How to Negotiate a Book Contract: Essential Terms and Rights

Asking an Attorney to Review a Book Contract

Book Contract Checklist of Deal Terms

When negotiating a book publishing contract, it’s crucial to ensure that the terms are specifically tailored to meet each author's unique needs and long-term goals. For example, if you're a subject matter expert or entrepreneur, your book can be a powerful tool to elevate your brand identity, build trust, and enhance credibility in your field. In this case, key contract considerations include securing approval over the title and cover design to align with your brand image, negotiating favorable terms for bulk book purchases, and setting a firm publication date that capitalizes on cross-promotional opportunities tied to your business or marketing strategy. These elements are vital for maximizing your book’s value in reinforcing and growing your brand.

On the other hand, romantasy authors (or other fiction authors) who have a long-term vision for their characters and the fantasy world they're building, will have different contract priorities. Retaining ownership of their characters, securing trademark rights for the series title, and maintaining exclusive rights to publish sequels and prequels are essential for protecting their rights.  Additionally, negotiating favorable advances, royalty rates, and controlling subsidiary rights (such as film, television, and  merchandise rights) forms the foundation of a solid publishing contract.

While legal terms in publishing contracts share a common language, a publishing attorney, or competent literary agent, can spot abnormalities or points that have been omitted to the detriment of the author. Unlike the film and television industries, the grant of rights is (and should be) narrow. In exchange for an advance against royalties, the publisher receives the basic right to print and publish your manuscript in book, eBook, and, more often than not, audiobook form for the entire term of copyright. Be wary if the grant of rights includes film, television, theater, and merchandise licensing rights. Typically, these rights are not granted to the publisher.

Common Contract Pitfalls to Avoid

Given that copyright protection extends for seventy years beyond an author's passing, the long-term implications of contract terms become particularly significant. You might wonder, what could possibly go wrong over such an extended period? The answer: quite a lot.  Without a properly negotiated book contract, potential pitfalls include:

• no reversion of rights if the publisher fails to pay royalties or goes out of business
• inability to recover rights when books go out of print or have minimal sales
• inability to reclaim unexploited audiobook or foreign translation rights 
• no voice in legal settlements of infringement, defamation, and other claims
• restrictive non-compete clauses
• option clauses that trap authors in unfavorable deals, often mistaken for guaranteed multi-book deals.

Timing Your Negotiations: The Romance Phase Advantage

Publishers are generally most open to accommodating requests for contract adjustments during the initial stages of the relationship, often referred to as the "romance" phase. Later is too late. Unless a book publishing contract allows an author to terminate for cause if the relationship goes awry, or rights are granted on a "use it or lose it" basis, the author is caught between bad and worse options - asking a court to rescind the contract (rescission is seldom granted) or waiting 35 years to exercise their right of termination under the Copyright Act. 

A Book Contract Should Not be Entered into Hastily

The primary purpose of a book contract is to detail the rights, delivery and acceptance conditions, payment terms, and remedies for breach of contract. For example, rather than relying on a lawsuit to get back rights, if a publisher fails to publish within a contractually agreed time limit, there should be a mechanism that permits an author to regain their rights. Similarly, if a publisher fails to exploit specific subsidiary rights (e.g., audiobook or foreign translation) within a reasonable time, it should trigger a reversion of those rights. In addition to reclaiming or recapturing rights, an author should reserve, or hold for their own use, film, television, live stage, podcast, and merchandise licensing rights. If a book publisher claims these rights, they deviate from industry norms. 

The Attorney's Role in Contract Review

Preceding the actual book contract is the term sheet. The term sheet contains the main deal terms. To decode a term sheet some authors turn to literary agents, who will receive a 15% commission on everything from books to audiobooks to film deals. Others retain flat or hourly fee book contract attorneys to help them negotiate royalty rates, the grant of rights, and, later, decipher the legal provisions found in the actual publishing contract.  

Initially, a publishing attorney will review the deal terms and make recommendations to their client. The initial task is to determine if the deal terms measure up to industry standards. We do this by comparing the terms to similar terms offered by similarly situated publishers for comparable books. After both parties agree to the deal terms, the publisher will prepare a contract incorporating those terms, plus the publisher's stock provisions. Like agents, attorneys are buffers that save you from dealing with the minutia of contract negotiation. They will help the client think through the offer and its possible ramifications and advise them on what is negotiable and what is not. An author's attorney can argue for the exclusion of certain items or rights from the proposed contract and the inclusion of others, such as naming the author as an additional insured on the publisher's media perils policy. 

Decoding Royalty Structures and Industry Standards

It’s no surprise that book publishing contracts, drafted by the publisher's lawyer, are rife with double dips and legal loopholes that favor the publisher. When it comes to royalties, they often create a hall of mirrors where what is stated and what it actually means can be two very different things. The Big Five New York publishers offer royalties based on the suggested retail price. Royalties for trade paperback books range from 7% - 7.5% of the list price on average. Typically, established publishers offer 10% of the list price for the first 5,000 hardcover copies sold, 12.5% on the next 5,000 sold, and 15% thereafter. Many smaller publishers base their royalty on the "net amount received," which may be 40% to 50% less than the retail price.  The standard eBook royalty rate offered by established publishers, and many independents, is 25% of the net.

