Caution is key. Publishing contracts are often laden with hidden traps and legal intricacies, particularly regarding royalties. It's a deceptive maze where the written word and its true meaning can diverge significantly. While major publishers don't typically set out to exploit authors, they are inclined to optimize their benefits, sometimes at the author's expense. As for smaller publishers, they range from benevolent guides to cunning adversaries.
If chomping at the bit to sign a contract but cannot afford to hire a lawyer, visit Victoria Strauss' Writer Beware blog - a beacon of light in the "shadow-world of literary scams, schemes, and pitfalls." Writer Beware doesn't offer legal advice, but it does a stellar job exposing and raising awareness of questionable business practices in the literary world.
Book Publishing Checklist
I. The Basics
1. Sign personally or on behalf of a corporation or LLC?
-Why signing on behalf of a corporation or LLC may not offer as
much protection as you think
2. Description of work (synopsis)
-Tentative title, #
of words, # of photos, intended audience, fiction, non- fiction
II. Grant of Rights and Territory
1. Is it a license of certain rights or an assignment of all rights?
2. Term of years or life of copyright?
3. Geographic scope
a) World?
b) Limited? (e.g., the U.S., its possessions & Canada)
4. Exclusive rights granted
a) Primary rights
-Hardcover
-Trade paperback
1. Is it a license of certain rights or an assignment of all rights?
2. Term of years or life of copyright?
3. Geographic scope
a) World?
b) Limited? (e.g., the U.S., its possessions & Canada)
4. Exclusive rights granted
a) Primary rights
-Hardcover
-Trade paperback
-Mass market
-eBook
-eBook
b)
Secondary (subsidiary rights)
-Periodical rights
1) First serial (right to publish pre-publication excerpts)
2) Second serial (right to publish excerpts after publication date)
-Book club
-Dramatic rights
-Film/TV rights
-Video Recordings / Audio Recordings
-Periodical rights
1) First serial (right to publish pre-publication excerpts)
2) Second serial (right to publish excerpts after publication date)
-Book club
-Dramatic rights
-Film/TV rights
-Video Recordings / Audio Recordings
-Ebook rights
-Other
digital versions (apps, enhanced eBooks)
-Podcast / Radio rights
-Merchandising (commercial tie-in) rights
-Future technologies
-Foreign translation rights
-British Commonwealth rights
-Podcast / Radio rights
-Merchandising (commercial tie-in) rights
-Future technologies
-Foreign translation rights
-British Commonwealth rights
c) Rights Reserved by Author - Film, Television, Dramatic, Merch
d) Ask for audiobooks or foreign translation rights to revert if they go
unexploited after a period of time
III. Manuscript Delivery
1. Delivery requirements:
a) When due? Is the date realistic?
b) What format? Specify the size of the paper, spacing, margins, etc.
c) What to deliver?
-Index (who pays?)
-Number of illustrations, charts, photos (who pays?)
d) Permissions
The copyright permissions you receive from third parties
must encompass the same
rights you have granted to your publisher.
2. Manuscript Acceptance
a) Criteria: Satisfactory in "form and content" or at "sole discretion" of the
publisher? (This clause is often a litigation
flashpoint)
b) Termination for unsatisfactory manuscript (define "unsatisfactory")
c) Termination for changed market conditions (potential deal breaker)
d) When must the publisher either accept or reject?
b) Termination for unsatisfactory manuscript (define "unsatisfactory")
c) Termination for changed market conditions (potential deal breaker)
d) When must the publisher either accept or reject?
