A lot of the contract is PA's verbatim, but there are also additions and changes. (All bolding is mine.)
1. The AUTHOR grants and assigns to the PUBLISHER during a period of TWO years from the date of the signing of this agreement by both parties thereto the exclusive right to produce, publish, sell or export, or cause to be produced, published, sold or exported, the above work in book form in any language or languages, in the United States of America, its Dependencies, and in Canada and United Kingdom; and the exclusive right to arrange for the publication of the above work in book form in all foreign countries, and/or to export copies to these territories and countries. All clauses hereafter also subject to a period of TWO years.
There's no evidence whatsoever that Black Rose is capable of exploiting foreign language rights, or licensing them to others. A small publisher shouldn't claim rights it can't use.
Also, what happens once the two years is up? If a book is successful, both author and publisher will probably want to keep the relationship going. There should be some provision for extending the contract by mutual agreement.
3. The PUBLISHER agrees to cause all copies of the said literary work to be printed as the market demands, and agrees, furthermore, to cause the copies so printed to be bound, from time to time, in sufficient quantities to supply purchasers of the said literary work therewith.
This is the PA contract verbatim. What it means: there will not be a print run. Your book will be POD, printed only as ordered. Not a big deal--many small presses use POD as a lower-cost way of making print copies available--unless you've been promised something else.
10 percent of the sales (retail) price thereof on the first 5,000 copies sold;
12.5 percent on the next 10,000 copies sold;
15 percent on all copies sold in excess of 15,000.
"Sales price" doesn't mean cover price, but rather the publisher's net income, which can be as little as 40% of list price. There's also some wishful thinking here; I'd be surprised if any of Black Rose's books have sold as many as 5,000 copies (excluding author purchases).
7. No payment shall be made to the AUTHOR on any copies of the said literary work that the PUBLISHER may distribute for advertising and/or sales promotion purposes, that may be discounted above a 55% or more discount, that may be destroyed by fire and/or water or otherwise damaged or destroyed, or that may be lost in transit or in any other manner – such damage, loss and/or destruction not being due to any negligence on the part of the PUBLISHER.
So if your book is sold at more than a 55% discount--which could happen, depending on the vendor--you will receive no payment. That's right: your royalty for such sales will be zero. I've seen contracts where authors' royalties were cut in half for discounted sales, but never one that reduced the royalty to nothing.
9. The PUBLISHER agrees to distribute, at his discretion, for purposes of publicity and/or review, promotional information pertaining to the said literary work, to publications throughout the United States and/or Canada, or elsewhere. Distribution of this promotional material shall be at the PUBLISHER'S own cost and expense and to media outlets of the PUBLISHER'S own choice. The AUTHOR agrees that excerpts of the said literary work may be included in this promotional information, and agrees, furthermore, that the PUBLISHER may, at the PUBLISHER'S election and discretion, cause to promote the said literary work, as designated, in any electronic format, and that the PUBLISHER shall have the exclusive right to distribute or cause to distribute, and to sell or cause to sell, at the PUBLISHER'S election and discretion, copies of the said literary work in any electronic or audio format. The PUBLISHER agrees to pay to the AUTHOR a royalty rate of 15%, of this agreement of the sales price of every copy in any electronic or audio format that may be sold/downloaded and for which the PUBLISHER shall receive payment in money.
This is the PA contract again. A lot wrong here. First, the fact that the publisher intends to produce an ebook edition and/or an audio edition shouldn't be buried in a clause about promotion and publicity; it should be included in the primary grant of rights clause or made part of a separate subsidiary rights clause.
Second, 15% of the "sale price" (a.k.a. the publisher's net income) is a wretched royalty for ebooks. Reputable small presses typically pay 30% or more, and even the big publishers pay 25%. Since, due to the challenges of print distribution, small presses are far more likely to be successful selling ebooks than p-books, this is of major concern.
Third..."payment in money?" What else would payment be in? Cows?
