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and is often largely dependent on business concerns.Although many clauses in book publication contractsalso appear in contracts for short-form works (suchas scholarly or magazine articles), this guide does notspecifically address these formats.While this guide may be particularly useful toauthors who do not have agents to help them interpretand negotiate their contracts, authors with agents mayfind that this guide will help them better communicatewith their agents and ultimately end up with betterresults in negotiations. Authors with agents shouldbe aware, however, that they may be restricted by theterms of their agency agreements from approachingtheir publishers directly on matters related to theircontracts, or they may prefer to have their agents speakwith publishers on their behalf.HOW WAS THIS GUIDE CREATED?This guide is the product of extensive interviewswith dozens of authors, publishers, literary agents,and copyright experts who shared their knowledgeabout publication contracts and the book business.In addition, we received more than fifty surveyresponses from authors who shared stories of negoti-About This Guide11

ation successes and contract regrets. Throughout thisguide, these real-life stories are set out in text boxeslabeled “Success Story” and “A Cautionary Tale.” Fictitious examples to reinforce key concepts are labelled“Literary Lesson.”In addition, we analyzed nearly one hundred realpublication contracts that authors shared with us forthis project. Edited clauses from these contracts appearthroughout this guide, including those you might wantto avoid and author-friendly alternatives.WHAT THIS GUIDE IS NOTThis guide provides general information about commonterms in book publication contracts and presentsstrategies for authors who wish to negotiate for moreauthor-friendly variations. It does not apply this information to any individual author’s specific situation.This guide is not legal advice, nor does using this guidecreate an attorney-client relationship. Please consultan attorney experienced in handling publicationcontracts if you are unsure how the information in thisguide applies to your particular facts or if you would likelegal advice about your rights and obligations.12Understanding and Negotiating Book Publication Contracts

Publication contracts vary by country, as docontract and copyright law. This guide has beenprepared and vetted with U.S. laws, standards, andpractices in mind. As such, the information in thisguide is most applicable to publication contracts originating in the United States.While this guide explains many common clausesfound in publication contracts, it does not cover allpossible terms you may encounter or all potentialoptions for negotiating these terms. Likewise, becauseauthors have different priorities when it comes to whatis important to them in a book deal, this guide does notprovide a one-size-fits-all model contract. Instead, theinformation in this guide is intended to help authorsunderstand a range of possible options for negotiation,which they can implement based on their personalgoals.HOW TO USE THIS GUIDEIf you want a broad overview of book publicationcontracts, you can read this guide from front to back.But if you just want to understand (and negotiate) afew specific clauses, feel free to navigate straight to therelevant section. (If you are reading this guide in print,About This Guide13

the thumb index on the back cover will quickly directyou.)If you don’t know where to start, consider this:All authors share a desire to make and keep their booksavailable to readers. For this reason, we encourageauthors to devote extra attention to clauses in theircontracts that affect the long-term availability of theirbooks. For example, the rights that you grant yourpublisher can affect your ability to use, share, or adaptyour book in the future (see Chapter 5: The Grant ofRights Clause and Chapter 6: Subsidiary Rights).And your contract may even define what you can dowith future works (see Chapter 8: Future Works).Finally, your contract can identify the conditionsunder which you may be able to regain your rights toyour book, such as if your work falls out of print (seeChapter 15: Rights Reversion).Authors and their representatives are encouraged to use this guide as a catalyst for creativethinking about what terms need to be included in acontract to meet their publishing goals and how theymight improve upon terms that their publishers have14Understanding and Negotiating Book Publication Contracts

proposed. If you come up with a solution that works foryou and might be useful to other authors, let us know—it might appear as a Success Story in a future edition ofthis guide.About This Guide15

CHAPTER 2:CONTRACT BASICS

AT IT S C OR E , A C O NTR A C T I S S I M P L Y A Nagreement between parties to determine the legalrights and obligations they have to each other. Oftenthis is in exchange for money, but it could also be in exchange for a promise to do (or not do) something in thefuture. Contracts can be as simple as a casual promisebetween friends (“If you drive me to the movies, I’ll buyyour ticket”) or as complex as a multi-national treaty.Contracts can be created in a variety of ways:orally (“Yes, let’s go to the movies”); in writing(“Here’s a cocktail napkin with an IOU for one movieticket”); or through your conduct (driving your friendto the theatre). Contracts can even be implied in certaincircumstances. Contracts can also be formed through aseries of interactions. For example, a contract could be

formed through a thread of emails. But for the purposesof this guide, the terms “contract” or “agreement”refer to a formal written publication contract. The partsof a written contract are its “terms,” “clauses,” or“provisions,” which all mean the same thing.Certain kinds of contracts, such as those thattransfer exclusive copyright rights, must be inwriting and signed by the book’s author (or herrepresentative) to be valid and enforceable. (SeeChapter 5: The Grant of Rights Clause for moreinformation on assignments and exclusive licenses).For example, if Alyssa Author wants to give PollyPublisher the exclusive right to reproduce and distribute her work, she needs to do so explicitly in asigned, written document.Likewise, contracts that cannot be performedwithin one year must be in writing and signed. Forexample, if Polly Publisher agrees to publish AlyssaAuthor’s book eighteen months after delivery of anaccepted manuscript, their agreement has to be inwriting and signed to be binding.18Understanding and Negotiating Book Publication Contracts

