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.
Which part of the contract confuses you the most? Which part do you care the most about?
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Great post, Janet. Very informative. I would like to add two suggestions –
1) Never sign anything you don’t understand. If a part of the contract is unclear, make sure that you have it explained accurately, in language that you can digest.
2) Never make the assumption that a part of the contract won’t be enforced.Lawyers are professionally humourless, and when retained by a publisher that has suddenly become an adversary, they will not hesitate to make your life absolutely miserable. That’s part of their job; if you can be intimidated before going to court (which is always unpredictable for everyone) they will have done their employer the highest good.
* I find that I’m not very bothered by the contract process; I’ve seen a LOT of contracts, and do know enough to let a professional handle the details (including explaining it to me).
* I suppose the most important part would be options on future work; the question of when such could be submitted, and how long the publisher could take to review (or sit on) the thing would be of paramount concern.
Good points, Andrew. Thanks for your input.
I’ve worked with several attorneys in healthcare settings. I swore that one was paid by the word. He would take a simple logical sentence and transform it into a paragraph overflowing with big words and complicated phrases. I ached to to take my editing pencil to his work.
Kudos to you and your colleagues, Janet, for working as well with contractual words as you do with the words of your authors. That is a special talent. Thank you.
I used to think that Shakespeare got it right in TMOV, but now…I do have sympathy. In a sense, they are paid by the word, considering that their prime directive is to anticipate darn near everything, and reduce their clients’ exposure to an acceptable level.
* As disclosure, I should say that I gained that sympathy from dating a lawyer (long before I met Barbara). She took the time to tell me about her life and work, and the moral compromises that were sometimes demanded, in assuming that people were, by nature, going to do everything they could to defraud the client. She didn’t believe that, but had to work as if it were true (and she did leave the litigatory side of the profession because she could no longer bear maintaining such a jaundiced view of humanity).
That may be so, but it works both ways as Portia proved. Both parties are capable of doing the other in. Having a powerful lawyer only seeing an agreement from their client’s perspective is disingenuous. Professionalism demands that whoever holds the right to draft the contract does so equitably and with integrity. It must be even handed. Just because there is a risk that the client might do the firm in, is no reason for the firm to seek way to do the client in. I actually wish the industry was better regulated, by mutual treaty, to avoid that kind of subjectivity opportunism.
I used to have a sign in my office, “If it can be misunderstood, it will be misunderstood.” I agree with you as to the lawyer’s purpose, Andrew, but I hold fast to the goal to use the fewest and simplest words to make that happen.
I approach a contract by assuming the worst case scenario WILL occur. It helps me to work to vigorously defend my client as I negotiate.
I don’t have much by way of comment, just thanks for the inputs.
You’re welcome.
Janet, Thanks for a very helpful post. I’d written and edited a number of textbooks before getting into this “writing game,” so I figured the contracts here would be no problem. Wrong! You’ve covered a lot, and I (and probably other authors) have learned much of this the hard way.
I especially would warn about the simple question, “Are all of the books you’re creating under this contract accounted for as a unit or separately.” It makes a huge difference when you’re talking about subsequent royalties.
As always, thanks for sharing your wisdom, gleaned by experience.
Richard, please explain and elaborate on your statement “accounted for as a unit or separately” and what it means in relationship to royalties. Thank you. Norma
Norma, by way of a simple example of what Richard is writing about, if you have a two-book contract, and the books are accounted together, the first book could have earned out its advance and is bringing in royalties. But the if the second book’s advance hasn’t earned out, the first book’s royalties will be applied to the second’s advance. You could have received royalties if the books weren’t accounted together.
Any time you’re dealing with a 25-page legal document, the implications of all those sentences are tremendous.
I love that when an un-agented writer is offered a contract, agents are willing to step in and help. That is encouraging and comforting. And seems a win-win for writer and agent. How do publishers respond to this? Do they ever pressure the writer to hurry and sign (threaten to take away the offer), not wanting to wait for the writer to acquire an agent … thinking it might cost them more? Or are most publishers okay with it? Maybe they expect it. 🙂
I wondered that, too, Shelli…
Most publishers are happy to have an agent brought into the relationship when a contract has been offered. Yes, the agent will negotiate to improve the offer, but the agent also will not need the contract explained to him or her and might well have an agency template at the publishing house. The time and energy saved by the publishing house staff in dealing with a pro vs. a nervous writer, is worth it. Plus, if the author writes more books, the publishing house will work with the agent on those offers.
