publisher has connections with the film industry, which party should hold those rights?
You also need to be aware of how tightly you are binding yourself to that publisher in the future. The option clause can serve as a security blanket for one author but be a strait jacket for another.
Are all of the books you’re creating under this contract accounted for as a unit or separately? Are books from future contracts tied to the books covered by this one?
What’s the best way to take care of myself in contract negotiations?
I would strongly advise you not to attempt to do the negotiations yourself. This is an important time to have a pro do the work.
It’s also a great time to acquire an agent. Agents often will sign a writer who has a contract in hand. Knowing at least one sale will occur during the relationship makes an agent very interested. And that agent will likely make more money for you in the negotiations than his commission will cost you.
But, important note here, when you receive an offer from a publisher DON’T ACCEPT IT! Instead, say, “I’m thrilled! But I’d like to have an agent step in at this point and work with you on the details of the deal. I’ll get back to you as soon as I’ve secured an agent.” Call all your writer friends to see if they would recommend you to their agent, contact the agent you’ve been admiring from afar, and let it be known you have an offer coming and need help.
If, for some reason, you can’t procure an agent fairly quickly, then find an intellectual properties attorney to look over your contract. Don’t turn to your cousin, who is a family attorney, or your current attorney, who prepared your trust for you. You want a specialist. Book contracts are their own species, and I’ve found that, when clients want me to work with their attorney, who has never seen a book contract, that I spend considerable time explaining what various paragraphs mean, why they exist, and why the publisher won’t change any of the wording. The attorney is bringing little of value to the negotiation because she doesn’t understand book contracts.
So there you have, a primer on book contracts.
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