Negotiating Your Book Contract:
20 "Must" Topics to Talk About
By Brenda Warneka, J.D., C.P.A.
You have found a traditional publisher for your book, and it's time to negotiate the contract! It's a very exciting time, but don't let the excitement cause you to ignore the details involved in what is undoubtedly the single most important transaction that will take place in the life of your book.
Even if you have an agent, you need to understand the issues, so that you know what you are agreeing to when you sign on the dotted line. Otherwise, you may find out too late that there are unexpected or unfair consequences.
Each book publisher has a standard publishing contract. The extent of the modifications you can negotiate will depend upon how eager the publisher is to sign you up. Unless you are a big-name author, larger publishers may allow you only limited changes. Smaller publishers may be more willing to work with you. If the publisher will not make a change you request in the contract, you must decide if you can live with it as it is, or whether the refusal to make the change is a "deal breaker" that will cause you to walk away from the agreement.
1. GRANT OF RIGHTS
The grant of rights provision of the contract addresses the specific rights you are granting the publisher. Be leery of transferring "all rights" for the term of the copyright. The term of the copyright for works created after 1977 is the author's lifetime plus 70 years, after which the work goes into the public domain, meaning it no longer has copyright protection. Instead, think about restricting the rights, primary and secondary, that you are transferring to the original publisher, and also to limiting the geographical scope and language markets covered by the contract.
Primary book publishing rights are hardcover, trade paperback, mass market, and direct mail. The contract should specify exactly which of these rights you are transferring. In Dolch v. Garrard Publishing Company, a court case decided in 1968, Marguerite and Edward Dolch, authors of children's books marketed in hardcover bindings to schools and libraries beginning in about 1950, had transferred "the exclusive right of publication of the books" to the publisher. In 1963, with the new popularity of paperbacks, Mrs. Dolch, her husband by then deceased, wished to sign a contract with Dell Publishing Company to reprint some of the books in paperback. Although Mr. and Mrs. Dolch had apparently never thought about paperback publication when they entered into the contracts at issue, the court found that Garrard Publishing Company held the rights to paperback publication because the term "the books" meant both hardcover and paperback. The lesson from Dolch is to beware of vague language in contracts.
Secondary rights include periodical rights, first serial rights, book club rights, dramatic rights, motion picture rights, television rights, radio rights, animation, merchandising or commercial tie‑in rights, electronic rights, and video- and audiocassette rights. You should limit the secondary rights you grant to those the publisher can adequately exploit. Book club rights usually go to the hardcover book publisher, but an author normally does not grant secondary rights such as dramatic rights, motion picture, and television rights to a book publisher. Authors should retain these rights in order to contract for them independently. Secondary licensing and sub-licensing issues are beyond the scope of this article.
Other limitations may specify a geographical and language area. It is not uncommon for a publisher to ask for "first exclusive North American book rights." The British Commonwealth is the next most valuable English language market. Western Europe and Japan are major foreign markets. Publishers for these other markets will come calling if your book is a success in North America.
What about new technology? Terms such as "book form" and "electronic rights" should be carefully defined in the contract. Just a few years ago, everyone supposedly understood terms like "publish" and "all rights," but that is no longer true. The failure of older publishing agreements to contemplate electronic rights has resulted in a substantial amount of litigation. As recently as 2002, Random House and electronic-book publisher Rosetta Books were litigating the issue of whether Random House's contracts with its authors to exclusively "print, publish and sell the work in book form" included an implied right to publish and sell the e-book version. Random House sued for copyright infringement and interference with contracts after Rosetta contracted directly with certain Random House authors to publish the electronic version of their books. After the federal appellate court upheld the district court's denial of Random House's motion for a preliminary injunction to stop Rosetta from publishing and selling the e-book versions while the litigation continued, Random House apparently saw the handwriting on the wall, and the two publishing houses reached a settlement that allowed Rosetta to license and publish 51 titles held by Random House. Today, publishers are aware of the need to include rights to new technology in their publishing agreements, and you can expect their standard contracts to be as broad and far reaching as possible.
The bundle of rights that come into being when a manuscript is created are valuable assets if you become a best-selling author. You should be concerned about who has the right to capitalize on them, and for how long. Under present copyright law, rights you do not expressly grant to the publisher will be retained by you. However, if the language in the contract is vague, you could end up arguing about its meaning in a court of law, and you may not have the bank account, or the stomach, to litigate.
If your book acquires significant commercial success, the copyright law could mean you (and your heirs) and your publisher will be bound together for a long time-- your life plus 70 years. It is up to you to limit what you are selling or licensing to the fair value of the payment you are receiving.
