Basics: Read This Before You Sign on the Dotted Line!
Hurrah—your book proposal or your magazine query has been
accepted, and a contract is on its way. “Great,” you say enthusiastically to
your agent or editor, even though you’re thinking, I don’t know how the heck to read a contract!
Don’t panic. Perhaps the most common misconception among
writers—especially new writers—is that contracts aren’t negotiable.
Certainly some clauses aren’t, but I bet you’ll be surprised to learn that
many are. You can’t negotiate what
doesn’t exist, though—on paper. Do oral contracts count? Maybe. When it’s
your word versus that of a publishing house (big or small), having the legality
on paper is definitely to the author’s advantage. Let’s get started.
Book contracts can certainly be daunting. All those pages,
all that legalese. Even if you have an agent and/or a lawyer (and we’ll get to
them shortly), my opinion is that it’s not a bad idea to familiarize yourself
with the basics.
Keep this question in the back of your mind: Who writes the
contract? The publisher’s lawyers. It goes without saying, then, that if the
contract is going to favor one party over another or be more advantageous to one
party, it’s not going to be you, the author.
Now about those agents and lawyers. Both are valuable, and
both probably have more experience reading contracts than you do. Is one of
these “experts” better than the other? An agent’s job involves dealings
with publishing houses every day. He or she has read and negotiated many
contracts. He or she is familiar with various publishing houses’ standard
contracts. Furthermore, it’s in an agent’s best interest to get you, as his
or her client, a good deal. (Don’t forget that he or she works on commission!)
If your contract is with a smaller publishing house and/or
you don’t have an agent, absolutely have a lawyer take a look at your
contract. Publishing law is a specialty that many lawyers choose, so look for
someone who has the expertise you’re looking for.
Now for the meat of the contract itself. Publishing experts
disagree about what the most important element/clause of the contract is. Some
say it’s the royalty rate, some the rights clauses, some the option clause,
and so on. Let’s take a look at some of these critical clauses.
Your advance is the amount of money the publisher pays you
up front. Authors get a portion (generally half) of the advance when they sign
the contract and the rest when their final manuscript is accepted. The real term
is advance against royalties. That
means you won’t see a penny in royalty money until your advance has earned
out. Publishing lawyer Jonathan Kirsch, in his books Kirsch’s Guide to the Book Contract, likens the advance to “a
prepayment of royalties.”
So which is more advantageous to an author: a large advance
or a generous royalty rate? It depends. How sure are you that your book will
earn out its advance? Many, many books—unfortunately—do not, which might
make a larger advance (read: up-front money) appealing.
Description of Work
You’ll find this clause early on in a contract, and you
could miss it if you blink. Many agents attach the initial book proposal to the
contract as an appendix. Therefore, instead of “Author shall deliver the Work
(a complete, 50,000-word manuscript on editorial jobs at book publishing
companies) on disk no later than June 1, 2002,” there’s a reference to the appendix.
The idea is to leave no room for confusion over what you’re submitting versus
what the publisher is buying.
You’ve got basic print rights, which aren’t negotiable
(after all, you do want your book in print),
as well as a slew of subsidiary rights—everything from foreign rights to book
club rights to serial rights to film rights to…you get the idea. Sub rights
are negotiable—insofar as which rights you’ll handle yourself (or your agent
will handle) as well as the income split from sub rights sales.
A quick word about electronic rights merits mention. When
many of today’s contracts were written, electronic rights basically meant that
a book would be made into a CD-ROM. Oh, how times have changed. Now there are
web sites, e-zines, on-line libraries, and so on to deal with. As Jonathan
Kirsch reminds us in Kirsch’s Guide to
the Book Contract, “Electronic rights are still too new and changing too
fast to allow for settled legal definitions.” The fact that there aren’t
standard—or settled, as Mr. Kirsch says—definitions makes this clause as
especially touchy one. Pay special attention to it to make sure you aren’t
giving away anything you don’t want to (or aren’t aware of).
Somewhere in all that single-spaced fine print is a clause
that gives the publisher the right to reject your manuscript if you don’t turn
in what the publisher wants/expects. I previously mentioned attaching your
initial proposal (or at least an outline) to your contract. This should prevent
any confusion or questions about the content you’ve delivered.
You don’t need a new contract if a revised edition of
your book is being issued. Where this clause can get sticky is regarding the
amount of revision required. Remember that when the time comes for you to make
revisions (if the time comes), you’ll have moved on to other projects. Will
you have the time—or the inclination—to devote to revising your book? It can
be a fine line between extensive revisions and a new, updated edition—for
which you’d be issued a new contract and a new advance.
Keep in mind that, as publishing lawyer Lloyd L. Rich
notes, revisions clauses for fiction books aren’t usually necessary.
Make sure you’re clear about who’s responsible for
providing (and obtaining permissions, if necessary) photographs, tables, charts,
an index, appendices, a glossary, etc. Obtaining (or commissioning) these
materials can be both time-consuming and costly. Know what you’re responsible
for before signing the contract.
If you can avoid an option and/or a right-of-refusal
clause, say the experts, do so. An option clause gives your publisher the right
to publish your next book. Brad Bunnin spells it out for writers in his book, The
Writer’s Legal Companion, when he says, “…neither the option nor the
right-of-refusal clause does you—the author—any good. They buy you nothing;
at the same time, they restrict your freedom to seek the best market for your
Let’s assume your book did great: It continues to sell
well, you landed an interview on Good
Morning America (or Reading with Ripa,
if that’s more your style), you’re still selling subsidiary rights left and
right, and so on. Now you’ve got a new book ready to submit to a publisher.
