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Ten
Tips for Your Next Book Deal
By
Steve Gillen
Opinion
STEVE GILLEN
TAA Council member, 1997-1999
Frost & Jacobs
2500 PNC Center
201 East Fifth Street
Cincinnati, OH 45201-5717
(513) 651-6159
sgillen@aol.com
Gillen, a
publishing-law lawyer, has worked with authors since 1979.
"Forget
the inscribed- in-granite appearance of the Century Schoolbook
type in which the "standard contract" is cast. And prepare to
negotiate."
©1996, Stephen
E. Gillen |
If you've been published,
then you've seen it before -- a "whereas" and a "therefore" followed
by eight or more pages of pre-printed, pedantic prose offered up by
the editor as the house's "standard publishing contract." Other than
a few tiny spaces for your name, the title of your work, and the manuscript
delivery date, the bulk of it looks as though it were long ago locked
down in Century Schoolbook type.
But the truth is
that there is more to review than the spelling of your name, choice
of title, and projected completion date, and more to negotiate than
you might realize. Here are 10 tips to help you understand what is (or
ought to be) worthy of negotiation.
The first tip is
far and away the most important and least appreciated. Read it slowly
--let it sink in -- and believe it before you go on.
- ONE. You
have more leverage than you think: Editors are under ever increasing
pressure to sign new titles, meet publication dates, and deliver sales
results. For many of them, these factors have a direct bearing on
their year end compensation (a circumstance that can work to an author's
significant bargaining advantage as year end approaches). While there
are many aspiring first-time authors out there, only a relative handful
will be published. If you have attracted interest or a contract offer,
then you have already made the cut -- a reasonable list of tactfully
stated concerns and requested amendments will only reinforce the impression
that you are a competent and thorough professional. Moreover, the
editor will have invested a significant amount of time in reviewing
your proposal, perhaps getting outside reviews, preparing a proforma
profit and loss analysis, and drafting a publication plan and recommendation
for the supervisors. If you are not signed, all of this effort will
have been for naught.
- TWO. Only sell them what they intend to use: Beware of "work-for-hire"
provisions, grants of "all right, title and interest," and broadly
stated grants of electronic rights. If your publisher intends to publish
a hard cover edition for distribution in North America, then the grant
of rights should convey North American hard cover rights only. Alternate
editions can be addressed by amendment to your book contract if and
when the publisher expresses an interest in publishing them.
- THREE. Don't leave the back door standing open: It's one thing to be signed
to a publishing contract, but unfortunately (and perhaps unfairly)
quite another to actually be published. Editors come and go and markets
change. An open-ended manuscript acceptability standard can leave
you holding an unpublished manuscript. Most form contracts will require
that you deliver a completed manuscript that is acceptable to the
publisher in form and content. This arguably allows the publisher
to reject your completed work for any reason (provided it is not acting
in bad faith). You should strive for an acceptability clause that
requires only that the finished manuscript conform in coverage and
quality to the sample chapters provided with your prospectus or, alternatively,
a clause that requires the manuscript to be professionally competent
and fit for publication. You should also ask for language that obliges
the publisher to provide you with detailed editorial comments and
at least one opportunity to revise.
- FOUR. Don't promise what you can't deliver: Publishers usually require their
authors to make certain representations and warranties about the work
submitted -- that it isn't libelous, that it doesn't infringe third
party copyrights, and so on. Be careful that these representations
apply only to work as supplied by you and not to the work of other
contributors or editors. Also, we all know that every editor likes
to put his mark on a work by changing the title. Be sure that you
do not warrant that the title does not infringe trademark or other
rights (unless, of course, it is indeed your title).
Most contracts
will also require you to indemnify the publisher for any damage or
cost incurred as a result of your breach of the foregoing warranties.
It is reasonable for you to ask that such indemnification be limited
to defects as determined by a court of competent jurisdiction and
also to ask that your obligation to indemnify the publisher be capped
at the total royalties and other payments you actually receive from
the publisher's exploitation of your work.
- FIVE. Don't let the editor put words in your mouth: Contracts typically
give the publisher the right to select an editor to edit the work.
However, you can win the battle for editorial control (or at least
negotiate a peace with honor) by asking that the editor's authority
be limited to copyediting and changes reasonably necessary to conform
the manuscript to house style and further that substantive changes
not be made without your approval.
- SIX. The copyright is yours -- to have and to hold: U.S. Copyright law
vests the copyright in the human creator at the moment the work is
fixed in a tangible medium of expression -- put pen to paper and the
copyright is yours. Ask that the publisher register it in your name.
The publisher's legitimate interests are adequately protected by an
appropriate assignment of rights and you are protected by holding
all of the residual and derivative rights (not to mention having the
psychic income that comes from being the record holder of a copyright
-- as writers, we have to take our income where we find it).
- SEVEN. Don't take yourself out of the market: Watch out for the "no compete"
provisions. Publishers often ask that you not publish or assist in
publishing any other work that might compete. These restrictions are
usually very broadly drafted and open-ended in scope. As such, they
may be unenforceable as an unreasonable restraint of trade. Better,
however, to try to narrow them before you sign.
- EIGHT. A word about royalties: Royalties are the proverbial two birds in
the bush. Far better to negotiate for non-refundable advances. In
any event, know whether your royalties will be based on list price,
invoice price, or net receipts. And if they are based on the latter,
ask the publisher for its discount schedule and for some historical
averages so that you can compare apples to apples in the event you
are the happy holder of two or more contract offers.
- NINE. Don't become an indentured servant: Some publishers still routinely
include options clauses in their publishing contracts. This gives
the publisher dibs on your next manuscript. Tell them that if they
do a great job with the current one, you will certainly be back with
the next.
- TEN. Don't become trade bait: Publishers are merging, consolidating, and
selling lists. The best thing you have going for you is the support
and confidence of the editor who felt strongly enough about your manuscript
to try to sign you -- now, his interests parallel yours and his reputation
is on the line. You lose this advantage if your book is sold to another
house, so it is in your best interests to try to negotiate for the
right to approve any assignment of your book contract. A great reluctance
on the part of the publisher to agree should send you a signal about
its own feelings of security.
Odds are, you will
not prevail on all of these issues. But odds are equally as good that
you will not lose on all of them either.
In any event, you
will not get that for which you do not ask. So ask away. At the end
of the day you will have a better deal and a more informed relationship
with your publisher. But do not ask yet: Doing a little preparation
first will put you in a better position to negotiate later.
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