Don't sign away your rights when signing a
book contract

The publisher wants everything and most authors will give the publisher everything, said Michael Lennie, an authoring attorney and agent with Lennie Literary & Authors' Attorneys.

In a traditional book contract, he said, there is a clause called "Transfer of Rights" in which the publisher asks the author to sign away all his or her rights, including derivative works and ancillaries, as a whole. But, said Lennie: "Authors have what is referred to as a 'bundle of rights.' Each right can be separated and given to the publisher individually."

Authors have leverage when negotiating a book contract, he said: "You have 100 percent of the rights. The publisher only has what you give them. It is within the authors' discretion which of these rights, such as derivative rights, performance rights, etc., they will assign to the publisher via the contract." Lennie, and lawyer Lilly Ghahremani, share some of the key items to negotiate in a contract:

• Delivery Date and Deliverables. The contract states that the "Author agrees to prepare and deliver to the Publisher on or before (as specific date) or such later date as the Publisher in its sole discretion...." Said Ghahremani: "Publisher's sole discretion is a hauntingly subjective standard." "Strike this clause from the contract," said Lennie.
• Permissions. In a traditional publishing contract, the publisher puts the burden on the author to gain permission to include copyrighted work in their book at their own expense. Lennie advises putting the job of seeking permissions and paying for them on the publisher. The author should only have to supply a list of needed permissions.
• Acceptability of Manuscript. "The contract refers to a vague and subjective standard that is troubling," Ghahremani said. "Without an objective standard, this provision is dangerous. An author can feasibly be coaxed into lengthy revisions and yet no obligation to publish arises."
• Ancillary Materials. "The list of ancillary items the publisher requires the author to produce could be neverending, depending on the subject matter," said Ghahremani. "Ancillary materials cost authors time and effort and should not be overlooked. Authors should clearly understand the materials they are responsible to turn in and the standards they will be held to."
• Multiple Authors. "This provision is key in multiple authorships; each author should be responsible for upholding their end of the work, and authors will probably not want cross-liability," Ghahremani said. "As the contract stands, the publisher can go after non-guilty parties as well."
• Rights Included. The contact states that the publisher receives exclusive rights to electronic uses of the work. "Given the speed of growth of the internet, this seems to be a dangerous provision," said Ghahremani.
• Conflicting Works. "This provision is CRUCIAL to an author's career, and can have devastating consequences if simply signed off on," Ghahremani said. "Authors are successful because they specialize in an area of study, yet this clause would prohibit them from producing a work 'competitive with' the work at hand. This is a very broad prohibition as the contract language stands."
• Competing Works. "Again, this is a BROAD prohibition against an author publishing in their area of specialty," said Ghahremani. "As long as success in academia is tied to frequent publication, this provision will be important in the contract negotiations of text and academic authors."
• Publication. The contract states that the publisher will publish work "within a reasonable time after delivery to and acceptance by the Publisher." Said Ghahremani: "You can't get much broader than this! This is an appallingly vague standard. Particularly where the Publisher has an option clause in the contract, this should be addressed immediately."
• Objectionable Material. The contract states that the publisher "will have no obligation to publish as part of the Author Material any material which, in its opinion, violates any copyright, the order of any court, any right of privacy or any other right of any third party, or which in its opinion..." Said Ghahremani: "Where its outcome is virtually censorship, this subjective term is notable."
• Result of Failure to Revise. The contract states that the "Publisher will have the right, but not the obligation, in its sole discretion, to identify any reviser of the Work as an Author of the Work, or to use any individual Author's name...." Said Ghahremani: "Particularly where the Author's name may be used in connection with revised material produced by another individual, Authors will want to fully understand the ramifications of the Revision clause."
• Out of print clause. If not negotiated, he said, the publisher defines when the book is out of print: "The clause should say that the work is out of print when it no longer appears in the publisher's catalog and in sufficient quantities to supply demand," said Lennie. Lennie also cautioned textbook authors about "kit sales", in which the publisher will package an author's work with somebody else's work and the publisher's own supplements: "When the revenue comes in for that package, and the royalties have been divvied up, they publisher will drag off part of the revenue by paying itself for the supplements it included."

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Contracts & Permissions session handouts by Michael Lennie, an authoring attorney and literary agent with Lennie Literary & Authors' Attorneys
download Microsoft doc 1
download Microsoft doc 2

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