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Negotiating
the Royalty Clause
By
Michael Lennie

MICHAEL LENNIE
Lennie Literary Agency & Author's Attorneys
2255 Avenida de la Playa
La Jolla, CA 92037
858-456-0138
858-456-1893 fax
www.lennieliterary.com
michael@lennieliterary.com
Lennie is an attorney who represents textbook authors.
"With
a little negotiating skill and fortitude, you will benefit both
yourself and other authors with a royalty clause that properly
compensates your creative efforts."
This
column is adapted from the April 1991 issue ofTAA Report.
© 1991,
Michael R. Lennie. All rights reserved.
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All standard publishing
contracts are enormously lopsided in favor of the publisher. In textbook
contracts there is no such thing as standard royalty provisions. Having
said that, a review of more than 100 TAA author contracts in my files
does reveal some common "ranges."
"Standard" ranges. The concept of "standard" royalties is less common in textbooks than
trade books -- so much so that it is almost counterproductive to state
ranges. I am concerned that young authors may put too much stock in
a so-called standard range, while more seasoned authors may find it
contrary to their experience. Accordingly, view the following as indicators
only, and don't be afraid to push for royalties appropriate to your
stature, leverage and revenue generation for your publisher -- even
outside the ranges discussed here.
Total revenues for
a team of authors working on a text for grades K-6 might range between
4 and 6 percent of net receipts. For grades 7-12 the range is 4 to 10
percent. I have seen more than one contract for secondary textbooks
with a flat 2 percent. A publisher of a basal text for grades K-8 might
pay eight authors 1 percent each. A college text has a range of 10 to
18-3/4 percent. I've seen a low of a 7 percent basic rate, with an upward
escalating scale with greater sales, and an occasional 20 to 21 percent.
A 15 percent royalty for a college text is common.
Textbook publishers
once paid royalties based on the list price. Now it is common to pay
royalties on the publisher's net receipts. Net receipts from sales of
the student edition of the work minus only returns, exchanges, discounts.
and other allowances, and excluding packing and shipping charges and
sales or excise taxes. Assuming a 20 percent common discount rate, an
18-3/4 percent royalty rate applied to net receipts is the equivalent
of 15 percent of list.
Negotiate Break
Points. If you are unable to obtain an 18-3/4 percent basic royalty
rate for your college text, bargain with the publisher for break points
(also known as a "sliding scale") that give a more generous royalty
rate as sales increase. A publisher who has recouped his costs may be
more generous in sharing the profits. By way of example, if your first
edition calculus text is expected to sell 40,000 copies, a royalty rate
structure with break points that allow the publisher to recoup his costs
more quickly may ultimately favor the author over a flat rate:
| RATES
WITH BREAK POINTS |
| First
10,000 copies x $32 x l2.5% |
$40,000 |
| Next
10,000 copies x $32 x l5% |
$48,000 |
| Thereafter
(20,000) x $32 x 18.75% |
$120,000 |
|
Total Royalties |
$208,000 |
|
| FLAT
RATE |
| 40,000
copies x $32 x 15 |
$192,000 |
|
Total Royalties |
$192,000 |
Advances. Although some people say advances are rare for el-hi publishing, don't
believe It. Negotiating a good advance is an important step in the negotiation
of any textbook contract regardless of academic level. Advances depend
on the bankability of the author based on prior publications, the anticipated
revenue, whether it is a first or subsequent edition, negotiating skill,
and fortitude.
Some people speak
of one-half to two-thirds of the anticipated royalties from first year
sales as a reasonable advance. While I consider that figure low, it
nonetheless points out the importance of knowing what your publisher
expects in the way of first-year sales. Your editor is a good source
for this information since he or she had to put together projected sales
to justify signing you to a contract.
Advances for a textbook
author are particularly important. Since a textbook author is (at least
initially) simply a moonlighting professor or school-teacher, it is
often necessary to take a sabbatical leave to accomplish the rigors
of authoring a text. At the very least, a reduced teaching load and
passing up income from summer school are often necessary. Accordingly,
negotiating an adequate advance is often a matter of economic survival.
The author who has
several books in print or in second, third and fourth editions, of course,
is not in the same economic position. Such a successful author has a
stream of income from various publications.
