Sunday, March 16, 2008

Part II Of A Look At Publishing Contracts

We start today the same way we did yesterday with the disclaimer. I AM NOT AN ATTORNEY AND AM NOT MAKING ANY ATTEMPT TO GIVE LEGAL ADVICE. I recommend a writer not enter into a publishing contract without an agent or literary attorney.

I had started yesterday's post during the time between the ending of my RWA chapter's meeting and needing to leave to attend a play last night. When we got home at 11:00 PM after a lovely evening, I finished the post and tumbled into bed.

This morning, I re-read that post, cleaned up two dangling clauses and clarified a couple of points.

In doing a search for help with today's post, I found this one here by Nathan Bransford, which I think is a good jumping-off place for today.

We're going to pick up where we left off.

VIII. Statements and Payments. This section lays out how often statements of royalties shall be rendered and when the payments associated with those statements shall be sent out. It's pretty common that if the royalty check would be under $25, the payment will be withheld and the amount due carried forward.

IX. Copyright. This paragraph contains the assurance that the publisher will include notice of copyright in each edition of the work. It also determines who is responsible for seeking copyright registration.

This is one of those places where New York contracts may differ substantially from e-publishers or small independents. New York publishers typically apply for copyright registration for the work in question in the author's name or pseudonym. Other publishers may shift the onus for this task to the author.

Agent Jonathan Lyons did a great post on copyright issues last May here. Please pay particular attention to the issue of registering that copyright within ninety days of initial publication. This is important. If you are registering your own copyright, make certain you do so within that three-month period of your book's release.

X. Copyright Infringement. This paragraph indicates that either the publisher or the author may take action in the case of copyright infringement or may choose to go forward jointly. If only one party goes forward, that party shall bear the expenses involved and shall reap any recovery.

I'm going to skip over the next few pages because there are a myriad of small paragraphs that follow dealing with subjects such as:

  • Author's property: the original manuscript and proofs
  • Author's copies: specifies the number of free copies for each physical edition the author will receive
  • Contracts with others: requirement that the publisher let the author know of any contracts the publisher enters into related to this contract
  • Use of the author's name, likeness, photograph and bio
  • Motion picture and television tie-ins: If the author retained these rights, s/he shall use best efforts to permit use of the book's title to benefit the publisher
  • No competing work: Author agrees not to harm this work's sales by issuing a competing work
  • Termination of the contract by publisher
  • Bankruptcy and liquidation by the publisher
  • Rights on termination: This covers the author's rights upon termination of either the contract or the copyright
  • Necessary revisions of the work

XI. Out of print. When the work shall be considered to be out of print. This is becoming an increasingly important paragraph. Traditionally, when a book's sales dropped below a certain threshold, the author could send a written request for reversion of the rights.

With digitization and POD technology, a publisher can try to claim that the book is still available for sale if there is an obscure website somewhere that lists the book. Remember when Simon & Schuster tried this last year? Read about it here.

XII. Option on Next Work. This "options" clause is where the author agrees to grant the publisher an option to publish his/her future work. This is an important clause. Typically, the publisher will define it as broadly as possible. The author or his/her representative will seek to define it as narrowly as possible.

If you need evidence of how risky this clause can be, please read my post from last April here.

XIII. Agency Clause. This paragraph relates to the author's relationship with his/her agent. All legitimate publishers honor the agent/author relationship, and this clause acknowledges that the agent is empowered to act for the author.

XIV. Notices. Describes how the parties involved in the contract will communicate with respect to the notices required by the contract.

XV. Reservation of Rights to Author. Language that any right not granted to the publisher by this contract is reserved to the author.

There is additional language defining terms, establishing how waivers or modifications may be done or assignments made, and establishing the state whose laws will be used to interpret the contract. I'm not going into what is essentially typical legalese for all contracts.

My RWA chapter held its 25th anniversary celebration yesterday. Author Linda Castillo was the speaker. I heard Linda speak for the first time in 2004 at a Sisters-in-Crime meeting. She is a delightful speaker.

Linda talked briefly about contracts. Her comments reminded me to say something about joint accounting, or what is also called "basket accounting." This applies to situations where a writer has a multi-book deal. If basket accounting is invoked, the author does not receive any payment beyond the advance until all books in the deal have earned out. This can take a reeealllllly long time. Go here to read Joe Konrath's post from 2006 on the subject.

I hope these two posts are helpful to you in understanding publishing contracts.

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