BOOK CONTRACT CLAUSES FROM HELL

This blog entry is for anyone who has ever looked at a book contract or fantasized about wanting to write a book.

Image result for clip art images

Last month, I spoke to a group of writers about some of the worst clauses that regularly show up in book publishing boilerplate contracts. The information that I shared in fifteen minutes was an iota of the information that the National Writers Union’s trained contract advisers provide to our members while we are teaching them how to negotiate.

Most writers unfortunately have no idea what a book contract looks like, what rights they have as authors, or how to monetize those rights. Too many are willing—and expected by publishers—to blindly sign boilerplate contracts, which are written by the lawyers of the publishers to protect only the publishers. Authors get little in return and feel powerless.

So the union’s Grievance and Contract Division advises members on their contracts. We take members through every clause in the contract or whichever particular clauses are of concern, explain what they mean, and suggest counteroffers and sometimes even counter-counteroffers. We don’t claim to be lawyers because not all of us are; but as an activist brain trust we know more than most lawyers; lawyers come to us for advice.

Many writers join the union just so that they can obtain the free contract advising that is a members-only benefit of membership. We welcome them because every clause that any writer negotiates for the better is a victory for writers everywhere.

Even with contract advising, however, most contracts are not writer-friendly when they are signed. So, many writers today are turning away from traditional publishing houses. New and emerging printing technology and social media are now accessible to us all; and the failure of publishers to adequately market our books is known as the worst-kept secret in the business.

Writers are looking for newer models, publishing independently or working with smaller, print-on-demand publishers who are more likely to treat them as team members. But they don’t know any more than we do.

To protect your work whether you sign with a traditional corporate/academic publisher or a smaller, new age publisher, you need to understand what rights you are giving away and what rights you are successfully exploiting.

Here are a few …

Clauses from Hell

Copyright: In summary: Look for a clause that says, “The copyright will be taken out in the name of _________” and put your name there like you want it to appear on the copyright page of your book.  If the blank is already filled out with the name of the publisher, cross out the name and print yours neatly above it. Then initial the change—every change you make must be initialized. If the publisher refuses to negotiate, walk away and don’t look back.

Royalty: The standard royalty rate for hardbound trade books is, give or take, 10% of list price, which is the cover price, on the first 5,000, 12.5% on the next 5,000, and 15% thereafter. This is called an escalating clause where the royalty increases as sales increase. On trade paper, it’s 7.5% on the first 10,000 and 8% thereafter. If you are offered royalty based on net price, that means list minus expenses. As much as possible, avoid agreeing to contracts in which any expenses other than discounts and credits for returns get factored in. Whatever you are offered, ask for an escalating royalty structure rather than one rate based “on all books sold”; and make sure your royalty on subsequent editions is based on cumulative sales, which means that sales don’t begin again at 0 for the second edition.

Always keep this phrase on the tip of your tongue: “That seems pretty low to me.” [Repeat after me.]

Resale clause: I call this the “drunk lawyer clause” because it is a clause that hurts the client—the publisher. The typical resale clause says that the author may buy some minimal amount of books at some modest discount, like 25 or 40% off cover price. But then it says “but not for resale.” And sometimes it even adds, “Royalties shall not be paid on books purchased at this discount.”

This is a nuts clause. If your boilerplate has it, cross off the low royalty and write “50% or the best distributors’ discount.” If it says “but not for resale,” cross out that clause and don’t look back. Do the same with the no-royalties clause if your contract has it.

Why is it a nuts clause? Because it treats the author as a competitor of the publisher instead of as a partner. Once you submit your manuscript to the publisher, you are no longer merely the author. You are now, potentially, a distributor, just like Barnes & Noble and the other major distributors. You know you’re going to promote your book when it comes out: at talks, at conferences, through social media. Every time you buy a book at 50% off, the publisher is getting 50% of something for doing nothing. Without that incentive to sell your books, you lose money setting up your website, promoting your events, and driving to them, so you stop buying books. The publisher then makes 100%–of nothing. If your editor doesn’t understand the logic of making free money just for giving you a chance to make money, too, walk away and don’t look back. Once you find yourself a competent editor, buy yourself 50 copies of your book for inventory and keep them in your car everywhere you travel.

