Know Your Book Contract: The Drunk Lawyer Clause

A few years ago I was the freelance editor of a four-volume set of books known as the Banned Books Series that were published by Facts On File, a major reference publisher. I was offered a modest advance—well, not too modest; it enabled my wife and me to make the down payment on our first house.

But that’s not the point I’m making. I was offered no royalty, just the advance, because that’s how book editors were traditionally treated. I told my agent I wanted a royalty also. I knew it wouldn’t be a major windfall; the writers deserved more for their efforts than I did as the editor. But, I said, “I know who I am. When the book comes out, when I see my name on the cover”—because I negotiated that placement—“I know I’ll be out there selling the book. My efforts will help the authors. My efforts will help Facts On File. I deserve a royalty.”

And I got it. Of course, it was only 1% or so, and it came out of the authors’ royalties (with their agreement) rather than from Facts On File. But I was pleased to know that I was the first editor ever to receive a royalty from Facts On File (if I am to believe the publisher). And I did promote the book, to everyone’s advantage.

But not because of the 1% royalty, which, in Yiddish, would be known as a pitzelach, a teeny bit. In the boilerplate contract was a clause, known as the resale clause, which said that the volume authors and I could purchase a minimal number of books, ten or so, at some modest discount, between 30 and 40%. But then the next phrase said, “but not for resale.” The sentence after that said, “Royalties will not be paid on books purchased at author discount.” This is a common clause in boilerplate contracts, especially academic press contracts, which are the worst in the business.

We know that boilerplate contracts are written by publishers’ lawyers, and that the contracts are generally to the advantage of the publishers. But this clause was destructive to both the publisher and the author. I’m sure it was written by a drunk lawyer because it harmed his own client. It treated the contributors to the book as competitors to the publisher. I said to my agent, “I want to be able to purchase books at 50% off or the best distributors’ discount, for resale, and with no risk to my royalty. If Baker & Taylor purchases books at 50% off I don’t lose my royalty. Why should I lose my royalty if I purchase for myself at 50% off?” Further, I argued, I knew I’d be walking into bookstores and libraries that their salespeople would never approach. I knew I’d be setting up speaking opportunities on my own dime. Why should Facts On File get the money?

Fortunately Facts On File was enlightened enough to see the logic. They allowed the revised clause. And I made it worthwhile for them. The set sold in hard cover for $140. Libraries loved the set. They still are a mainstay of Banned Books Month every year and in fact the second, expanded edition came out a few seasons later. For me, I would walk into a library, show the purchaser the set, walk out with a check for $140, and bank half of it. It was free money for the publisher because I found outlets their best sales force couldn’t find. Facts On File may have only made 50% of $140 but it was a lot better than 100% of nothing. And they did no better when distributors sold it. In fact, I was a distributor. That’s how they related to me.

The worst-kept secret in the publishing industry is that publishers don’t promote books. Are you ready to stand in for them? Successful writers know that they are not just starving artists; they’re also business people. Signing a contract is part of your business. But what do you know about the contract that is in front of you?

On Friday May 15, you have a chance to learn more than you ever knew there was to know about book contracts if you attend my workshop as part of the Ann Arbor Writers Conference.

Time: 8:45-9:45 a.m., so if you have a day job you can attend and still make it to work with only a little comp time required.
Location: Palmer Commons at 100 Washtenaw Ave. in Ann Arbor
Room: Forum Hall

Then join me the next day at the 6th annual Ann Arbor Book Fair inside the Michigan League on the University of Michigan campus. I’ll be at booth #30, selling books through my own Azenphony Press, and promoting my editing service and my next book, about the underground press from the Vietnam Era, so I’ll be available to answer questions about contracts as an expansion of my talk.

You can get directions to Palmer Commons and the Michigan League, as well as answers to all your questions about the Ann Arbor Book Festival, at their Web site. Or just Google “Ann Arbor Book Festival.”

For full, clause-by-clause contract advising and help in negotiating, I urge you to join the National Writers Union. For your membership, you can request free contract advising from NWU’s Grievance and Contract Division, the best group of contract advisers in the business. No exception. No group even comes in a close second. You can join online. Membership is worth it just for this one member benefit. I’m one of the CAs so you can request me if you want—but for the full contract review you have to be a member.