Publishing Contracts 101: things a writer should check before signing a publishing contract
General Note: you are a writer－and it could mean that you write across any of all the several writing spectrum there is－and finally, the publisher you sent a copy of your manuscript to finally sent you that email. In that email, you saw something like this: Sign, Ani Ugochukwu Kingsley. Your first reaction would be to hoot and then pump yourself into the air like a gymnast－but alas, you have never been to the gym－before you sign. Many publishers now use this Adobe Ecosign, so it is easy.
SIMILAR READING: Essentials of a Contract of Employment
You have gotten the contract you want, but you made one mistake: you did not go over the entire contract terms of the deal with a fine-tooth comb. That is your first mistake, and it is a mistake that might cost you a hell lot in the future. You know why? It is because, in the publishing industry, contract is king. You are bound by any contract you put your pen to.
I am a writer and an attorney, so I can confidently tell you that your publishing contract can easily come back to haunt you when you least expect it to.
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THINGS TO LOOK OUT FOR IN A PUBLISHING CONTRACT BEFORE YOU SIGN.
DESCRIPTION OF THE WORK
Make sure that this is exactly spelled out in your contract so that the editor will not later come back to tell you that the material you later submitted is not the material that was covered under your contract. In most cases, make sure that the contract describes your manuscript by name and perhaps a description of the subject matter so that there will be no mistakes about this in the future.
This will generally refer to copyrighted material including but not limited to: lyrics to copyrighted songs; passages from other novels and/or short stories, etc, which the author mentioned in his work. In most cases the publisher will insert in the publishing contract that they will apply to the copyright owners of such works, with any and ALL fees accruing from such usage payable by the author.
As an author with limited funds, you might want to renegotiate this so that it is offset against your royalties or for the publisher to insert it as one of their overhead expenses in the course of the production of the book.
It is often better for the author to negotiate to receive his first advance royalty check the moment the publisher receives the author’s signed copy of the contract. Do please be wary of advance terms that state that you get paid upon ‘execution.’ you may have to wait for a very long time as the publisher can put off executing the contract for a long time.
This refers to the umbrella body of all the grants the author will give to the publisher in regards to the publication and the distribution of work. This goes in terms of territory and media. Territory: it could be World Rights; North American Rights, African Rights, etc. Media: Hardback and paperback editions; audiobooks; electronic rights, etc.
When handing publishers your rights, be sure to hand them only the rights which they will actually use/exploit. If, for example, your publisher is based in Nigeria, with a distributorship of only the west African zone, it does not make sense for you to grant them world paperback rights since they do not distribute their books in the US. You get the point.
When your publisher asks for all these rights, ask for a white paper pertaining to their exact channels for said rights before you agree. If not, only grant the rights which you are one hundred per cent sure that they will exploit and nothing else. Even if you have to compromise to give out the other rights, do this only for a limited period of time only and not for the entire duration of the contract.
In a standard contract, the copyright should, at all times during the duration of the contract, remain vested in the author. Some authors may negotiate for the assignment of said contract to the publishers.
NB: Most contracts will state that ‘upon publication, publisher shall register the copyright in the work in the name of the author at the appropriate copyright commission office’. meaning that they will be responsible for paying the necessary fees and all; ensure that the publisher include in the contract that they shall register the copyright within 90 days from the date of the publication of the manuscript.
EDITING OF THE WORK
So many publishers will input to the contract that they shall have the ABSOLUTE DISCRETION to edit the manuscript to fit their publication standards. What they fail to add is that they have the discretion to do that WITHOUT the input and/or the authorization of the author. The author may not notice this, but when he sees the final proof, he can say: this is not my manuscript. And then the publisher will remind you that you agreed to their editing of the manuscript. Make sure that even if they have such discretion, that all modification of manuscript (except where such modification is for line editing for typo and sentence syntax errors) shall be with final written approval of the author.
First, will be the cover price. This is ordinarily the price at which the publisher will set the book to be sold at upon publication. Also known as Suggested Retail Price. Be careful with this, as many publishers will give percentages off the net sales price of the books when published, depending on the sales channels and outlets utilized by the publisher in marketing the book.
This has to do with the money that will accrue to the publisher from the exploitation of the copyrighted material by third parties under the following media: anthology rights (50% standard), serialization rights (90-10% standard which will be in favor of the author, by the way), translation rights, Mechanical Reproduction Rights, Sound Broadcast Rights, English Language reprint Rights, and a host of others. The secret for the author is this: do not grant the publisher tangential rights. Grant the publisher only the rights that is relevant to it for the sake of the publication of your work.
Stemming from the above, why should the publisher earn percentages off dramatic rights when you manage to finally sell your rights to a studio or network for performance? Their business is to take the rights that they will really/actually use in the publishing of the book, not other rights that will accrue to subsequent profit for the writer if and when utilized.
Rights can be granted on an exclusivity basis ie it is granted exclusively. In this case only the grantee can exploit the right and no other person. Or the rights can be granted non-exclusively, in which case there can be more than one grantee. Note that for some rights eg world English Language publication rights, you can grant same non-exclusively so that even if the publisher turns out to be inadequately equipped to carry out the deal, you can find another publisher to carry out the publication in other territories without being in breach of your contract.
RIGHT OF FIRST REFUSAL
It can be couched under several headings, but it boils down to one thing: that the publisher must be the one to receive any other manuscript written by you before you pitch same to other publishers. They can blanket such a clause for the set of characters in your first book, a universe created for the book (think Middle Earth in T.R.R. Tolkien’s trilogy), or for any other book written by you. Or for the next book in the series (if it is a book series). Or for only the next manuscript to be penned by you.
Before you agree to this clause, please be careful. Let’s say that the publisher handled your first book poorly, and because you’re bound by contract, you sit them out. But you don’t want them to touch anything else written by you. Well, if you agreed to the above-mentioned clause, then you MUST submit your next work to them. If they like it, you will have to go with them unless factors dictate otherwise. It is only if and when they reject it, that you can then pitch to other publishers.
REVERSION OF RIGHTS
This would ordinarily be referred to as a break clause. It allows the author’s rights to revert back to the writer after a certain period of time－let’s say three years from the date your work is remaindered or perhaps goes out of print. It ensures that your rights does not remain with your publisher indefinitely.
If there is no such clause, then note that your book might remain with the publisher for a duration-of-copyright time. Meaning that they will retain rights to the book for your lifetime and perhaps 70 years after your death.
PUBLIC RELATIONS AND MARKETING
Make sure that the publisher inserts a marketing plan and public relations for your book. Otherwise, your book might sit on the bookshelves and rot. If this clause is not there, have it inserted. Even if it is there, make sure that the PR department of your publisher shows you viable plans about how they can market your book to get to its readers.
All the above and several more are clauses you should look out for before signing a book contract. Otherwise, you just might get burned.
© 2017 by Kingsley Ugochukwu Ani Esq.
About the Author:
Kingsley Ugochukwu Ani L.P. is a legal practitioner, blogger, corporate branding specialist, and seasoned Intellectual Property expert living and working in Lagos, Nigeria. You can contact him via firstname.lastname@example.org or on Linkedin, Facebook, and connect with him on Twitter. Add him up on Skype via live:aniugochukwu. He is also the author of the acclaimed erotic saga: The Wedded Whore.
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