Advances: The general rule is to ask for as much of an advance as possible because that’s all the money you likely will ever see other than sales you make on your own if you secure a favorable resale clause.  This is because royalties often never amount to the size of your advance. If the advance is paid in one lump sum, make sure you receive it upon signing rather than upon submission or acceptance of the manuscript.

Grant of secondary rights, in general: Before you grant any secondary rights, ask which ones they will be actively exploiting and how they will be exploiting them. If they have no intention of exploiting any rights, they have no business expecting you to give them control over them. This includes performance rights, translation rights, foreign rights, and others. Cross out all related keywords and phrases that pertain to the rights you want to keep. [For performance, for example: audio (sound recordings), video, motion picture, multimedia version, television and radio, cinema, cassette, filmstrip, disk, wire recording, stage, movie, dramatic, public reading, adaptation, visualization, and recording.] If they insist on taking any rights that you would rather keep, give them limited-time rights, say eighteen months.

Electronic rights: Electronic rights used to be a 50-50 split at worst. Sometimes the author could get up to 90%. But that was when electronic rights were only a minor part of the income stream. Then along came the windfall provided by the Electronic and Information Age. Instead of sharing it with the authors, publishers decided they wanted it all. They called electronic rights “an extension of print rights” and offered 10 to 15% net for e-book rights. Fight for at least 50%. This fight should not be seen as lost—but winning it will be a long uphill struggle.

Copies of the manuscript: This shouldn’t even be an issue today but I still find it in some contracts. If your contract requires you to ship two double-spaced printouts of your manuscript in addition to sending an electronic attachment, cross out the printouts and initial. No competent publisher is editing off hardcopy anymore so why should you send it that way?

Production and promotion: You won’t get much say in, for instance, cover design, promotion, marketing strategy, or selling price of the book, but you should be able to get a clause that says some form of “the publisher will seek input from.” Why would they be crazy enough to not seek input from you when you know your book, its selling points, and even college courses that might adopt it as a text better than anyone?

Remember, though, the worst-kept secret in the industry: Publishers seldom do any major promotion beyond listing your book in the current catalog and sending out a few press releases and review copies. That’s the reason so many of us are turning to the new technology to do it ourselves.

A Few Final Words

There is nothing simple about looking at your first book contract. Contracts are a mumbo-jumbo of legalese that is deceptive, vague, and oppressive. Don’t let yourself feel rushed. Don’t make any conclusive statements over the phone without first taking a day or so to think about the ramifications. Practice saying, “Let me get back to you. I need to speak with my contract advisor.” You can be sure your publisher will check with their lawyer. Why should you do any less?

It’s true that there are a lot of writers who are willing to sign poor contracts in exchange for bylines. But it isn’t true that the moment you speak up your publisher will dump you. There is tremendous pressure in the publishing business to produce many books and produce them fast. This is a testament to the megabucks publishers stand to make from our collective knowledge and labor. But publishers still want to produce quality books because their reputations rise and fall based on the books they produce. While they won’t give in to your every demand, it is a lot cheaper for them to let you win on a few clauses than it is to reject you altogether and find another writer, with a good book, who won’t make any demands, in time to get the finished product into the next catalog.

Finally, always think of your bottom line. If you’re willing to cross it, then you aren’t negotiating; you’re bluffing. Look in the mirror before you make that first phone call after you’ve had a chance to read National Writers Union Guide to Book Contracts and then review your contract with your contract advisor. Practice saying, “I am a writer. I have dignity.”

Ken Wachsberger is a former national officer with the National Writers Union, UAW Local 1981, and is a member of the Southeast Michigan chapter. He is a contract advisor with the Grievance and Contract Division as well as a freelance writer, editor, and author, book coach, and owner of Azenphony Press Writing and Editing www.azenphonypress.com; www.voicesfromtheunderground.com; ken@azenphonypress.com.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: