Essential book publishing clauses you need to think about before signing a contract
1. Definition of “Publisher:” You may wish to define exactly what is meant in the contract by the term “publisher.” Is it the small office where your editor works, the larger corporate division, or the whole conglomerate? It may matter because you may want to deal only with one office or division. See 18. Prohibition of Assignment, below.
2. Protection of advance: that any advance paid to the author need not be repaid; or, at least, that it need not be repaid if the author has made a good faith effort to fulfill the terms of the contract. If you and the publisher go into a project in good faith, you will incur expenses, you will spend time and resources. If the project fails, why should you lose more than the publisher?
3. Acceptable Manuscript: the book will be deemed acceptable and fit for publication if it meets current industry standards for professionalism as determined by an impartial arbiter. The contract should stipulate a time by which notice of rejection must be made to you (ie, two weeks/one month/etc. after delivery); and that in the absence of such notice, the manuscript is automatically deemed to be acceptable.
4. Your name on the book: the contract must require the publisher to make your name appear in the book; on the title page at a minimum; preferably on the title page, front cover, and spine.
“This is understood,” you say. “Why bother?”
Because without having it in the contract, it doesn’t have to happen. Nothing is “understood” if it’s not in your contract.
5. Time limit to editing: You may wish to stipulate a time limit by which editing of your manuscript must be completed.
6. Right to approve title, cover, and copy editing: you may want to require the publisher to submit the title, cover (and blurbs), and proofs of the copyedited manuscript to you for approval. Many errors can creep in during editing.
7. Copyright: who receives the copyright? It should be you. If it is the publisher, the reversion clause (No. 17) is of the utmost importance.
8. Covenant that the book is published: The contract must require that the publisher undertake to publish and sell the book in a timely manner, or by a certain time. If you fulfill your responsibilities under the contract, and then the book is not published, the book cannot advance your reputation, provide royalties, or revised editions, and you lose, even if you get to keep all the money that’s due to you.
9. Payment: the contract should state in detail the amount(s) of advances, fees, and/or royalty percentage(s) which must be paid to you, how they will be calculated, and when they must be paid.
10. Deadlines for payments: the contract must require the publisher to make any required payments by a certain time, for example, that fees be paid within two weeks/one month after submission of the manuscript, and/or that royalties be paid within a certain number of days after the end of the royalty accounting period (often 90 days). Whenever the publisher is required by the contract to do anything, there must be a date (relative or absolute) by which it must be done.
11. Right to examine the publisher’s financial records: this is important if you receive royalties. This clause normally provides for payments of any expenses occasioned by the audit, and interest on underpayments. (I once found $24,000 in unpaid royalties during an audit.)
12. Provision for the sale of foreseeable subsidiary rights: periodical, database, translation, online and perhaps radio, television, syndication, etc. If the market for a certain subsidiary right is not clearly developed (ie, some electronic rights), you needn’t grant those rights or specify payment until later. It’s best to specifically reserve such rights to yourself in the contract.
13. Reservation to the author of all rights not specifically conveyed to the publisher. If this clause is not included, the publisher may (probably will) attempt to expand the scope of the rights granted whenever an opportunity to do so arises.
14. Right to approve licenses: You may want to try to get the right to approve all licenses, deals with affiliates, subsidiaries, etc. Otherwise, a large media corporation may sell a license to use your work for an unreasonably cheap price to another division of the same corporation when a sale of that license to an outside entity might yield you more money.
15. Limitations of author’s liability in case of a lawsuit: you must limit your exposure to financial loss if you and/or the publisher are sued. Suggested limitations: that the subject of litigation must be your work only (not an editor’s addition, deletion, or modification); and that your liability to the publisher and/or the publishers’ lawyers shall not exceed monies received by you under the book’s contract.
16. Right to first refusal for revisions: first editions of guidebooks are expensive to research and write; revisions offer better profits. You should have the right—but not the obligation—to do the revisions if you so choose and are able.
17. Reversion of all rights to the author: if the project is canceled at any time for any reason, or if the book goes out of print, all rights in the book must revert to you automatically, without the publisher having to “grant” them back to you.
18. Prohibition of assignment: you should include a provision prohibiting the assignment of the contract to any other entity without your prior approval, except in case of the sale of all assets of the publisher.
Unacceptable Book Contract Clauses:
– Option clause: a company should not have the right to require that they publish your next book. If they do a good job on your book, you will have the incentive to do your next book with them.
– Deductions of sums owing under other contracts: if at some point one of your books incurs a loss (say, from lots of books being returned from bookstores), the loss should not be deducted from other royalty accounts. Each project should stand on its own merits.
– Competing Publication: you should not sign a clause that prohibits you from making your living by writing similar but not identical materials.
If you grant a publisher the exclusive right to print and publish your book, the publisher is already protected from your writing an identical or nearly-identical work and having it published by another company.
Also, it is in your own self-interest to maintain a good relationship with your publisher and to support your publisher in the promotion and sale of your book.
But if you have the chance to write and sell a new book on the same topic but aimed at a different audience, you must be able to do so without legal hindrance, without worrying that the first publisher will see your new book as being “similar” (and who, exactly, is to say with certainty what “similar” means?) and thus sue you for breach of contract.
Rob Jennings
