WHAT ARE THE TYPICAL ELEMENTS OF A PUBLISHING AGREEMENT/CONTRACT? Grant of rights––The grant of rights clause allows the author to transfer some or all of the ownership of a work to a publisher, giving the publisher permission to publish the manuscript.The grant of rights can be limited by geography, time, media, language, or whatever else is called for in the contract.This clause tells you all the things your publisher can do with the work once it is bought.It will define whether the grant of rights to the publisher is complete and exclusive or is limited in one way or another.Most publishing houses seek a broad grant of rights so they can exercise all rights under the copyright for the “sole and exclusive right to print, publish, and sell” their edition of your book.They find it is difficult to administer minor exceptions, and that is why they would prefer handling all rights.This is often unrealistic, however, and authors are seldom willing to grant such sweeping rights.Therefore, most contracts define carefully what rights are being assigned to the publisher and what rights are being reserved by the author.The purpose of the contract is not to put anything over on anyone.This should not be adversarial process.Authors and publishers must protect themselves, but they should also be equitable.
Copyright––The copyright clause allows the publishing house to copyright the book in the author’s name.Make sure you get the copyright in your name because all a publisher needs is the legal right to publish, not ownership of the copyright itself.The copyright should be in the author’s name, displayed on the copyright page, and then the license to publish the book is transferred to the publisher.Even if an author grants all rights to the publisher, most publishing houses will as a legal matter copyright the work in the author’s name.But if the publisher does copyright the work in its own name, authors need to make sure the copyright reverts to the author after certain things occur, such as the book going out of print. Almost always it is the publishing house that takes responsibility for the formalities of copyright.
Amendment of law––All references to copyright made in your publishing contract are subject to such amendment and change as may be enacted by the Congress of the United States of America or by any other legal authority with regard to the present Copyright Act or by the adoption of any new Copyright Act.
Warranty and indemnities––This section in the contract is used by publishers to indemnify themselves against possible lawsuits.The author certifies that the work is original and not plagiarized.The author further promises the publisher that he or she has every legal right to enter into a publishing agreement, and in so doing they are not interfering with anyone else’s rights.The punishment will be spelled out later in the contract, in the infringement of copyright clause, should these promises be breached.
Competing editions––Here the author agrees not to try publishing another book that would compete with the sale or impair the sales of the work referred to in the contract.
Permissions––Theauthor agrees to secure any necessary grants of permission to quote material under copyright ownership.The general rule is that permission must be granted on all material still under copyright protection unless it falls under the “fair use” doctrine of the Copyright Act.This doctrine permits a reasonable use of copyrighted material without the consent of the copyright proprietor.“Fair use” is a nebulous concept, with no hard and fast rules, and authors need to remember to credit all sources even when permissions are unnecessary.Since it is the author who knows what he or she has borrowed, it is sensible that the permissions responsibility should rest with the author and not the publisher.
Authorproofs––In this clause the contract stipulates the author will read the galley proofs (the tentative layout of the material in page form) of the manuscript and return them promptly to the publisher.Most often a timetable for returning the proofs is listed here in this clause, whether two weeks or thirty days or whateverThe language in this clause also stipulates that the author will not undertake a rewrite or otherwise try to make major changes or alterations in the manuscript at that time.The reason for this is that once the material has reached this stage, it is expensive to make such alterations.
Delivery of final manuscript––The delivery clause spells out the deadline for submission of the final version of the manuscript to the publisher.(The original meaning of the word deadline meant the boundary around a prison beyond which no prisoner could go safely.If one stepped over the line, he was dead!)Some publishers are not that rigorous about the manuscript delivery date.With a publishing schedule, as with a writer’s schedule, there often is some slippage.But don’t count on it, and always remember that Murphy’s Law prevails.The delivery date is important to the publisher because publishers operate under strict deadlines, and the late delivery of manuscripts can cause problems with editorial work schedules, the printing of catalogs and promotional pieces for the books, the work of field sales representatives, and with sales more generally.This is why, after a fair and reasonable time of delay (which general trade practice defines as no more than one or maybe two months), the publisher will contact the author and call for the manuscript. If extensions are granted, then both sides should make definite new delivery date guidelines.
Time limit for publication––Your contract will specify what could happen when the manuscript slides by the delivery date.In this case, the publisher has the right to terminate the contract should the author fail to deliver the manuscript within a specified period of time from the stated delivery date.