2. DELIVERY OF MANUSCRIPT
The contract should specify when you must deliver the manuscript, and supporting materials, to the publisher and in what format. The work should be identified by a working title or, if the title is not yet decided upon, adequately described, along with its agreed-upon length and scope. If the book will have supporting materials in which you will hold the copyright, such as indexes, drawings, charts, maps, graphs, tables, and photographs, the contract should specify whether you or the publisher are responsible for preparing these. If you will be using supporting materials or long quotes or reprinted materials in which third parties hold the copyright, the contract should say who is responsible for obtaining these rights, what rights are required, and who pays for them.
If you are writing on a particularly "hot" topic, the contract may state, "Time is of the essence." Do you know what this means? Be sure you understand the legal definition of all terms used in the contract. "Time is of the essence" means you are held strictly to the deadlines stated in the contract, and you are in breach of the contract if you are late by even one day.
Contracts with a specific deadline should always include a force majeure clause that excuses failure to perform caused by unusual or unforeseeable circumstances beyond a party's control. Examples of the type of events the parties intend to be covered should be specifically listed, and typically include such things as riots, wars, fire, floods, and acts of God. Acts of God are natural disasters, such as lightning strikes, tidal waves, and earthquakes that are beyond the control of human beings, and make it impossible to perform the contract. A force majeure clause will not cover sickness or accidents that prevent you from completing the manuscript unless they are somehow tied in with the type of disaster listed, so you will need to specifically add these as acceptable excuses for failure to perform if you wish to be protected from possibly being held in breach of contract in such an event.
3. ACCEPTANCE OF MANUSCRIPT
When you deliver the manuscript to the publisher, the publisher decides whether to accept or reject it. The rejection of a manuscript as unsatisfactory has resulted in major litigation. Pay attention to whether the contract provides that the manuscript must be satisfactory in form and content, or whether the publisher can reject the work based on its sole discretion or judgment. "Form" refers to how the various elements of a piece of writing are composed or put together, and "content" is, of course, the substantive or meaningful part of the work. A deficiency in form and content is one that the author may have some power to remedy.
A number of well-known legal cases, including one in 1982, arising out of Harcourt Brace Jovanovich's rejection of a manuscript by the late Senator Barry Goldwater, indicate that there is an implied obligation for the publisher to provide editing assistance, if necessary for the author to perform the contract satisfactorily. Harcourt failed to provide editorial assistance to Goldwater and his ghostwriter even though they requested it. Goldwater's book, With No Apologies, became a best-seller when subsequently published by William Morrow & Company, and Harcourt sued to get its $65,000 advance back. The court allowed Goldwater to keep the advance on the basis that Harcourt did not act in good faith in rejecting the manuscript. The court concluded just the opposite in a 1985 case involving Doubleday & Company's contract with actor Tony Curtis to write a novel, entitled Starstruck. Here, the court said the publisher had acted in good faith because the actor had refused "renderings of assistance" for a manuscript which one editor at Doubleday called "junk, pure and simple." Doubleday won a judgment against Curtis for the $50,000 advance it had paid him. The novel was never published.
To be safe, ask the publisher to agree (1) not to cancel the contract except for good cause, and (2) to provide you with editorial assistance and an opportunity to remedy any deficient performance before a determination of dissatisfaction is made. What constitutes "good cause" varies from case to case, depending upon the facts. In 2002, West Publishing Company rejected California attorney Rafael Chodos's manuscript on a highly-specialized legal topic because West had decided the book would not be profitable. The court held this was not "good cause" for the rejection. If you are an established writer, you may be able to add a standard for acceptability, such as that the book is of at least equal quality to your last book, and even specify the editor who will be assigned to work on the book with you.
Be sure there is a realistic deadline by which time the publisher must give you notice that your manuscript has been either accepted or rejected. If it is rejected, try to get the publisher to agree that advances already paid to you will be repayable only from the proceeds you receive when, and if, the book is sold to another publisher.
4. BOOK TITLE AND JACKET
Normally, the publisher will have the right to name your book and to determine the design of the book jacket, but you can bargain for the right to be consulted or to have the right of approval. Approval and ownership of the title may be a critical issue if the book arises out of, or is based on, your existing brand or business. An example of a book based on an existing brand or business is Weight Watchers ™ New Complete Cookbook.
