Publishing agreements: How to get the best deal

 

This article will be useful reading for any author of any type of work – poetry, romantic novels, journals, magazine articles, and literary criticism and so on. It will also be useful reading for publishers, small and large.

 

There is often a conflict of interest between publishers and authors. Further, publishers often have the upper hand because they are the ones ‘in businesses. Unless you are a famous author, you probably think you have little say in the terms of the agreement. Often this is the case – your publishers present to you their ‘terms and conditions’, you duly sign so as to get your book published as soon as possible.

That is a mistake. Before you choose a publisher, and before you sign their terms, try to learn about the publishing business enough so that you can press your points and get the right deal for you. If you are the next big thing in writing, a half percent royalty difference will make all the difference! Look at it differently – you can use that royalty rate as bargaining power to negotiate on other, equally as important matters.

 

What do you want from the agreement? Learn what is negotiable and decide what the best outcomes would be for you. Then decide how far you are willing to budge on each point. If you give more royalty, what do you want in return? If you learn what the other part wants, in this case, the publisher, you know their weaknesses.

 

• Freedom of choice of journal in which to publish their work;
• Option to self publish (posting on own web site or departmental web site);
• Option to republishing;
• Right to be named as the author on the work;
• Maintain the integrity of the work;
• Protection against plagiarism;
• Protection against unlawful copying;
• Protection against infringement.M

 

• Legal right to publish;
• Establish Editorial selection process;
• Quality control through competitor review;
• Continuing availability;
• Facilitation for discovery by search engines;
• Making derivative works;
• Translations;
• Anthologies;
• Formats for users with special needs;
• Changing the appearance of the article;
• Sublicensing to others to republish all or part;
• Permissions/reprints service;
• Maintain the integrity of the work;
• Protection against plagiarism;
• Protection against unlawful copying;
• Protection against infringement;
• Recovery of expenses/return on investment;
• Liability and indemnity exposure.

 

A deal is made upon the basis of who wants who more and the best deals are made by those who have independence. Keep in mind that what each side will be able to achieve within such negotiation is of course up to the relative skills of the negotiators, their vision or lack thereof, and the ability of each side to say "No."

 

 

Rights to the work are fully negotiable. Of course at the outset, they belong to the author. However, the publisher will almost always seek to obtain all rights to the book. This sounds unfair... But not necessarily – from an authors’ point of view, at least all the rights exploited by one source only. But why should you give up all your rights? If you are in a good bargaining position, you may want to retain electronic rights, foreign rights or any other of the rights that are involved in the creation.

 

If you do give up your rights, be sure that you get paid for the exploitation of all rights.

 

If the copyright is in your name, the agreement should not only reflect that the copyright is subject to the contract but that the publisher retains the exclusive right to administer the rights so granted to them.

 

Ensure the contract includes paragraphs dealing with what happens to the rights in the book should you breach the contract. It is not enough to merely say that the contract terminates. The contract should state what happens to the rights in the book in those events. Do the rights revert to the author? Do they remain with the publisher?

 

Both parties will want to be able to have the final say. Negotiate carefully. How important is it to you to have the book looking like you envisaged? If you do hand over this right to the publisher, make sure the publisher establishes some sort of marketing plan in advance and that plan is part of the contract. That way, you have a line of recourse if the publisher does not promote the book as originally discussed.

 

Most books involve not only original writing but quotes from other sources, photographs taken by third parties, and so on. Of course this material must be licensed by an agreement in writing from the owner of the rights. Try to give this responsibility to the publisher so that they have to seek out that license and pay any license fee rather than you.

 

You may choose to accept this responsibility in return for being able, for example, to have the final say in editing decisions. If you do, make sure the publisher knows that it is also in their best interests to provide a form, or agreement for you to use in obtaining such licenses. This is because they will likely be joined in any litigation that may result from the failure to obtain licenses.

 

You decide this one by careful negotiation. You must work out: will the royalties be paid on the retail/cover price of the book or the net income received by the publisher for sales by the publisher? If on "net income" how will that be defined? What are the reserves and when will they is liquidated? How frequently will you pay the publisher?

 

The publisher will want to protect its franchise in this book. You, the author, may want to exploit the potential for spin offs and write competitive books. Of course the best way is not to write competition but to write books and other material that complement the book. That way, you don’t lose out on a sale by one in favour of the other – instead, the customer buys both. However, if you do write competition, be careful how you do because it can have a significant impact upon both parties' rights.

 

You will want the right to revise and edit and prevent the publisher from doing so and bringing in another author to replace the original you. You will also want the right to negotiate better terms on such revisions and revised editions on the theory that it was the success of the original book that created the market for the newer version.

How will royalties be calculated on these newer versions? They could be looked at as a new book and therefore any escalating royalties will not be applicable. Or they could be seen as sales of the first book and therefore the sales thresholds included? The publisher will want just the opposite protection, seeking to be free to put out as many revised as possible so as to free themselves against claims made by you in order to make more money on the newer editions.

 

Of course you never want to get to the stage that warranties become an issue. The aim of a watertight agreement such as the publishing agreement from Net Lawman is that you avoid litigation in any event. However, it is important to get the warranties right and to be clear on what they cover. That way, should the worst happen, you know the position.

 

• Copyright infringement – which is to blame?
• Defamation – will it be against you or the publisher?
• Invasion of privacy – who is to pay the price?
• How broad will the author's warranties and indemnities be?
• Who is covered by them?
• How much protection is given to you in the event of such claims?
• Do the indemnities become applicable upon a claim or only where there is adjudication?

 

This is easy to get right yet even easier to overlook. Be sure that you know what events trigger termination. What are your rights in the event of termination? Can you get a complete list of outstanding licenses and deals made by the publisher? Who owns the rights to the work in the event of termination?

 

What is important here is that you approach the negotiating process with both knowledge of your rights as well as a broad vision about what may happen to the book over the course of its publishing lifetime.

 

The Net Lawman publishing agreement covers all bases. You simply delete what you do not need. It is a brilliant starting point for authors because you can compare your agreement with the one that your publisher will no doubt provide you with, at the same time as the pen to sign it. The key to success is careful negotiation.