You’d be in a great bargaining position if it weren’t for that pesky option
clause that was part of your first contract. That publisher now offers you the
same terms. You’re much more marketable and bankable this time around, but
you’re stuck. The option clause has come back from the past to haunt you.
If one is better than the other, the right-of-refusal
clause is the one. The right-of-refusal clause allows your current publisher the
first look at your next manuscript. You still want to avoid it if you can, but
if it comes down to option or right-of-refusal, go with right-of-refusal.
Warranties, Representations, and Indemnities
These words are just plain scary, aren’t they? No matter
how many times you see them on paper, and no matter how many times your agent
assures you that you aren’t going to get sued (either individually or via your
publishing house), they’re still scary. As an author agreeing to this clause,
you’re basically saying to your publisher, “My book isn’t going to cause
you any legal trouble, but if it does (whether the claim is true or not), I’ll
be financially responsible for some (or all, depending on the specifics of your
contract) of the costs.”
You might be thinking, No
problem. No one could bring a claim against my book. I haven’t infringed on
anyone’s copyright and I wasn’t libelous. But what if someone does? The
clause doesn’t say a valid claim; it
just says a claim. Whether you win the lawsuit or not, you’re still
financially responsible. Surely you’re familiar with the recent publicity had
by Stephen Ambrose and Doris Kearns Goodwin, two highly public and respected
writers with regard to copyright issues.
In his book, Negotiating
a Book Contract, Mark L. Levine recommends getting the indemnification
clause to be free of the words claims
and allegations. Certainly you’re
responsible if a claim against you turns out to be true, but, Levine asserts,
“if someone merely claims that they
[your representations or warranties] are wrong, but they are not, you should not
have to reimburse the publisher; that is a risk the publisher properly takes as
a business enterprise.”
Here’s how you can at least partially protect yourself,
because you’re not going to get these clauses removed from your contract.
Publishing companies have insurance policies just like you and I do. Get
yourself listed on that policy. Interestingly, the July 15, 2002 issue of Publishers
Weekly cites that insurance companies are raising premiums and deductibles
on policies involving copyright and libel. For example, according to the
article, Random House’s deductible just went from $100,000 to $1 million.
That’s quite an increase! In turn, Random House has announced that its authors
will take a greater financial responsibility in the event of a lawsuit. Other
publishers will surely follow Random’s lead. Stay tuned.
MAGAZINE, NEWSPAPER, AND WEB CONTRACTS
The idea behind these contracts is the same as it is for
book contracts, but the contracts themselves aren’t likely to be as lengthy or
as cumbersome. Indeed, you could get a two-paragraph writer’s agreement
serving as your contract. As long as the basics are covered (deadline, payment,
and rights sold and retained), the length and format of the contract don’t
With magazines, newspapers, and work for the web, you’re
more likely to have a verbal agreement (than you are with a book deal). If you
find yourself in this situation, make sure you follow up the conversation with a
letter that outlines the terms discussed and agreed upon.
As book writers do, magazine, newspaper, and web writers
have several rights that they can sell part and parcel. These include the right
to publish in an anthology and foreign rights. Again: Be especially careful with
electronic rights. As Moira Allen cautions in “Know Your E-Rights”
(published in the August 2002 edition of The
Writer), “Watch out for a contract that asks you to grant a publication
the ‘nonexclusive right to distribute
the material electronically.’” Allen also reminds writers that electronic
rights are not necessarily included in
FNASR (first North American serial rights), according to Tasini v. The New York
Times (the milestone case for freelance writers). FNASR are what most writers
are selling to magazine markets most often.
You’ll also sign the scary warranties and indemnities
clause. The caution here is that it’s not standard practice for a magazine to
put a writer’s name onto its insurance policy, if it has one. (You’ll
remember that was the protection I recommended in the section on book
Do your darndest to negotiate a kill fee in the event that a magazine, newspaper, or web site changes its mind about publishing your article after signing an agreement with you. Once you’ve negotiated the kill fee, make sure it’s included as part of your contract.
Finally, I want to mention work-for-hire agreements
briefly. The advice is simple: Avoid them if you can. By signing a
work-for-hire, you’re handing over all
rights to the publication (whether it be a book publisher, a magazine, a
newspaper, or a web site or e-zine), including your copyright. This kind of
agreement is clearly not in favor of the author—the one who’s done all the
work to get the material written in the first place!
Navigating the maze of legalese that comes with getting a
book deal or having an article published either in print or on the web can be
tricky, but with the right tools—namely knowledge (and perhaps the assistance
of a smart agent and/or lawyer) —you’re well on your way to a successful
career as a published writer. Good luck!
Jodi is a faculty member of Absolute Editorial.
In her role as president of JBedit, she has edited and/or contributed to a number of high-profile book projects, including The Barnes & Noble Guide to Children's Books (3rd Edition), The Buzz on Beer anthology, the Frommer's Irreverent Guide travel series, The 50 Best (and Worst) Business Deals of All Time, and Copyright Plain & Simple. In addition to her editing responsibilities, she has also completed a number of writing projects on behalf of national and regional clients, including Arcadia Publishing, Inc., Amateur Chef magazine, The Newark Star-Ledger, Bride's Guide magazine, Lebhar-Friedman Books, The Pathway School, and TheOddSpot.com.
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