When Considering A Book Contract,

Watch Your Backside

Book Contract Terms – Literary Agencies

When a literary agent offers you a contract, seriously consider having an entertainment attorney review it. This will ensure that you are protected even though most agency agreements feature standard clauses.

These include authorizing the agent to act in your behalf regarding worldwide rights to the book, permitting them to solicit offers for the rights to the book from various publishers, and the right to represent you with your next book. In return for their services, the contract will specify their retention of 15% of your earnings from the book based on any advance offered by the publisher and royalties from domestic sales (20% for foreign).

If possible, be certain to restrict the agent’s representation to no more than your current book and the next one. Tying yourself to the agent for an extended period of time may prohibit your switching agents in the future. Also watch the expenses section of the agreement to make certain that you are only being charged for incidental costs (copying, mailings, etc.) for promotion of the book to publishers. If possible, put a cap on the amount that may be spent without your written authority.

As stated before, under no circumstances will you pay the agent for reading fees or to represent you. If he or she demands same, say thank you and move on.

An example of a literary agent agreement is featured in the Appendix. Your agreement may differ, but the sample will permit you to understand a basic contract.

Book Contract Terms – Publishers

The literary rights transferred (the Copyright Act requires any and all transfers to be in writing) from the author or poet to a publisher will vary with each book. A sample publishing agreement with tips is featured in the Appendix.

Most publishing contracts contain standard language. Terms are negotiated, but publishers are less likely to be flexible when a first-time author or poet is involved. Remember that the most important thing is to be published, and if there is no advance and the royalties are minimal, so be it. You can look forward to earning revenue on a future book.

Rights extended to a publishing company can include the English speaking countries, specific territories, or the world. If possible, transfer as few rights as possible depending on the advance offered by the publisher. Domestic rights and foreign rights can be separated or negotiated together. If you do not have an agent, seek advice from an entertainment attorney.

Publishers will normally access literary rights to the hardcover (cloth) edition of the book, paperback rights, e-book rights, audio rights and so forth. Reserve the motion picture rights if possible. Owning them, as mentioned earlier, can be worth substantial revenue at a later date, provided the work is appropriate for being adapted to a motion picture. If a film producer expresses interest in those rights, contact an entertainment attorney.

Revisions

Special attention must be paid to the “Revisions” clause of any publishing contract. Working with an editor at the publishing company, you will revise the manuscript in preparation for release.

Each draft will be reviewed, but at some point, the publisher will okay the revisions. If you then decide to revise once again, the “Revisions” clause may dictate that you pay for costs incurred by the publisher to make the changes. To avoid this cost, attempt to negotiate an agreement absent this provision.

For certain types of non-fiction books, the word “revision” may mean something totally different, namely the preparation of a new, revised edition of the book. This would occur after a period of time, assuming that the book contains information that needs to be updated periodically. Including a clause in the contract that guarantees you will be hired to provide updates or make revisions is suggested.

Photographs/ Quotes

Obtaining the rights to book photographs can be expensive. The AP (Associated Press), Reuters, and other outlets such as stock photograph houses charge expensive fees. Many publishers assume the cost, but you should check the “Photographs” provision to make certain you are not responsible.

If photographs are an essential part of the text of the book, you are generally held responsible for securing permissions to use the photographs. The cost of obtaining permission may be included with the advance paid by the publisher. Publishers normally always pay for cover or jacket photographs.

Fees charged for photographs utilized in an “insert” section of the book are not as expensive as those proposed for the front or back jacket covers. If possible you, your agent, or your attorney should attempt to gain the rights to use the photographs for both the hardcover and anticipated paperback editions of the book.

A publishing agreement should specify the party responsible for costs if you are requested to take photographs. Camera and film expense can escalate.

If you self-publish, make certain you have the right to use photographs. A simple “release agreement” can be drafted to protect your interests.

Approval to use quotes from other printed material can be garnered through similar agreements. If you use quotes sparingly, provide the source of the quote and a mention in the bibliography. If you intend to use more than a few sentences of text at a time, a release from the author, poet, and their publisher may be required.

Free Books/Purchased Books

Publishers provide the author or poet with free books. The number will vary. They can be sold or given to friends and family.

You may purchase books from the publisher at a discount. It ranges from 40 to 55 percent. Many companies will invoice you; others require a credit card at the time of purchase.

Self-published authors and poets are free to distribute free books as they wish. Keep track of the number given away for tax purposes.

Next Book

Most publishers will include a “next book” clause in the publishing contract. Having invested their resources in your book, they expect you to be loyal. To guarantee this occurs, language is drafted requiring you to submit any material for a new book to the publisher. They then have a set amount of time to consider the book idea. If they decide to commit, a new agreement is negotiated in good faith. If they pass, you are free to submit the material to other publishers.

Demand that language inserted provides the publisher with “a right of first refusal based on fair negotiation.” It requires the publisher to commit or pass within a short period of time.

If you self-publish and decide to employ an independent distributor to handle release of your book, be certain to restrict the representation to one book. This will permit you to seek other outlets if you are not satisfied with distributor performance.

Final Approvals

Attempt to gain final approval of title, subtitle, size and placement of cover print, front and back cover photograph or illustration, book text, author jacket biography and photograph, the photograph insert, font size and print style, and appendix materials. This may be difficult to gain, but discuss these details with the publisher or have your agent or attorney do so.

A clause ensuring no revisions will be made to any aspect of the book after you have “signed-off” is advisable. This guarantees that no editor at the publishing company will alter the text prior to the book being forwarded to the printer.

When possible, require the publisher to designate the release date for the book. Many publishers include a clause providing their right to publish the book within eighteen months of the time a final manuscript is approved. Shorten the time if you can. This is especially important if the book is tied to an anniversary or event that will provide free publicity for the book.

If you self-publish, provide enough time from the date you receive your completed book from the printer to the release date. Allow sufficient time for delivery of the book to outlets before your publicity campaign begins. Proper planning will guarantee that your book is released with a professional tone.

Important Book Contract Factors

In addition to the issues discussed above, the book publishing agreement should address the following issues:

- The agreed-upon length of the manuscript (flexibility is important)

- Manuscript or poetry collection delivery deadlines

- Royalty amounts (attempt to gain a “gross” definition)

- Royalty statement dates (quarterly basis)

- “Reserve account” amounts (publishers retain a certain percentage of revenue to cover cost of returns)

- The agency commission clause (normally 15 percent, 10 percent for television/film agents)

- Author or poet’s right to audit (every six months)

- Out-of-print provisions (rights revert to author if the book is out of print for a specified period of time)

- Dispute resolution clause (arbitration alternatives may be advisable)

Literary agents and/or entertainment attorneys can advise you regarding these matters.

References

Several reference books exist regarding protection of author’s or poet’s rights. Among them is Kirsch’s Guide to the Book Contract: For Authors, Publishers, Editors, and Agents.

Jonathan Kirsch’s book is helpful, but you are encouraged to seek advice from competent literary agents or entertainment attorneys. This guarantees that you will abide by Mark’s Step #10―When Considering A Book Contract, Watch Your Backside.

Summary

Remember the essential elements of a publishing contract—length of manuscript or collection of poetry, revisions, photographs, free books, purchased books, next book, final approvals, and delivery date.

Obtain professional advice through a literary agent or entertainment attorney regarding agency or publishing contracts.

Consult Kirsch’s Guide to the Book Contract.