5. AUTHOR'S REPRESENTATIONS AND WARRANTIES
You will be required to make certain representations and warranties with regard to your book, such as:
6. INDEMNIFICATION OF THE PUBLISHER
Expect that you will be required to indemnify, and hold the publisher harmless, against claims or breaches of contract related to the representations and warranties you give. These may extend even beyond the termination of the contract. You should pay attention to what happens if you are accused of infringing someone else's copyright. Does your publisher have the right to withhold your royalties until things are sorted out? If so, should the royalties be held in an interest-bearing account? If charges of infringement or libel are a serious possibility, perhaps you should ask to be added as an insured party to your publisher's "media perils" insurance, or think about purchasing your own. Media perils insurance protects publishers and writers against such claims as copyright and trademark infringement, invasion of privacy, and defamation, and may also provide assistance with paying the attorney's fees involved. If you are sued, do you have the right to approve any settlement by the publisher? Is there a dollar amount limitation? Many such claims are frivolous, and will be thrown out at the trial court level. Be sure the full indemnity does not apply unless the judgment is finally sustained against you. A "judgment finally sustained" is one decided after all appeals. This is scary stuff. If you have an agent or attorney, discuss with them how best to protect yourself.
7. EDITING THE MANUSCRIPT
Some writers guard every word in their manuscript as if the manuscript were a newborn child. Others are less concerned. The right of the publisher to edit your manuscript should be spelled out, so there are no surprises later on when you do not recognize your own writing in your own book. It may, however, be a choice of allowing the editing as determined by the publisher, or not being published.
8. PUBLICATION OF THE BOOK
Be sure the contract specifies a deadline for publication of the book after acceptance of the manuscript by the publisher. If publication will take longer than a year, ask why. You should be entitled to terminate the contract if the book is not published on a timely basis, and the exact steps to do this should be specified. The contract may allow the publisher to terminate the contract any time prior to, or even after, publication for legal reasons, e.g., a threat of a copyright infringement suit, or a complaint of defamation or invasion of privacy.
In May, 2005, San Francisco socialite Dede Wilsey reportedly threatened Penguin Press with legal action for comments made about her in an about-to-be-published memoir by her stepson, Sean Wilsey, entitled Oh the Glory of It All. Sean Wilsey stood by his work, and Penguin published the book shortly thereafter. As far as is known at the time of this writing, Mrs. Wilsey has not sued.
About this same time, wealthy benefactor Lily Safra and her lawyers alleged that the recently published Empress Bianca by Lady Colin Campbell was a thinly disguised version of Lily Safra’s life. The British publisher, Arcadia, withdrew the book from the market, and "pulped" its stock of inventory, much to the author’s dismay.
If your publisher fails to publish your book pursuant to your contract, you should be allowed to keep your advance, unless this occurs under circumstances in which you are legally culpable. You may have a legal cause of action against the publisher for wrongful failure to publish, but it may also be fruitless for you to pursue because it is difficult, perhaps impossible, for a judge or jury to determine legal damages. In such a case, you need to consult with an attorney to determine what to do.
9. PROMOTING AND MARKETING THE BOOK
The publisher has an implied duty to use reasonable efforts to promote your book, but you should try to get as many specifics as possible about what the publisher is willing to do included in the contract. You will want to know if there is a limit on how many review copies the publisher will send out at no cost to you, and whether copyright permission fees and travel costs must come out of your advance. Well-known authors may be able to get the publisher to commit to the size of the first print run, and the amount of the budget for the initial promotion of the book. Ask what the publisher has done for its other authors. Remember that prior oral promises or representations are superseded by the written contract, and are not enforceable.
If you are not already familiar with the publisher’s market, you should ask for details. One author I know was thrilled when she sold her children's book to a publishing house that specialized in marketing to schools and libraries. However, the market turned out not to be as large as she had anticipated, and she later found out the publisher did not have salespeople working retail stores, both of which she believes greatly impacted her sales.
The contract should provide that the publisher will register a copyright of the book in the name of the author in the United States, and in such foreign countries as the publisher deems advisable, within the statutory period. Your ownership of the copyright is, of course, subject to the grant of rights in the beginning of the contract. If the copyright is to be in the publisher's name, you should ask why. A copyright originally registered in the publisher's name will require a transfer of ownership at the U.S. Copyright Office to get it registered in your name, which can be problematic if the publisher goes out of business.
In next week's continuation of this article, Brenda Warneka shares ten more key issues writers need to keep in the forefront of their minds when negotiating contracts.
Brenda Warneka, J.D., C.P.A., and an attorney for more than 25 years, is a partner in the law firm of Cox Warneka Redmon in Scottsdale, Arizona, and is also a certified public accountant. She writes on legal and other topics. Warneka is a member of the Arizona Press Women. She is co-editor and a contributor to the nonfiction anthology The Simple Touch of Fate: Real People; Real Stories, featured at www.thefatesite.com.
This article does not constitute legal advice, and is not intended as a substitute for legal advice. It provides only general information under United States law, some of which may vary from state to state, about topics that may involve very complex legal issues. The information given here may not be applicable in all situations, and readers should seek legal advice from an attorney based on specific fact situations.
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