Publishing Contracts: What Writers Should Know

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Congratulations, you did it! You landed a publishing contract! You’re about to get paid to for your writing. Can you believe it? People actually make money doing this! Pat yourself on the back, but once the euphoria wears off, roll up your sleeves and read the contract carefully.

Publishing contractPublishing contracts are boring and hard to read. But you must persevere. If you don’t, you could end up signing something you don’t agree with. Here is a walk-through of some things you’re likely to find on a publishing contract—and some more unusual stuff, too.

First, make sure the nuts and bolts are correct. Read like an editor.

  • Is your name correct? It better be. This is probably the name they have in their database, and having a wrong name in a contract may cause your name to be wrong on the finished product. Hard to believe, but it does happen. (After first mention, you will probably be called “The Author” and the publisher will be called “The Publisher” in the contract.)

  • Are the dates correct? Check the date the contract was issued, because this can be important if legal issues arise. Check the due date(s) of the work, the date by which you should be paid, the to-printer or live date, the publication date, and any other dates you see. Now, stop and write them all on your calendar! (See more about due dates later.)

  • Is the title the one you agreed upon? If not, is it often first listed as “Working Title” with the understanding that it will change? (Most contracts refer to the title only once, and then use “The Work” after that.)

Now, you’re ready to read the complicated stuff. Every publishing contract is different, but you will find some or all of these things in your contract.

Publishing Rights

Publishing Rights clauses cover the license to publish granted by the author to the publisher, usually about a specific Work. This will probably take up the bulk of your contract. Publishing rights include things such as:

  • Where can the Publisher publish the Work? In one country? Worldwide?

  • In what formats? This will outline whether the Publisher has both electronic and print rights. For electronic publishing, it will also cover whether the work can be published on a primary website, or on websites that partner with the Publisher.

  • For both print and electronic publishing, the clause should cover whether the Publisher can only publish the work in its entirety or if they can break it apart and publish it in pieces.

  • Any remaining publishing rights retained by the Author should be clearly outlined. If no rights are retained by the Author at this time, that should be clearly stated. (Author rights will vary drastically depending on whether you are a freelancer working for hire or a royalty-based author. More on this later.)

  • Copyrights are addressed here as well. This is different from publishing rights. The copyright owner owns the intellectual property of the Work.

Publishing Term

Next, let’s talk about Term, which means how long the agreement lasts.

  • In this section, the Publisher should state how long it will retain the rights as stated above.

  • The contract will also cover renewal and cancellation terms here. The Publisher will state their standard policy to renew or discontinue a published work. The Author, too, will have rights. These may include retaining rights to a published Work if the Publisher discontinues a Work. In some cases, the rights automatically revert to the Author. In others, the Author may purchase the rights from the Publisher, and may also purchase remaining printed copies. This can vary wildly from one company to another, so do your homework. If you feel like a contract is taking advantage of you, talk to an attorney, or someone else who has dealt with publishing contracts.

Terms of Payment

MAKE SURE you clearly understand these, even if you have to keep asking for clarification. There are an infinite number of potential payment arrangements. Needless to say, your experience and expertise will give you more clout as you negotiate payment agreements in your contracts.

  • You may receive a one-time flat fee, in which case you are a work-for-hire: a freelancer, essentially. You will agree upon a price for a work, you will complete the work, and you will get paid. End of story. But, there are many ways to calculate that price. Are you getting paid by the hour? By the page (common for both editors and writers)? A project fee? If you are given a choice, it helps to know if you work quickly or slowly, not so that you can take advantage of the Publisher, but so you can accurately gauge how much work you will do in a given amount of time, and come up with a fair fee for both of you. You do want more work, so being fair is in everyone’s best interest. (Note: If you are just starting out and you are purely a freelancer, a sole proprietorship, or a corporation, under current law in some states, you have to pay quarterly estimated federal taxes. This can be a huge hassle for writers, whose work can be so incredibly unpredictable. You need to talk to a local tax expert about it!)

  • You may receive an advance, then royalties. The advance may be a flat fee with royalties added on top. Or, after you are paid an advance, you may not be paid until sales are such that royalties have equaled the advance you were paid. (This is often called advance-against-royalties). (See more about royalties, next.)

  • You may receive only royalties. Any royalty agreement requires you, or your agent or accountant, to keep up with the money carefully. Not only do you have to make sure you are paid in a timely fashion (quarterly, annually, monthly, or whenever your contract states), you also have to review sales reports from the company and make sure that the payments they submit match up with the net profits they are taking in. This is not fun unless you love to count beans. I do not love this. Hopefully, you will!

  • Finally, the contract should say when you will receive payment, and how—a check in US dollars every year, for example. Unless you are getting a flat fee or an advance, no amount will be listed. If there is an amount, check it. If there is a percentage for a royalty, check that, too!

