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How to Spot, and Avoid, “Pay to Play” Publishing Contracts

 

In recent months, I’ve seen the resurgence of several terrible “pay to play” publishing contracts that authors should learn to recognize and avoid.

My law school contracts professor used to warn us, regularly, that a person can make as good a deal, or AS BAD A DEAL, as he or she is able.”

Accept one of these particular contracts, and you’ll be making a very bad deal indeed:

BAD CONTRACT #1: “WE PUBLISH, YOU PAY”

In this type of contract, the author pays the publisher for some or all of the editing, publishing, and/or distribution costs to produce the book. Often, the costs are not listed up front, leaving the author on the hook for undisclosed (and generally, enormous) sums. Where costs are listed, they normally exceed the amount the author would pay to hire professional developmental and copy editors, cover designers, formatters, and printers in order to produce and publish the work herself.

In a traditional publishing deal the publisher, not the author, pays the publishing and distribution costs.

Beware: “pay to play” terms sometimes lurk in the royalty language, too.

If a contract lets the publisher deduct the costs of editing, publishing, and distribution of the work before calculating the author’s royalty share, that means the author is paying some of the publishing costs. Even though the contract may not require the author to pay the publisher out-of-pocket, this kind of language is still inappropriate in a traditional publishing deal.

Some non-traditional publishing houses openly offer “shared-cost” publishing arrangements, where author and publisher share the costs, control, and income on an equal basis. However, these arrangements are always disclosed as such up front, and these publishers don’t try to masquerade as “traditional” houses. They often refer to themselves as “hybrid presses” – and while some are legitimate, others are not. Always have these contracts reviewed by a publishing lawyer or agent before you sign.

BAD CONTRACT #2: “WE PUBLISH, YOU BUY” 

Many publishers give the author a certain number of copies of the finished work for free. Most contracts also permit the author to purchase finished copies, usually at a significant discount. But legitimate publishing contracts don’t ever require the author to purchase books from the publisher … at any price.

One publishing “offer” I see a lot requires the author to purchase several thousand copies (sadly, that’s not a typo) of the finished work—and to pay the publisher for them in advance! Some of these contracts cost the author tens of thousands of dollars, with no recourse if the finished work is unprofessional or full of errors.

Legitimate publishing contracts never require the author to purchase copies of the finished book.

Time for some publishing math: if the author is forced to buy 5,000 copies of his book, how many copies does the publisher have to sell to other people in order to make a profit?

The answer, of course, is none—and publishers that use mandatory-purchase contracts generally make little or no effort to sell the books they publish (except to the authors). Mandatory author sales generate all the profit the publisher needs.

BAD CONTRACT #3: MANDATORY MARKETING SERVICES

In this contract, an unsuspecting author is offered a “traditional publishing deal” – meaning the publisher pays the publishing costs and offers industry-standard royalties on sales – but the contract contains a “mandatory marketing agreement” (or addendum) that requires the author to pay the publisher (or an affiliated marketing company) thousands of dollars to market and advertise the author’s book.

This is not a traditional publishing deal, and it’s not a good deal for the author.

Once again, the author pays thousands of dollars (in some cases, $10,000 or more), in return for often-unspecified “marketing” efforts. When the contract does list the marketing services, they usually include only things the publisher (or its “marketing arm”) can do in-house–and that the writer can do more cheaply for himself or herself–for example, press releases and posts for the author’s and publisher’s own social media channels. The services sometimes include “advertising design” but not the cost of actually running ads in any magazine or other forum.

As with the “We Publish, You Buy” scenario, this type of publisher doesn’t make its money selling books. When the publisher makes thousands of dollars per author in marketing fees, the publisher doesn’t need to sell any books to make a profit.

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The takeaway: in a traditional publishing deal, the author never pays the publisher (or a publisher-affiliated marketing agency). With only a few, very rare, exceptions, traditional publishing deals involve a unidirectional flow of money: from the publisher to the author.

If anyone tries to persuade you differently, run–don’t walk–in the other direction. The career, and the money, you save will be your own.

Have you ever seen one of these “pay to play” publishing contracts, or other unfair publishing deals?

About Susan Spann [1]

Susan Spann [2] writes the Hiro Hattori Novels (Shinobi Mysteries) featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo, who solve mysteries set in medieval Japan. Her first novel, Claws of the Cat [3]: A Shinobi Mystery (Minotaur, 2013) was a Library Journal mystery debut of the month and a finalist for the Silver Falchion Award for Best First Novel. Her fourth Hiro Hattori novel, The Ninja’s Daughter [4], releases August 2, 2016 from Seventh Street Books. Susan is the 2015 Rocky Mountain Fiction Writers’ Writer of the Year, and also a transactional attorney whose practice focuses on business and publishing law. She founded and curates the Twitter hashtag #PubLaw (for Writers), where she answers questions and provides information about publishing business and legal issues. When not writing or representing clients, Susan enjoys traditional archery, reading fiction and nonfiction, and raising seahorses and rare corals in her marine aquarium. She lives outside Sacramento, California, but you can find her online at http://www.SusanSpann.com [2], on Twitter (@SusanSpann [5]), or on Facebook/SusanSpannBooks [6].