Editing and form––The editing clause gives the publisher the right to edit the work.This is extremely important because it indicates who has the last say about what appears in the book.It is standard for a publisher’s contract to insist on the house’s right to change the written material to fit its own editorial style.If the author wishes to have final control of everything in the book, the contract language in this clause needs to be amended to say so.This, however, is highly impracticable for all but a few well-established writers.The best most authors can hope for is that their editor will consult with them regarding changes, including the change of title.
Publisher’s agreement to publish––The publisher’s agreement to publish tells the author when to expect publication of the book once the manuscript is delivered in satisfactory condition.Usually an author can expect the finished book within twelve to eighteen months after the manuscript has been approved, depending of course on the publisher’s schedule and on what sort of editing, typesetting method, graphics, and printing technology are to be used by the publisher on a particular book project.
Royalty and royalty payments––A royalty is a payment made to the author in exchange for granting the publisher the right to publish and sell one’s book.Most book publishing operates with a continuing royalty arrangement calculated as a percentage of the publisher’s income from the sale of the book.The royalty is calculated in different ways, and it is of utmost importance to understand what this portion of the book contract says.Most publishing contracts stipulate a royalty rate of a certain percentage on the net sales of the book.(It could be fifteen percent, or eighteen percent, or it could be any other amount agreed upon by the parties.)This means the royalty payment will be figured on what the publisher receives from bookstores, libraries, distributors, book clubs, and other places where the book is sold.The royalty is based on the price given to these outlets, all having different levels of discount, and the author receives his or her percentage (whatever the contract calls for) of whatever the publisher receives for the sale of the book.The available royalty money is figured, then, on the basis of what the publisher actually receives from the sale of the book to all the various sales channels the publisher uses.Some publishing houses offer a basic royalty rate based on the suggested retail price of a book, with rates for paperbacks commonly a bit lower than for hardcovers.Since publishers almost never sell books at the retail or list price, this system of royalty payment is irregular.Royalty accounts are usually computed annually or semiannually, with payments figured “less returns.”
Subsidiary rights––The subsidiary rights section of the contract will stipulate what rights belong to the publisher and what rights are controlled by the author.These rights are called “subsidiary rights” or “sub rights” because they are usually subsidiary in importance—less important than the primary right an author initially gives to a publisher to publish and sell his or her book.This paragraph in the contract will mention a variety of media, some of which could actually prove more valuable than the right to publish the book in tradition form. There are many different kinds of rights, such as serial rights before and after book publication; dramatic, public reading and other nondramatic performing rights; motion picture rights; translations; digests; abridgements; selections and anthologies; mechanical visual such as microfilm and micropoint; sound reproducing and recording rights, including but not limited to television and broadcasting, phonographic, wire, tape, video and electronic rights; lyric rights and adaptations for commercial use; and so on.If you want to keep, for example, television or movie or audio/visual rights, this should be spelled out in this clause in the contract.
Insurance––The insurance clause is a fairly recent addition to some publishing agreements.All major publishing houses now buy defamation and liability insurance for themselves, and a growing number are now providing similar protection for their authors.
Termination––The termination clause supplies the language giving the publisher the choice of declaring the book out of print when the demand for the work is not sufficient to render its publication profitable.When a publisher declares a book out of print, due to the demand for the book dropping to the point the publisher cannot justify reprinting it and keeping it in the marketplace, the rights in most cases go back to the author.Since the publisher will declare a title out of print usually when a book has failed to sell a specified number of copies within a stated period of time, authors are wise if they can get this number and period of time stated in their contract.The author should ask the publisher to be specific in this area.
Remaindering––Remaindering is a way the publisher can sell remaining copies of a book from the publisher’s inventory at a fraction of the actual cost or worth.Put another way, publishers reserve the right to discontinue publication and to dispose of unsold copies at a low (“remainder”) price.This is almost always a last-ditch effort for the publisher since books are remaindered only after the publisher has determined they can be sold no other way.The publisher is usually required to notify the author if they determine the book must be remaindered.Many publishers will allow an author to require that the book not be remaindered for a designated period of time after its publication.Negotiate that sort of language if at all possible, but remember that all books are subject to remaindering if in the long run they do not continue to sell.
Option––The option clause guarantees the publisher’s right to publish an author’s subsequent book and thereby reap the benefit of a developing readership waiting for the next publication.It is understandable that a publisher who takes a chance on a book project by an author wants to tie that author to the house for a possible future project.The option clause is certainly a forceful one from the publisher’s point of view, because it requires the author to sell his or her next book to the same publisher on the same terms of the present contract unless there is a mutual agreement to other terms.Under this clause, the author may not submit any future book to another publisher until after the original publisher has made a publishing decision.Many authors wish to negotiate away this type of clause, thinking of it in the nature of indentured servitude.