10. The PUBLISHER agrees to deliver to the AUTHOR 1 copy of the said literary work, on publication, without charge. Should the AUTHOR wish to purchase additional copies of the said literary work directly from the PUBLISHER, the PUBLISHER agrees to supply the AUTHOR with such copies at a discount of 20% from the regular retail price per copy, if the AUTHOR orders up to 49 copies at a time, and at a discount of 30% from the regular retail price per copy, if the AUTHOR orders 50 copies or more at a time. The AUTHOR may dispose of these copies in any manner, and, if re-sold, may retain all monies derived therefrom. PUBLISHER open to higher discounts on bulk orders.
One author copy is really stingy.
This clause is where Black Rose preserves some of the advantage (to it) of the self-purchase requirement that's no longer included in the contract. The author discount for anything under 50 copies is a joke, and the discount for 50 copies or more isn't too great, either. The promise of "higher discounts on bulk orders," therefore, is a strong incentive for authors to order large numbers of their own books.
14. (A) If, in the PUBLISHER'S opinion, the manuscript of the said literary work requires substantial
editing, the PUBLISHER agrees to assist with such editorial service without cost or expense to the AUTHOR at the AUTHOR'S request unless prior noted....The PUBLISHER shall not be held responsible for ANY editorial complaint, issue, or alterations after said work is published.
"Unless prior noted"--what exactly does that mean? Also, the final sentence of this clause, which absolves the publisher of any responsibility for errors, or to make changes or corrections, once the book is published, could be a problem if the formatting process creates mistakes that slip through whatever quality control system Black Rose has in place--a not uncommon occurrence with small presses.
16. The AUTHOR agrees to revise the work on request of the PUBLISHER, if the Publisher considers it necessary in the best interests of the First and/or future Editions of the work. The provision of this agreement shall apply to each revision of the work by the AUTHOR as though that revision were the work being published for the first time under this agreement, except that the manuscript of the revised work shall be delivered in final form by the AUTHOR to the PUBLISHER within a reasonable time after request for revision; further, no initial payment shall be made in connection with such revision.
This is the PA contract again. A clause like this is appropriate for nonfiction works, which may need to be updated from time to time in new editions--but not for fiction, which, once finalized, isn't usually reworked or revised. Language like this should always be struck from a fiction contract.
Another problem: potentially, the effect of this clause is to negate royalty escalations. Suppose your sales are approaching the 5,000 mark at which your royalty rates rise. The publisher could decree a new edition, which would return you to the original royalty rate and start the count all over again.
22. This agreement is entered into by both parties in good faith, with the mutual understanding that neither party has guaranteed, or is to guarantee, the sale of any specific number of copies of the said literary work, it being impossible to predict, before publication, what success any book may attain.
Weasel wording excusing the publisher in advance for poor sales. Always a warning sign.
23. The AUTHOR acknowledges that the PUBLISHER has not made any prior pledges, promises, guarantees, inducements, of whatever nature, either in writing, by word of mouth, or in any form, that are not contained in the terms of this agreement.
Has the publisher made you any verbal promises? Described the process of publication, or marketing, or anything else, in a way that differs from the wording of the contract? This clause negates all that. The contract, and only the contract, governs your relationship with Black Rose.
24. The PUBLISHER agrees to commence production of the said literary work within 6 months from the date of the signing of this agreement by both parties thereto, provided the PUBLISHER is not hindered by causes beyond its own control, or by the AUTHOR.
"Or by the Author??" At any rate, the important thing isn't when the publisher commences production, but when it puts the book on sale. Otherwise it can drag production out indefinitely, and there's nothing the author can do about it. A good contract should require the publisher to publish within a specific timeframe (say, within 12 months of delivery of a final manuscript), or else return rights.
30. The PUBLISHER agrees to accept returns of unsold books of the said literary work from local, regional, and national bookstores after six months of being placed in that specific store for distribution. This clause ensures no risk for the bookstores, providing the AUTHOR and PUBLISHER justified reason for
Where's the rest of this clause? It sounds as if bookstores' ability to make returns may be limited.
- Victoria