A best practice in negotiating book contracts is to makesure everything the parties agree to is written down,and that everyone signs the document reflecting thisagreement. This provides a record of the agreed-uponterms and helps ensure that everyone understands thesubstance of the agreement.AREN’T ALL PUBLICATIONCONTRACTS THE SAME?There is no such thing as a “standard” contract thatis applicable to all types of publishers and all books.A publisher’s willingness and ability to accommodateyour preferred terms will be influenced by its businessmodel. And while there are certainly core terms you’relikely to find in most publication contracts, how theseprovisions are organized and the language used todescribe them will differ, sometimes significantly.If you haven’t done so already, it is a good idea toset aside time to research potential publishers for yourproject before you (or your agent) start shopping yourbook so you can determine if your publishing needs arealigned with a particular publisher’s business goals.For example, it is uncommon for university pressesto offer sizeable advances to authors—most don’tContract Basics19

offer advances at all—whereas advances are generallyexpected in trade publishing. Similarly, universitypresses may be more amenable to allowing books tobe distributed under open access terms (like a CreativeCommons license) than a trade publisher, since theyare usually less concerned with maximizing profits andopen access may align with their academic mission.On the other hand, trade publishers may offer advantages for certain authors. For example, they often havelarger distribution networks (though online booksellinghas diminished this advantage somewhat), and theymay offer better marketing and advertising support.Not all publishers within a category operate in exactlythe same way, however, or for the same reasons. Andmany publishers have imprints that publish differentgenres of books and follow different business models(and some university presses have substantial tradeprograms). The bottom line: It pays to do your researchso that you can select a publisher with a business modelthat aligns with your interests. This increases the likelihood that you’ll successfully negotiate a publicationcontract that meets your needs.Notwithstanding the importance of selecting apublisher that has a business model that is compat-20Understanding and Negotiating Book Publication Contracts

ible with your goals, know that each publisher hasits own preferred terms, some of which can be quiteidiosyncratic. Many contracts contain terms thathave been added piecemeal over time in response tospecific negotiations. For example, once upon a time,a publisher decided it would be a good idea to protectitself in case it was sued for copyright infringementcaused by one of its authors. Poof! An intellectualproperty indemnity clause was added to the publisher’s contract. Another time, an author wasn’t happywith the cover art her publisher picked for her last bookand wanted to have a say over what art was used in thefuture. Tada! Approval rights were born. Because termsevolve over time, contracts often seem like the legalequivalent of Dr. Frankenstein’s monster, with partsdrawn from different sources and grafted together in anunruly whole. Or, in slightly less ghoulish terms, manycontracts are like the Chartres Cathedral—the spireswere built at different times in completely differentstyles, but the building still stands up.This is important because you may encounterterms in your publisher’s standard contract that arerelics of past deals and that are inappropriate for yourparticular project. Not all provisions in a publicationContract Basics21

contract work equally well for every author—one sizedoes not fit all—and ideally a contract should reflect anindividual author’s goals and priorities.22Understanding and Negotiating Book Publication Contracts

CHAPTER 3:NEGOTIATIONFUNDAMENTALS

THER E I S A L O T A T S TA K E I N A P UB L I CA T IONcontract, so after you read the agreement and understand its contents, you should consider negotiating forterms that are most consistent with your goals. Authorsmay be tempted to sign a contract right away due tothe excitement of receiving a publication offer. This isa mistake. The book deal is the start of a relationshipbetween you and your publisher that will last for years,and the negotiation is your opportunity to establish theterms of that relationship so that it works for you aswell as for your publisher.

NEGOTIATION IS A CONVERSATION,NOT A CONFRONTATIONFor many people, the prospect of negotiating is intimidating, conjuring images of tense situations or evenhostile confrontations. This kind of “hard” negotiatingscenario is common in movies and TV, but it bears littleresemblance to the way most negotiations actually playout. Rather than viewing it as a competition betweenrivals, think of negotiating as a conversation in pursuitof a shared goal: a successful book. Thought of in thisway, negotiation is a tool to help you build trust andunderstanding with your publisher, which can result ina mutually beneficial outcome. It is also important toremember that just as you bring something of value tothe table (your book and your copyrights), the publisherdoes too (expertise in editing, designing, creatingebooks, distributing, marketing, and sublicensing yourrights).Nevertheless, for many authors, negotiation isunderstandably a daunting prospect. If I try to negotiate,won’t this offend my publisher and cause it to revoke itsoffer? In all likelihood, no, especially if you negotiatein a respectful and reasonable way. In fact, being apolite, realistic advocate for yourself and your book may26Understanding and Negotiating Book Publication Contracts