  • One more thing: If you are receiving a royalty and the publisher has rights to chop up the work and publish it in parts, you should receive a pro-rated royalty. It may be a flat percentage, or it may be equal to the percentage of the work published. How the royalty is calculated needs to be explicitly stated.

Working Agreements

In addition to terms of payment, another area that should be covered is basic working agreements. These are the parts of a contract that unfortunately have to appear to keep things from getting ugly if something doesn’t work out.

  • First, there will probably be a parachute clause of some sort for the Publisher. Publishers usually reserve the right to cancel contracts. Why? Maybe a new creative director is hired and she has different priorities. Maybe there are staffing cuts and they don’t have the manpower to work on your book. Maybe someone else publishes a similar work that makes yours redundant—you may never know the cause. But, if you have a clause in your contract that gives the Publisher the right to cancel the agreement with no warning, make sure you ask for a kill fee to be added, if there isn’t one already. A kill fee is an amount paid to an Author when a contract is cancelled. This ensures that the work you do on behalf of the Publisher isn’t all for nothing.

  • As for the Author, you have extra work to do. There may be rules and regulations for how to contact the publisher and editors. You may be required to have meetings at certain intervals, or turn in pieces of the Work ahead of time, and you will probably have to proof the book before publication.

  • There should be something in the contract about how you will be credited for the Work, and what information you agree to allow to be made public about you. You will almost certainly be required to submit an Author bio.

  • Speaking of Author bios, you can’t be a reclusive author any more. Now you have to market your work. You may be required to give interviews, maintain a website, attend conferences and conventions, and do legwork to publicize your book. Get ready to face the world.

  • Penalties are also going to be listed. There will probably be penalties for you if you are late with the Work. (Remember I said there would be more about due dates? Well, some publishers will take away a percentage of your earnings if you are late. If something happens and you can’t make a deadline, start talking to your editor as soon as that seems likely.) Publishers can also list penalties if the Work is deemed to be unsatisfactory. If you do not fulfill any other terms of the contract (and there can be plenty of them—see below), there will be penalties. These can range from fines, to termination of the contract, to legal action on the part of the Publisher.  Ah, yes…see the next bullets for how they can sue you.

  • You can get in trouble for a few things that will be listed in the contract. The obvious thing is plagiarism. It is exceedingly easy to check for it now—just copy and paste chunks of work into a browser. If you plagiarize, you will get caught. Don’t do it.

  • Also, there will be a whole clause detailing about how you will not hold the Publisher responsible if they are sued because of what you wrote. This is a scary part to read. It is often called the Indemnification clause. Say you write a biography about a living person and you write something damning that is also completely untrue. If it gets published, and the subject of the biography sues for libel, by signing the contract you are saying that you will accept legal and financial responsibility for the attorneys’ fees and subsequent judgments. THIS IS THE CLAUSE YOU NEED TO READ WITH SOMEONE WHO KNOWS WHAT THEY ARE DOING! It is a standard clause, but a very important one.

  • Some publishers want to keep you all to themselves. They may do this in two ways. They may include a first right of refusal clause that states that if you have another book idea, they want to see it first, before you approach other potential buyers. Unless you feel your Publisher does not treat you well, consider it, since it can lead to more work.

  • Alternately, especially if you work for a Publisher who publishes in a specialized field, a non-compete clause may be tucked in there. This is not that common for freelancers, or for authors, either. But, if you are commissioned to write a technical manual in a specialized field, like pharmacy or computer science, then you could expect to see it. Think long and hard about this clause. It will prevent you from making a living writing for any other company for usually at least one year. If you have to sign one, try to add other things to compensate, such as a contract work agreement, or try to narrow the area in which you cannot publish. Again, consult an attorney about this type of clause.

  • Other stuff: Publishers can have all kinds of agreements with their Authors. Your contract will be specific to you. Get professional advice, always.

The End of the Line

The last parts of the contract will be things like notices (how the publisher will contact you), statement of compliance with the law, and asking for your signature.

Well, that’s about it. This explanation is probably longer than the contract you will read! If you see anything that looks out of place, ask questions. Ask your editor whom you should talk to at your publishing company (most likely their legal department, unless they’re a tiny publisher); ask an attorney, or your agent. Especially if this is your first contract, you need to know this stuff. Your contract will be personal to you, and your company, and every contract is different. This is dry-as-dust reading to most authors, and it’s many a creative person’s urge to skate through it, but you need to know this stuff. No shortcuts. So, good luck, and happy contracting!

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One Comment

Christian Jorda

A publishing contract is a legal contract between a publisher and a writer or author (or more than one), to publish written material by the writer(s) or author(s). Now it’s time to argue about it. Here is the whole series of posts on how to read a publishing contract. he series works through one of my publishing contracts, clause by clause, explaining what it means and what you should argue about. You can see it as a series of lessons in how to be stroppy, or in how to protect your professional and financial interests. It looks like you spend a lot of effort and time on your blog. Keep up the good work.

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