Authors have many things to watch out for when evaluating a publishing deal, but one of the most common—and most serious—dangers is something the author doesn’t see: the vital clauses and protections that are often missing from “short-form” publishing contracts.
Most authors look at standard publishing contracts (which can easily run from ten to twenty pages, or even longer) with a combination of confusion and concern. For those not versed in legalese (or, more precisely, Publisher-ese) standard contract terms can range from “complex” to “might as well be written in Sanskrit.”
Because of this, some authors see a three-page form and think “hey, this is great!” and “finally, a contract that makes sense!”
Beware…that way be dragons.
Publishing contracts are usually long because they deal with many important legal issues. (Note: anthology contracts are often short, because of the rights involved—this post addresses contracts for novel-length works only.)
“Copyright” is actually a bundle of rights, each of which needs to be addressed in some way in the publishing contract—if only to state that the ones not expressly granted to the publisher stay with the author.
Failure to deal with all of the relevant issues creates ambiguities, and in short-form deals, many of those ambiguities cut in the publisher’s favor.
I’ve recently seen a number of “short-form contracts” that claim to offer authors a “better deal” than “old, traditional, complicated forms.”
Short form contracts do often include quite a few important clauses, such as grants of rights, royalty statements (and royalty levels), and when the publisher has to send royalty checks. However, short contracts often omit other critical provisions. When problems arise, the author goes to the contract, only to discover the “friendly form” doesn’t address the issue (or, worse, it does, but the publisher prevails).
Here’s a list of just a few important provisions short-form contracts often don’t include:
1. Complete statements of rights/reservations of rights. The shorter the contract, the more likely it is to simply grant the publisher “all rights” to the work. Publishers don’t need “all rights.” They need a license to publish certain forms and formats (in certain territories, and certain languages). Everything else is open for negotiation, and much of it should remain the exclusive property of the author.
2. Author termination rights. Most publishing contracts ostensibly last “for the life of copyright,” but that’s only if the contract remains in force, and isn’t terminated before the copyright term expires. Good contracts give the author several ways to escape if things go badly, including the right to terminate (and revert all rights) if the publisher fails to publish the work within a specified time, goes out of business, breaches the contract, and/or fails to sell at least a specified minimum number of royalty-bearing copies every year. Short form contracts often fall woefully short on authors’ termination rights (if they give the author termination rights at all).
3. Sales Statements. It’s not enough for the publisher to send royalty checks periodically. Each check should be accompanied by a sales statement detailing the number and price of copies sold and other relevant information (e.g., returns and discounts) during the period in question. I’ve seen many short-form contracts that skip the issue of sales statements entirely—and if unwary authors focus on the royalty numbers, and forget the need for documentation of those sales, it can be difficult (read: impossible) to force the publisher to exceed its contractual obligations once the contract has been signed.
4. Audit rights. The author should have the right to audit the publisher’s books and records (as related to the author’s work) at least once in every calendar year. Good audit language actually goes beyond that, but this is the minimum—and even this is often missing from short-form deals.
5. “Out of Print” status properly defined (and tied to sales). Short-form contracts often omit the author’s “out of print” termination rights altogether or tie “out of print” status to “availability” – meaning that as long as even an ebook version remains on sale, the work is never out of print.
Last, but not least: never rely on any promise or representation which isn’t written into the contract. Contract law says that a promise which isn’t contained in the contract generally does not exist as part of the deal. (There are exceptions, but you should never rely on falling within an exception to the rule.)
Please note: this list is not exhaustive. There are many other important provisions which short-form contracts often omit (or fail to mention) and which may need negotiating even in standard contracts. The clauses above are just examples, to demonstrate how dangerously incomplete short-form contracts often are.
Agents and publishing attorneys scrutinize contracts carefully and know to look out for important clauses. Unfortunately, short-form contracts often come from smaller presses, and the authors who receive them may not have an agent or attorney. Before you sign any publishing contract, have it reviewed by a literary agent or publishing lawyer. Don’t rely on your own ability to spot the missing clauses—it’s a dangerous risk, and one many authors eventually regret.
Publishers and authors should be able to trust one another, and good publishing relationships function like partnerships between the author and the publishing house. Good publishers come in many sizes, and the size of a publishing house is not always a good indicator of the quality of its contracts (or business operations).
However, it’s also true that good fences make good neighbors, and good contracts make for good partnerships—in publishing and elsewhere. Make sure your contract contains the industry-standard terms required to establish the professional relationship you and your work deserve.
Have you seen a short-form publishing contract? Did you notice any important omitted terms?