e) Good faith duty
to edit
f) Return of the author's advance
-First proceeds clause
-False first proceeds clause
f) Return of the author's advance
-First proceeds clause
-False first proceeds clause
IV. Copyright Ownership / Ownership of Series Titles
1. Whose duty is it to register the work with the U.S. Copyright Office?
2. Joint author?
2. Joint author?
3. Work for hire?
4. Rights typically reserved to the author
-Film, television, dramatic rights, multimedia, merchandise licensing
5. Who owns the trademark to your series title?
V. Author’s Representations & Warranties
1. The author is the sole creator
2. Not previously published; not in public domain
3. Does not infringe any copyrights
4. Does not invade the dual rights of privacy or publicity
5. Not libelous or obscene
6. No errors or omissions in any recipe, formula, or instructions
7. Limited only to material delivered by the Author
1. The author is the sole creator
2. Not previously published; not in public domain
3. Does not infringe any copyrights
4. Does not invade the dual rights of privacy or publicity
5. Not libelous or obscene
6. No errors or omissions in any recipe, formula, or instructions
7. Limited only to material delivered by the Author
VI. Indemnity & Insurance Provisions
1. Typically, the author agrees to reimburse the publisher for losses & expenses
2. Way to limit author exposure, e.g., author approval of settlements
3. Can the publisher withhold legal expenses? Is money held in an interest-
1. Typically, the author agrees to reimburse the publisher for losses & expenses
2. Way to limit author exposure, e.g., author approval of settlements
3. Can the publisher withhold legal expenses? Is money held in an interest-
bearing account
4. Name the author as additional insured on the publisher's media perils policy
4. Name the author as additional insured on the publisher's media perils policy
5. Other drafting tips
VII. Publication
1. Duty to publish within ___ months of delivery & acceptance
-Failure to publish triggers the author's right to terminate the agreement
VII. Publication
1. Duty to publish within ___ months of delivery & acceptance
-Failure to publish triggers the author's right to terminate the agreement
2. Specify which formats the book will in initially be published in
3. Author's approval over the use of name and likeness
4. Bound galleys / Library Reviews
3. Author's approval over the use of name and likeness
4. Bound galleys / Library Reviews
5. Review copies
6. Style or manner of publication
a) Title consultation or approval?
b) Book jacket approval (needed if the book is a brand extension of a service or business)
6. Style or manner of publication
a) Title consultation or approval?
b) Book jacket approval (needed if the book is a brand extension of a service or business)
c) No changes to the manuscript galley proofs approved by the author
VIII. Advances & Royalties
1. Advance against accumulated royalties
2. When payable? (in halves, thirds, etc.)
3. Royalties and subsidiary rights:
a) Primary rights
-Hardcover royalties
-Trade paperback royalties
-Mass market royalties
-eBook royalties
-Royalty escalation(s)
-Bestseller bonus
-Royalty reductions
1) deep discount and special sales
2) mail-order sales
3) premium sales
4) small printing
5) slow-moving inventory
1. Advance against accumulated royalties
2. When payable? (in halves, thirds, etc.)
3. Royalties and subsidiary rights:
a) Primary rights
-Hardcover royalties
-Trade paperback royalties
-Mass market royalties
-eBook royalties
-Royalty escalation(s)
-Bestseller bonus
-Royalty reductions
1) deep discount and special sales
2) mail-order sales
3) premium sales
4) small printing
5) slow-moving inventory
6) bundling with other works
b) Secondary (subsidiary) rights royalty split - -Serialization (first serial, second serial)
-Anthologies, selection rights
-Large print editions
-Hardcover
-Trade paperback
-Mass market
-Foreign translation
-British Commonwealth
-Future technology rights
. -Audio rights
-Motion picture/TV/live stage
-Merchandising
-Advertising
b) Secondary (subsidiary) rights royalty split - -Serialization (first serial, second serial)
-Anthologies, selection rights
-Large print editions
-Hardcover
-Trade paperback
-Mass market
-Foreign translation
-British Commonwealth
-Future technology rights
. -Audio rights
-Motion picture/TV/live stage
-Merchandising
-Advertising
4. Reasonable reserve for returns
a) What percentage is withheld?
b) When liquidated?