engender more respect from your publisher. In mostcases, the worst that can happen is that your publishersays “no” to your requests, which doesn’t leave youany worse off than you were to begin with. You canthen decide whether to try to reach a compromise withan alternative version of your request, work with adifferent publisher, or seek additional assistance withthe negotiation. Or you may choose to accept the termsand sign the contract, knowing that at least you tried tocraft it to fit your goals. But if you are successful, you’llthank yourself in the future for making the effort tonegotiate for terms that work for you and your book.SHOULD I HAVE AN AGENT OR ANATTORNEY NEGOTIATE FOR ME?For many genres (such as fiction and trade nonfiction),literary agents function as gatekeepers to publishinghouses. It is therefore common for authors of thesetypes of books to be represented by agents ratherthan to negotiate directly. Conversely, many academicpresses accept submissions directly from authors,making it less common for academic or technicalauthors to have agents—though it’s not unheard of,and some agents specialize in working with academicNegotiation Fundamentals27

authors. However, even if you don’t need a literaryagent, you may still want one. Literary agents typicallywork on commission—i.e., a percentage of yourroyalties. (Working with an agent may involve its owncontract and terms; these types of agreements are notcovered in this guide.)Literary attorneys are lawyers who specializein legal matters related to the business of publishing, including contractual negotiations. By law, onlyattorneys can give legal advice, so if you have specificquestions about the legal effects of your agreement,you might need to engage with both an agent and anattorney. Typically, literary attorneys negotiate publication contracts for authors, but they do not getinvolved in book editing. Literary attorneys will oftencharge a per-hour fee, though some may work on commission like an agent.Although it may be difficult or costly to hire anagent or an attorney, such a representative can provideexpertise about how best to conduct negotiations andoffer distance between you and your publisher if thenegotiation gets sticky. Regardless of whether or notyou have representation, understanding your own28Understanding and Negotiating Book Publication Contracts

agreements is essential to getting what you want out ofthe publishing relationship.WHAT ARE YOUR GOALSFOR YOUR BOOK?The key to any successful negotiation is preparation.Before you begin to negotiate, consider what you hopeto gain from the relationship with your publisher.While authors, in general, share a common goal ofwanting their book to be widely read, what they hope toget out of a publishing deal may vary significantly. Forexample, it may be important for you to have languagein your contract that allows you to: Retain your copyright; Give permission for others to freely use your bookby making it openly accessible; Use your own work in the future; Protect yourself from frivolous claims that mayarise from the publication of your book; Publish additional works on a similar topic; Make your book available at an affordable price; Provide input on design choices, like the book’scover art and title;Negotiation Fundamentals29

Be paid fairly for your work; or Easily get your rights back if your publisher is nolonger making your book available or your book isno longer selling well.Whether it is retaining certain rights to your book,providing input in design choices, or making your workopenly accessible or available at an affordable price,your publishing goals are personal and not necessarilyreflected in a template contract.Literary LessonAs an example of how authors’ goals may differ,consider two archetypes: Annie Academic and EddieEntertainer.Annie Academic, a research scientist, is writinga scholarly monograph called Better Living ThroughBiochemistry. Annie wants her book to be taughtwidely in college classrooms, so she hopes to sellhard copies at a low price and to make the bookavailable online for free. Annie also wants to makesure her contract doesn’t preclude her from republishing parts of her book in scholarly anthologiesand that it doesn’t prevent her from publishing on a30Understanding and Negotiating Book Publication Contracts

similar topic in the future. Because Annie is paid forthe time she spends writing through her academicsalary, she is less concerned about royalties oradvances.Eddie Entertainer is a stand-up comedian whois writing a satiric novel called A Coalition of Imbeciles.Eddie is hoping that this book will propel him tofame and fortune, so he wants to be able to commercially exploit his book in as many ways as possible.Eddie hopes that his book will someday be made intoa movie or a comic book, for which Eddie would liketo write the script. Like many struggling comics,Eddie doesn’t have stable income, so he needs asizeable advance to be able to finish the book. Eddiealso wants to have final say over the book’s cover artand title.HOW DO I PREPARE FOR ANEGOTIATION?First things first: You need to read the proposedcontract and make sure that you understand what itmeans. This guide will help you decipher commonlegal clauses used in publication contracts, but ifyou still don’t understand the terms you may wantNegotiation Fundamentals31

to ask for clarification from your agent, attorney, orpublisher. Publishers welcome the chance to explaincontract terms—they want you to understand whatyou’re signing—and it gives you the opportunity tostart the conversation. Don’t understand what “secondserial rights” are? Not sure of the difference between“foreign rights” and “translation

Oct 03, 2018 · 10 Understanding and Negotiating Book Publication Contracts that promotes authorship for the public good by sup-porting authors who write to be read.2 Authors Alliance created this guide as a part of our mission to help authors understand and manage the rights necessary to make their