I’ve had a number of people write to me and ask something along the lines of,“How can I negotiate my own contract?”
Okay, let’s get something straight right off the bat: You probably aren’t ready to talk contracts with a publisher. Just admit it right now. You spend your time plunking away at a keyboard, and most of what you learned about publishing contracts came in a 45-minute workshop at some writer’s conference, or possibly in a book you barely understood, entitled something like Understanding Publishing Agreements in 6 Easy Lessons. If that’s the case, let me help educate you: When you start discussing contracts with a publisher, you might want to remember that he (or she) has a team of professionals backing him (or her) up. There’s an entire group of people whose professional existence is to make mincemeat out of you. Lawyers, accountants, bookkeepers — even the assistants probably know more about contracts than you do. Have I scared you yet? I hope so. Because I’m not trying to sound superior — I’m trying to get you to understand how important a contract is in your life. A publishing contract is a legal document governing everything about your book for as long as it’s in print… so you don’t want to sign something without having read it carefully, and without knowing what you are signing. There are going to be clauses that sound like they were created by lawyers for whom English isn’t their first language. There’s fine print. There are terms used that are completely foreign to you. And while the publisher isn’t necessarily trying to force you into signing a bad deal, he (or she) is in business to get the best deal possible and to make as much money as they can.
Think of it as going to a garage sale and finding a great book — a leather-bound, first edition. Maybe it’s signed by the author. Do you feel it’s your responsibility to tell the owner, “I know you’re only asking fifty cents for this, but you could sell it on EBay for sixty-five dollars”? Or do you just buy the book (thereby making the seller happy) and take it home, knowing you got a great deal? Well, that’s the approach a publisher is going to take. This is a business, not a charity. They’re going to approach it professionally, and assume you’ll do the same. It’s why most publishers are going to encourage you to locate a good agent… but whether you have a good agent or not, you should still know some of the basics of publishing contracts. So let me offer some tips — five things you ought to know before you put your John Hancock onto your next legal document. Mind you, these are not the only things to know (and I’ll do more of these “contract” posts over time), but this should at least get you started…
1. The Grant of Rights limits what you’re licensing to the publisher. You own your words. But you’re granting a license to your publisher to produce and sell them in some form. The Grant of Rights details what forms that can take, and you should take the approach that it’s going to limit the forms, not extend them. So if you see a phrase like “this includes every possible idea now known or hereafter invented,” you might want to ask for some clarification. Because anything not specifically granted to the publisher ought to be viewed as being retained by the author.
2. Don’t throw in every right imaginable. Publishers are in business of selling rights, so they’re going to want all rights. But be aware that once you grant a right to a publisher, you should not expect to get those rights back until the work is out of print. So if you, say, grant dramatic rights (to turn your novel into a feature film or TV movie), you may want to make sure the publisher has a track record of actually selling those rights. I was once asked by an author to approach a CBA publisher and ask for the movie rights back, since the author’s son had begun working in Hollywood. The publisher had owned those rights for 16 years and, so far as I knew, had never sold dramatic rights of any project to a producer. Yet when I asked for them, I was told a firm “no” — and then was given the explanation that “the house is still considering pursuing the sale of dramatic rights on that property.” After 16 years? With no track record of ever having done so? Give me a break. And yet, the author was stuck. They’d signed the contract, granting them to the publisher, so the author had nobody to blame. I’m not saying you should never give dramatic rights — I’m just encouraging authors to know what they’re signing.
3. Make sure you define what a “book” is. A sneaky thing you’ll sometimes find in contracts is the notion that an actual “book” doesn’t have to exist for the publisher to maintain the rights to your work. Some contracts state that the publisher has a license to those rights so long as they offer the work for sale “in some form.” In other words, if the publisher keeps the book on disk, and it’s available in a “publishing on demand” format, they can claim the work is still technically theirs. You may want to clarify what constitutes a book, what constitutes “in print,” and what happens should the publisher not maintain a regular bound, ink-on-paper sort of book available for sale to bookselers.
4. Beware extra author expectations. Occasionally a contract will start talking about things that don’t seem germane to your novel. It will lard up the wording with notes about an index, photographs, maps, your ancestral tree, etc. If those simply don’t have anything to do with your particular book, ask why they’re there, and why they can’t be deleted. And if they ask you to buy a certain number of copies, walk away. Or at least walk away long enough to talk with someone who knows what they’re doing.
5. Ask for the ability to inspect the financial records. If you are shown a standard boilerplate contract, it may not include an author’s right to inspect the publisher’s books. It’s very reasonable to include wording in a publishing contract that says the author can be allowed, once a year and at their own expense, to have an accounting firm examine the financial records. You probably won’t ever actually use that right, of course, but that’s what a contract does — it covers the unusual, the exceptions, and the hope-nots.
Please understand that I love and trust publishers. I want to help them make money so that they stay in business. I want nothing more than for them to sell books by the boatload. So my notes here aren’t to be taken as a condemnation of publishers — they’re just tips; things an author should keep an eye out for, so that everyone knows what’s being agreed to. I’ll share more in a future post. If you’ve got contract questions, feel free to email them to me.