One thing you shared that surprised me (though it probably shouldn’t have) was that different publishers would present contracts that differed in tone. Family tone vs the very cover-every-detail-and-then-some tone.
As for what confuses me, I probably won’t know until (thinking optimistically) I have a contract to look over. What you explained today makes lots of sense.
As for what’s important to me? I think I’m with Andrew. The Option section could prove to be crucial. If a publisher and I are working well together, I think I would be thrilled if they want first shot at the next Work. However, if there is stress in the relationship (I could see this happening for a number of reasons), I might be looking for a way to find the freedom to pursue another publisher (with my future-agent’s input).
Jeane, the conditions of the option also can make it hard for you to know if there even will be another offer from the current publisher. Publishers sometimes want to extend a decision about your next book as far into the future as possible. It gives them more time to see how your first book sells. But that’s not good for the author because you’re trying to build momentum. And you want to start on your next book. The publisher’s and the author’s interests don’t always mesh when it comes to deciding about whether to produce the next book together.
And this is another reason why I am thankful that the woman of Books and Such know exactly what they are doing, and set the bar for everyone else!
For me, fine print may as well be Greek.
You give me a sheet of music, I can chicken pluck my way through it.
I get nervous ordering flights online, because I’ve had too many mishaps when it comes to travel. Yes, the Lima, Peru airport is very nice. No, I was not going to Peru.
I am very, very thankful I have someone to read through a contract for me and advise me on what and where to sign.
But your advice NOT to sign an offer before having an agent look at it is spot on.
Thank you, Janet.
*womEn…oy…see??? I cannot even leave a comment without needing help!
😉
It’s all about knowing your limitations, isn’t it, Jennifer?
This post could not be more timely for me, as just last week I signed a publishing contract for my debut novel. When I saw the topic of your post this morning I was almost afraid to open it, lest I find out I made some grave error, but now I feel very reassured. No matter how much trust a writer places in an agent (and I have a great one!) or a particular publishing house, the writer needs to be informed and on top of things, too. I hate “legalese” almost as much as I hate math 🙂 but I’m glad I slogged through it.
Jenny, I’m so excited for you! Having read some of your work, I can say with confidence that we are all in for a treat when your book releases. 🙂
Jenny, congratulations on signing for your debut novel! That’s awesome. And then you read and understood the contract after your agent negotiated it!? Double awesome.
Congrats, Jenny! That’s so exciting!
Good post. I have a few questions.
1. If I receive an offer, how long do I have to find an agent?
2. Does the agent still get the usual 15% if I’ve already done the “legwork?”
3. Does the situation change if the publisher is really small and doesn’t pay an advance, in which case an attorney is likely to charge more than I’d get out of the book?
Great questions, Jessi.
1. Most publishers give you a couple of weeks to find an agent. Maybe up to a month. After that, they start to get squirrely.
2. Most agents do apply the usual 15%. You could ask about reducing that to 10% for this contract since you found the publisher on your own. It depends on how badly you want the agent and how badly the agent wants you.
3. If the publisher doesn’t pay an advance, or only a small advance, you definitely could be in negative numbers by the time an attorney looked over the contract. In that case, I’d suggest you join the Author’s Guild (you have to pay a membership fee, but it’s small compared to an attorney’s fees) and ask one of its attorneys to guide you through the contract.
Thank you for the information!
Thank you so much, Janet. This is very informative. I think audio rights seem very daunting, since I would not know how to properly utilize them if the publisher didn’t.
You can read the book aloud yourself to make MP3 files of each chapter and then self-market or use for publicity. “Read by the author” is something Frank Peretti has done in abridged version for some of his works.
Janet, Am I correct that the author could do that legally if audio rights are not surrendered in the contract?
Carol, the author could do anything she wanted with the audio rights, if she retained them.