5. What is royalty based on? (Retail price? If based on "net," define the term net carefully)
a) At an average discount of 50%, 20% of net is the same as 10% of the list
b) At an average discount of 40%, 16-2/3% of net is the same as 10% of the list
c) At an average discount of 20%, 12-1/2% of net is the same as 10% of the list
6. Recoupment of advance
IX. Accounting Statements
1. Annual, semiannual, or quarterly statements
2. Payment dates
3. Cross collateralize (good for publishers, bad for authors)
4. Audit rights
5. Limit on time to object to statements
6. Limit on time to bring legal action
7. Examination on a contingency basis
8. Pass through clause for subsidiary rights income
9. Important! Termination for failure to account
a) What percentage is withheld?
b) When liquidated?
5. What is royalty based on? (Retail price? If based on "net," define the term net carefully)
a) At an average discount of 50%, 20% of net is the same as 10% of the list
b) At an average discount of 40%, 16-2/3% of net is the same as 10% of the list
c) At an average discount of 20%, 12-1/2% of net is the same as 10% of the list
6. Recoupment of advance
IX. Accounting Statements
1. Annual, semiannual, or quarterly statements
2. Payment dates
3. Cross collateralize (good for publishers, bad for authors)
4. Audit rights
5. Limit on time to object to statements
6. Limit on time to bring legal action
7. Examination on a contingency basis
8. Pass through clause for subsidiary rights income
9. Important! Termination for failure to account
X. Revised Editions
1. Frequency
2. By whom?
3. Does the contractual in royalties correspond to the extent of changes made in comparison to the original author's contribution?
4. Why is selling a revised edition bad for the author's bottom line?
5. Reviser/Author credit
XI. Option
1. Definition of next work
2. When does the option period start?
3. Definiteness of terms (i.e., is the publisher's option actually enforceable?)
4. What type of option? (e.g., first look, matching, topping)
XII. Competing Works
5. Reviser/Author credit
XI. Option
1. Definition of next work
2. When does the option period start?
3. Definiteness of terms (i.e., is the publisher's option actually enforceable?)
4. What type of option? (e.g., first look, matching, topping)
XII. Competing Works
1. How is competing work defined?
2. How long does non-compete run?
3. Any reasonable accommodations?
4. Special issues for fiction writers
XIII. Out-of-Print = Reversion of Rights
1. How defined? (number of copies sold over __ accounting periods)
2. Notice requirements
3. Author's right to purchase digital files, inventory
XIV. Termination
1. What triggers the reversion of rights?
a) Failure to publish within (usually between 12 - 18) months of manuscript acceptance
b) Failure to account to the author after due notice
c) Failure to keep the book in print (see Section XIII)
2. Survival of Author's representations and warranties
3. Do licenses granted before termination survive
XII. Miscellaneous
1. Choice of governing law
2. Mediation or arbitration?
3. Bankruptcy
4. Literary agency clause
5. Personal guarantee if the author is a business entity, not a human being.
3. Any reasonable accommodations?
4. Special issues for fiction writers
XIII. Out-of-Print = Reversion of Rights
1. How defined? (number of copies sold over __ accounting periods)
2. Notice requirements
3. Author's right to purchase digital files, inventory
XIV. Termination
1. What triggers the reversion of rights?
a) Failure to publish within (usually between 12 - 18) months of manuscript acceptance
b) Failure to account to the author after due notice
c) Failure to keep the book in print (see Section XIII)
2. Survival of Author's representations and warranties
3. Do licenses granted before termination survive
XII. Miscellaneous
1. Choice of governing law
2. Mediation or arbitration?
3. Bankruptcy
4. Literary agency clause
5. Personal guarantee if the author is a business entity, not a human being.
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Disclaimer - Terms of Use
By using our blog, you agree to be bound by the following Terms of Use.
Not Legal Advice. The information contained in this blog is intended as general advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information published here. Be aware that the law may vary from state to state. Therefore, this blog cannot replace the advice of an experienced attorney. No attorney-client relationship is created by your access to or use of this website. Contacting us by email does not create an attorney-client relationship. If you wish to establish a professional relationship, it must be done through a mutual agreement in writing. Please do not send us any confidential information until an attorney-client relationship has been established.
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