Anatomy of a Publishing Contract, Part 2

PhotobucketToday’s guest is Raquel B. Pidal. Raquel has a master’s in Publishing and Writing from Emerson college, where she studied copyright law, contracts, and rights. She currently works in publicity at Harvard University Press, and is also a freelance writer and editor. She’s also the blog mama of Copyrighteous–a site focused on copyright and writers’ rights issues.

If you missed part 1 of her thorough and fabulous post on publishing contacts–when she discussed some business basics, including why it’s important that you understand your contract before signing–click HERE, then come back. Today, she’ll explain three important clauses: the introductory clause, the delivery and acceptance clause, and the grant of rights clause (including sub rights).

The Anatomy of a Publishing Contract: Part 2

By Raquel B. Pidal

Clauses, clauses, clauses! What do they all mean?

A publishing contract will begin with an introductory clause that lays out the parties involved in the contract (the author and the publisher) and what the contract is in regards to (the manuscript). It also lays out the date when the contract comes into effect. There’s also usually a brief description of the work the author’s submitting. Sometimes this is vague to the point of being nearly indecipherable—just a title and then a few words of description: “Eighteen Wheels: A novel about truckers” or “Finding the Light: How to Rewire a Lamp Yourself—an instructional guide.” You may want to flesh this description out a bit on the contract (or on an attached page that you can refer to as a rider) so that it’s more specific what you understand that the publisher expects from you. “Eighteen Wheels: A novel of approximately 70,000 words about a group of truckers and their adventures traveling across America” or “Finding the Light: How to Rewire a Lamp Yourself—an instructional guide of approximately 50,000 words including directions for working with wiring and projects, along with illustrations and photos.” Inserting this little bit of extra information will give you a little peace of mind, especially considering the next clause that’s included in a publishing contract: delivery and acceptance of the manuscript.

The delivery and acceptance clause gives the date when the publisher expects you to turn in the completed manuscript of your project, and it often also spells out in what format they wish to receive it. If you’re writing fiction, you most likely have the manuscript completed and perhaps only have a few tweaks or formatting issues to resolve before turning the book in, but nonfiction books are often sold on the proposal and one or two sample chapters alone, so the due date is especially important. If you feel that you simply can’t turn in the manuscript by the publisher-assigned date, negotiate it, don’t just ignore it, as turning your work in late can render you in breach of contract.

Also be certain to pay attention to the terms of acceptance included in this clause. It should spell out what you’re expected to turn in and what happens if the publisher is unhappy with the work. Often the wording here is vague, merely saying that the manuscript should be “satisfactory” to the publisher or the publisher can drop the project. But that means different things to different people, so this phrase is a sort of “get-out-of-contract-free” card for the publisher. Make sure you discuss what “satisfactory” (or any other sort of vague wording) means with your editor so that you have an idea of what’s expected from you. You should add in more specific wording as to what “satisfactory” means. And you should add in a phrase saying that if the manuscript isn’t up to the publisher’s standards that you’ll then get a certain amount of time to revise the manuscript to their recommendations.

You’ll then find a grant of rights clause listing the rights the author is giving the publisher, the territory in which the rights apply (for instance, the United States and Canada), the amount of time the contract will remain in effect. Basically, what this clause means is that you are transferring ownership of whatever rights are listed to the publisher to do with as he pleases while the agreement is valid.

What does this mean? When you create a work of art in the United States, you automatically become that work’s copyright owner, and your copyright comes with a “bundle of rights” that you also own and that are also protected by your copyright. The bundle of rights includes:

• Reproduction of the work (making copies)
• Creation of derivative works based on the original (such as a screenplay version of a novel)
• Distribution of copies to the public (publishing and selling your book)
• Public performance of the work (such as a reading)
• Public display of the work (seems to apply more to visual art)
• Public performance of the work via digital audio transmission (a fancy term for sound recordings)

When you first examine your rights clause, you’ll find that your publisher probably wants all of them, and that’s not necessarily in your favor. Naturally you want your publisher to have the rights to duplicate and sell your work, otherwise known as primary rights; that’s the whole reason you entered into this arrangement in the first place. (Most publishers, however, will allow you to keep your name next to the copyright notice in the front of the book; they just want the right to publish the book, so they don’t care if you yourself appear as the copyright owner.) But do you want your publisher to take on ownership of your subsidiary rights (otherwise known as sub rights) to create derivative works, such as screenplays, foreign editions, translations, and audio books? It’s a tough call.

Sub rights are a sort of inexact science (just like everything else in publishing, so no surprises here). Sometimes it’s to your benefit to allow your publisher to own and sell these rights; your publisher may already have well-established connections with publishers of mass market paperbacks who’d be interested in printing an edition, or with foreign publishers eager for American books. Or perhaps they’re good at getting audio book deals for their authors. If your publisher is a larger house with a separate sub rights department or has a good past track record of successfully selling sub rights for many of their authors, and you also don’t have an agent who will help you in the sale of these sub rights, it’s in your best interest to allow your publisher to sell these rights on your behalf and split the profits with you. On the other hand, if you’re publishing with a small house that lacks a sub rights department and that doesn’t seem to have much clout when it comes to sub rights sales, you’re probably better off retaining these rights for yourself and trying to sell them on your own. Think of it this way: why would you give away something that could potentially be valuable to you to another person who’s just going to let that potentially valuable thing sit on a shelf and collect dust? You may not make any more headway selling these rights than your publisher would, but at least you retain them so that you have the option to do with them as you please.

Sub rights can be incredibly profitable—sometimes more so than the original book—which is why your publisher, and in turn you, should be so interested in keeping as many of them as possible. These have thus become a big negotiating point. When negotiating with your publisher over sub rights, keep in mind that most publishers tend to split the proceeds from sub rights sales with authors in percentages that favor the author, by 5 or 10 percent or more. Negotiate to get the best deal for you. If you have an agent, let the agent do it, as they are experts. Determine which rights you want to keep, if any, and which you want your publisher to have. Also decide what percentage of profit will make it worth your while to let your publisher have them. You may also want to add a phrase such as, “All rights not expressly granted to the publisher are hereby reserved by the author.” This gets a little knit picky, but it’s worthwhile to include. “Rights not expressly granted” could include the right to create and use your name as a website domain, the right to sell author copies, and so on. You can also limit the rights you give your publisher by language or territory, and you can limit the amount of time that the publisher can own specific rights. For instance, if certain rights haven’t been sold within 2 or 3 years, you can stipulate that they then automatically revert to you. When it comes to deciding what you want to do with your sub rights, it depends on what kind of potential you and your publisher think the book has for being converted into other formats. Does your how-to book lend itself to a home improvement television series? Does your novel have the potential to be a blockbuster on the big screen? Consider what sort of “life” your manuscript has beyond the bookshelf to determine what sub rights negotiations will be best for you.

Come back tomorrow, when Raquel will tell us about the advance and royalties clause, permissions, the option/first right of refusal clause, the warranties and indemnities clause, and the out of print clause.