Thank you, Janet, for this excellent primer on book contracts. Despite Contract Law being my favorite class in law school, I appreciate your admonition to have an agent. Just like there are specializations in medicine, there are specializations in law.
How would you recommend that we contact that agent we’ve been admiring from afar? Do we use the general email for submissions? Do you have any suggestions for what to include in the body of the email? Thank you so much. I always learn from Books & Such.
Meghan, yes, you could write to the submissions email, if you don’t have the agent’s personal email address. I would put something like this in the subject line: Have publishing offer. Need agent.
I am so appreciative for everything you do on behalf of your authors. I can’t wait to go through my first contract experience with you! The FB picture will just be a bonus 🙂
I’m with you on that, Angela. What a day of rejoicing that will be!
Legal documents are all about defining the conditions of a business relationship in such a way as to avoid future conflict through misunderstanding. Mercy and grace are never the object, and lawyers, even Christian ones, understand that. Precision is a necessary characteristic, and precision often requires complexity and length. I have several patents and have been intimately associated with many more. A patent is essentially the same as a property deed that gives the holder the right to exclude someone else from using the patented idea without permission (like putting a fence around your land). The whole point of such a legal document is to very precisely define what is and is not allowed. Under US patent law, the patent agent/attorney who writes the patent application can actually define a word (in writing in the patent document) to mean exactly what she/he wants even if it contradicts some common usages. I don’t think that is the case in contract law, but an attorney who doesn’t regularly work with a particular type of contract might fail to understand the implications of a particular term of the contract and thereby fail to protect the author’s interest properly. To sign a contract without careful analysis of exactly what is being promised or refused to each party is very risky. Even if the person with whom you sign the contract is totally trustworthy and filled with Christian good will, their heirs or successors in a company might not be.
Carol, thank you for your clear and even-handed description of why a contract exists. It truly does define the working relationship. It answers the questions, What are we working on together? What responsibilities and payments do we each agree to? What happens if one–or both–of us fails to fulfill our part? What conditions will bring an end to this agreement?
Most certainly we can’t agree to a part of the contract that would have a profoundly negative impact on us if the contract goes to a successor who doesn’t operate in the same principled and compassionate way the company that has offered you the contract operates with.
Great post, Janet. Thank you for summarizing the points and why they’re important. I’m afraid many debut authors, myself included, would be so grateful for the opportunity to be published that they’d sign anything. But I’m in it for the long haul and I want to sign with an eye toward the future and what else I can write and accomplish with terms that are agreeable to all.
Carrie, it’s not just thinking about a long-term career but also about the life of your current manuscript. You want to give it every chance to be successful for both the publisher and the author. The contract can help to insure that.
Yes, good points to remember. Thanks!
Thank you, Janet, for a terrific informative post! I’ve always wondered about authors without agents being offered a contract and what kind of an attorney one would need if no agent were forthcoming!
This is a keeper!! Thanks again!! ( I know I have too many !!, but I am really very, very happy to have this info!!)
I’m so glad!!!!
LOL
Such an informative post! This process is so scary to many of us who anticipate eventually signing a contract. A good article to print out, study, and have on hand. Do you anticipate the way contracts are done to change much in the future?
Jan, I think publishers will work to restrict authors’ ability to self-publish or indie publish, as more and more authors want to produce both traditional and indie published books. Some authors don’t understand how sensitive the timing of book releases can be and cannibalize their own book sales by not carefully controlling when titles release. Publishers end up with fewer sales when this happens, and they will figure out a way to build a fence around authors’ various publishing ventures.
Janet,
Finishing my lawyer annual requirements recently, I chose to see and hear about Entertainment Law, specifically New Book Publishing Landscape. Interestingly about selling new books, I learned more than I knew, and I learned how little I know.
After slowly reading your article, . . . I learned how much you know! I respect your impressive details and knowledge about your business. Well done, and thank you.
Thanks so much for that affirmation, Kaye.
Janet,
Can you recommend any good publishing attorneys for a newer writer with no agency contacts?
I’m sorry, Deborah, I don’t have recommendations for attorneys. I do know you would want an intellectual properties attorney who specializes in book publishing.