Right of first refusal––In the right of first refusal, the author agrees to allow the original publisher the “first chance” at the author’s next book project.Sometimes the publisher asks that it also be given a second chance—to match a better deal given the author by another publishing firm.A third variant of this clause concerns “capping rights” or the “right of last refusal.”This gives the publisher one last chance to make a deal with the author by taking into account all other publishers’ offers and trying to top them.The terms of these rights to first, second, and last refusals, including the response time a publisher has to make a decision, are open to negotiation.Negotiation is easier under a right of first refusal clause than it is under an option clause.As an author, you would be better off negotiating the removal of this clause or signing a right of first refusal clause with a short publisher’s response time.
Assignment––Assignment is contained in all publishing contracts.It protects both the publisher and the author should either wish to transfer the contact rights to another party, which transfer of rights has to be in writing.Assignments can occur when an author designates that the income from a book is to be paid to a creditor, for example, or when a publishing company sells its book list to another publisher, or when the company itself goes out of business.Usually a publisher keeps the right to make assignments unilaterally, but when the author wishes to assign rights or royalties to a third party, the publisher typically reserves the right to agree with the assignment for it to be valid.
Infringement of copyright––This clause on suits for infringement of copyright is related to the warranty and indemnities clause discussed earlier.Both have to do with copyright infringements and possible legal action taken against the author or the publisher.Generally, a copyright infringement suit is brought in the name of the person owning or controlling the rights that have been infringed, and it is brought against the person thought to be infringing the rights.What is important in this section is to see if the author or the publisher, or both equally, takes the financial burden if someone makes a claim of infringement of copyright on the work.As the author, you should ask for an infringement provision in your contract that limits your financial liability to claims considered by a court.Otherwise, you could be held liable by the publisher for legal costs involved in claims that are bogus.Often, a publisher will withhold royalty payments pending the outcome of a lawsuit. You need to know how much of the entire royalty is to be withheld and for how long.Also, find out if you are liable for any agreed-upon amount in the event that a judgment is made for the claimant.
Right of publicity––A promotion clause is typical of publishing contracts.The right to use an author’s name is implied in the other terms and conditions of a contract, though what is included in this section depends on the size and kind of publisher you deal with.Many larger houses commit large sums of money for publicity and advertising campaigns, including author tours, media appearances, and bookstore signing parties.But all houses, however large or small, will want to promote an author’s work by using the author’s name, photo, and biographical summary.The typical publishing contract will give the publisher this right.When signing a book contract, the author bestows on the publisher the “right of publicity,” giving the publisher the right to decide how and when to use the author’s name in the promotion of the book.If you do not wish to give your publisher promotional rights without restriction, this will need to be so stated in this section of the contract.Some publishers wish to require the author to assist in certain promotions.In that case, the contact should clearly state whatever obligation in this regard is required and which party bears the expenses.If there are some things you definitely would or would not do in the publicity and promotion of your book, these should be spelled out.
Libel––Libel has to do with the conflict between the public’s right to know and the individual’s right to privacy.Interpretations do differ, and a great deal depends on where the person is who is suing, and where the material is distributed.This is not a federal question because state law controls in the area of libel.
Libel per se––Libel “on the face.”This is a charge of libel without additional proof being offered.Several things apply to libel per se, such as the establishment of injury to a person’s trade, business, or profession, exposing someone to the scorn and contempt of others, deterring a third party from associating with you, and imputing guilt of a crime, fraud, or dishonesty.
Public official––This official is one who takes the initiative in inserting himself or herself into the public spotlight.In libel law, usually there is more latitude regarding this sort of person.
Public figure––The definition of a public figure is usually determined by the courts, and there is almost always a lot of latitude in interpreting what or who a public figure is.Anyone at a given time could be a public figure by doing something significant or newsworthy.In book work, the judgment is easier than in magazines, so book publishing is held to a higher standard since there is more time to check the facts and verify accuracy.
Product liability––There is a possible liability for formulas, recipes, legal advice, healthcare advice, and so on, in published books.Therefore, it is wise to use disclaimers for these things to get off the hook for product liability.Thus, the disclaimer below:
NOTE:In no way is GoodEditors.com offering legal advice, and this does not take the place of an attorney’s expert advice based on the latest developments in publishing law.Consult an attorney experienced in publishing law, a literary agent, or a professional editor for specific applications to an individual publishing venture.Most of the terminology and definitions used above have been excerpted from The Little Handbook to Perfecting the Art of Christian Writing by Leonard G. Goss and Don M. Aycock (Nashville: B&H Publishing Group, 2006).Available at Amazon.com. Used by permission.