A
few months ago a publishing contract for a nonfiction book came rolling out of
my printer. I held a 9-page affirmation
of my project’s worth. But I knew I had
to seriously consider the terms before signing.
Studying
the publisher’s boilerplate contract, my agent first negotiated down the number
of required pages and allowed for more free copies for me, her, and my
photographer. She limited the type of
book we’d need to bring to the publisher as first option and shortened the
number of days they'd have to make their decision. She changed the royalties from 10% of net
receipts to 10% up to 5,000 copies and 12 1/2 % up to 10,000 and 15% after
10,000 copies sold. She bought me two
extra months to finish and turn in the book as well as a couple of extra days
to correct the galley proofs. She
doubled the amount I’d be paid to revise or update the book. She asked that I have cover and design input,
and she reserved the film, dramatization, and TV rights for the agency.
Then
I had a go at it. I don’t speak
legalese; but there were quite a few items in the contract that concerned
me. The index was to be compiled or paid
for by me; I’m far from skilled in that area.
We had them nix that clause so they could do that at their expense. I bargained them down further on the word and
photo requirements. I took back the
rights to create (and benefit from) apps or enhanced eBooks and to blog about
the topic. I raised the percentage on
eBook sales from 5% to 20% on the first 500 sold and 25% thereafter. Instead of the photo allowance being paid
only after all the work was turned in, I asked for ½ of it to be dispersed on
signing. My acquiring editor didn’t put
a fight up on any of these changes.
But
there was more back and forth about this problematic (and frankly unfair) clause:
“Sales of prior editions shall not be cumulative with sales of any revised
edition for purposes of calculating royalties.” Given the fact that my
percentages were to increase depending on how many copies sold, starting the count over with
revised editions would put me back in earnings per book despite it selling well
enough to go into those new editions.
I
still felt uncertain about verbiage I didn’t understand under Warranties and
Indemnity, Accounting, and Reversion of Rights.
By this time my agent seemed tired of the back and forth demands she
was placing on this editor whom she worked with on other projects and, no doubt,
didn’t want to alienate. So I took it to
transaction attorney extraordinaire, Susan Spann. For a nominal fee, she took a look at the
contract.
Despite
all my efforts to catch items disadvantageous to me, she found even more
troublesome clauses, some of them ones she felt were onerous enough to be deal
breakers. I wasn’t sure whether to be
angry at the editor, my agent for missing them, or myself for being so naïve
not to have noticed them.
Susan didn’t think it was a good thing
that the publisher could put ads inside the book without my consent, that they could
withhold royalties due on my book for amounts owed on any other works I had
with them, that “out-of-print” was tied to sales instead of the more vague “out
of print” status, that the publisher could at any time sign its rights and
obligations to another entity, that the publisher would have the right to use excerpts,
up to 15, pages, from my book in others in their inventory, paying me only $100.
What turned out to be the most
important change Susan suggested was that the publisher NOT be allowed to
finish the manuscript at my cost if content wasn’t acceptable. That they would only have the right to cancel
the contract.
It was never said formally, but I
suspect that change might have been key to my being able to cancel the contract
when my photographer backed out after I had already signed. I canceled without an obligation to pay their
costs to move forward with the project.
The lesson? Have a capable attorney
familiar with publishing contracts take a look before you sign. Thanks Susan Spann! --- Inkpot