Whether you are
a young struggling author or an experienced and successful author, the
advance -- or an outright grant -- is what keeps the standard author-publisher
contract from being totally illusory. But for the advance clause, the
author-publisher contract requires the author to perform the entirety
of his or her part of the bargain before the publisher is in any way
obligated. The publisher need simply say that the manuscript is not
"satisfactory" and all of the author's work is for naught.
The advance clause
then becomes the equalizer, the insurer of good faith, your assurance
that the book contract is not merely a cattle call to compete against
several other authors signed by the same publisher to see who produces
the book they really want.
The advance represents
the publisher's willingness to put forth venture capital, to share in
the risk of a creative enterprise. The publisher who puts forth a substantial
advance has a stake in expediting publication and making provision for
adequate promotion.
So how much is enough?
While there is no rule of thumb, I would urge you on a first edition
to try for one-half the expected royalties from the first edition, or
in the alternative, the total of the projected first-year royalties.
Advance For Revised
Edition. Most contracts provide that the provisions concerning advances
shall not apply to future editions. There are valid arguments for a
reduced advance for revised editions, but it is not wise to allow the
publisher to eliminate advances altogether. It is true that by the time
a second edition is prepared, the author should be receiving royalties
from the first edition, and thus the starving-professor argument loses
some impact. it is also true that a second edition does not demand as
much time as the first.
However, there are
cosmetic revisions and there are substantive revisions, and the latter
can be very time intensive. It is also my experience that what ultimately
turns out to be a cosmetic revision (one with enough new razzle-dazzle
to trick adopters or committees into thinking it is substantively different)
may well have been worked up by the authors as a substantive revision.
In any event, the arguments recited above for ensuring the publisher's
commitment to the revised work by requiring a significant advance remain
just as compelling whether your text is in the first or the seventh
edition.
There are basically
two approaches you can take to ensure an adequate advance for revised
editions. The first approach simply states that in second and subsequent
editions, the author shall be paid an advance In the amount of some
certain percentage of the advance paid for the first edition. Given
the publisher's arguments of increased cash flow for the author and
reduced time commitment, 50 percent of the first edition's advances
may be fair.
The second approach
is to preserve the matter of advances as an opener to be negotiated
with each subsequent edition. The relevant clause might read:
"The provisions
of this Paragraph shall not apply to subsequent editions, if any, of
the work, and advances (and/or grants) for future editions shall be
separately negotiated between the parties."
Recoupable Advances. Advances are the author's compensation for time and risk in writing
a book. They should not be recoupable from the author except as a credit
against royalties. This should be spelled out in the agreement. To protect
both parties the clause might read:
"So long
as a complete manuscript is submitted in a good faith attempt by Author
to satisfy the prerequisites of the Agreement, advances shall not be
recoupable against Author except as a credit against royalties earned
by sale of the work."
Grants. The
author should make an effort to have a portion of the pre-publication
consideration paid in the form of a grant. A grant is consideration
in addition to royalties, whereas an advance is merely an early distribution
of anticipated royalties credited against the future royalties. Grants
can be given for any number of reasons: to cover the cost of required
travel, to pay for needed equipment or software, to compensate the author
for the development of ancillaries like photos and art, or to pay for
income lost while writing the work.
Be skeptical of
provisions that say the publisher will pay the cost of art and other
things only up to a stated quantity or sum, particularly when the number
or cost is either unknown or under the publisher's control. This is
not a grant but rather just a shifting of the burden of a portion of
production costs from publisher to author with a limit on the publisher's
portion -- and potentially no limit on the author's. Some highly successful
texts earn millions of dollars for publishers and very little for the
authors because of such clauses.
Conclusion. The contract provisions for royalties, advances and grants, perhaps
more so than other provisions in the contract, are meant to be negotiated.
Substantial advances should be negotiated both to tide the new author
through that period when no royalties are being paid, and to commit
the publisher to publication of the work. Negotiate break point or sliding
scale clauses that allow the publisher to recoup its costs at a relatively
low royalty rate, and thus give the author a larger share of the profits
once costs are recouped. With a little negotiating skill and fortitude,
you will benefit both yourself and other authors with a royalty clause
that properly compensates your creative efforts.
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