Is Your Book Contract Signable?

When presented with the contract, you will want to modify specific terms.  In the case of a subject matter expert, business owner, or series author, you want title approval. Yet most stock contracts state the publisher decides the book's title.  Contract clauses are malleable, not words set in stone. A good publishing attorney - or agent- knows the contract managers at the major publishing houses. Logical arguments supporting rational positions and knowledge of industry practice are the underpinnings of most book contract negotiations.

Whether one of the big five New York publishing houses or one outside of the insular world of New York publishing, a well-drafted publishing contract can anticipate potential issues, reduce disputes, improve financial return, and save thousands of dollars in legal fees later on. 

Post-Signature Review: Understanding Your Existing Deal

For those who have already signed a publishing agreement, a publishing attorney or literary lawyer can help you understand the deal's limitations and determine if those limitations are enforceable. For example, a publishing attorney can advise whether a next book option is enforceable or simply an unenforceable agreement to agree. For example, a common concern is whether a non-compete clause can prevent an author from writing a new book on a related topic. Similarly, a publishing attorney can advise on termination for cause options or termination as a matter of right under the Copyright Act.  

Tip. 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 world of books and authors.     

Book Publishing Contract Checklist

Below are matters to consider when you draft or negotiate your next publishing agreement. Each key point deserves greater attention than given here (and will be the subject of future blog posts). While not all clauses are equally important (or negotiable), a well-drafted contract will cover all or most of the points outlined below.

---

I. General Provisions

• Names and addresses of the parties

• Description of the work (tentative title, word count, illustrations, audience, genre)

---

II. Grant of Rights and Territory

• Is this an assignment of all rights or a license?

• Duration (fixed term vs. life of copyright)

• Geographic scope: worldwide vs. limited (e.g., U.S. and Canada)

• Exclusive rights granted:

  • Primary rights: hardcover, trade paperback, mass market

  • Subsidiary rights:

    • First serial (pre-publication excerpts)

    • Second serial (post-publication excerpts)

    • Reprint rights

    • Dramatic rights

    • Film/TV rights

    • Audiobook / Dramatic Audiobook rights (approval over narrator?)

    • Foreign translation

    • British Commonwealth rights

---

III. Manuscript Delivery

• Delivery requirements:

  • Due date (is it realistic? “time is of the essence”?)

  • Format and method of delivery

  • Supporting materials: rights-cleared photos, illustrations, charts, permissions/releases

• Manuscript acceptance:

  • Standard: “satisfactory in form and content” vs. publisher’s sole discretion

  • Termination for unsatisfactory manuscript or changed market conditions

  • Notice requirements for acceptance/rejection

  • Good-faith duty to edit

  • Return of author’s advance (first proceeds clause, etc.

---

IV. Copyright Ownership

• In whose name will the work be registered?

• Who handles registration with the Copyright Office?

• Collaboration or ghostwriter agreements in place?

• Scope of permissions consistent with rights granted

• Reserved rights retained by the author

---

V. Representations & Warranties

• Author is sole creator

• Work is original and not previously published

• No copyright infringement

• No invasion of privacy or publicity rights

• Not libelous or obscene

• No harmful errors in recipes, formulas, or instructions

• Limited only to material delivered by the author

---

VI. Indemnity & Insurance

• Does indemnity include alleged claims, or only proven breaches?

• Scope of indemnity: claims and/or breaches

• Publisher’s right to withhold legal expenses (how long?)

• Is the author named as an additional insured on publisher’s media liability policy?

• Does the author have approval over settlement of claims?

---

VII. Publication

• Duty to publish within a set number of months

  • Force majeure (acts of God) — are delays capped?

• Advertising and promotion commitments

• Right to use author’s name and likeness

• Advance Reader Copies (sent 3–4 months before pub date)

• Style and manner of publication:

  • Book title (consultation or approval rights)

  • Jacket design (consultation or approval rights)

  • Editorial changes to manuscript

• Publication by a specific imprint or in a specified format?

---

VIII. Money Issues

• Advance Against Royalties: Timing of Payments

  1. On Signing: [__%] of the total advance, payable upon full execution of this Agreement.

  2. On Delivery and Acceptance: [__%] of the total advance, payable upon Publisher’s written acceptance of the complete and satisfactory manuscript.

  3. On Initial Publication: [__%] of the total advance, payable upon first publication of the Work in hardcover (or, if first published in another format, upon such initial publication).

  4. On Publication of Trade Paperback Edition: [__%] of the total advance, payable upon first publication of the Work in trade paperback format (Note -- from the author’s perspective, tying an installment to a later paperback release is not optimal, as timing may be uncertain or significantly delayed).

• Royalties:

  • Basis for royalty? Suggesedt retail price? Amount received? Net receipts? 

  • Cross collateralization: Are advances/royalties from multiple books lumped together (one pot) or kept separate?

  • Primary rights: hardcover, trade paperback, mass market, ebook

    • Escalations, bestseller bonuses, royalties reductions (deep discount, mail order, premiums, etc.)

  • Subsidiary rights:

    • Book club (sales vs. licensing)

    • Serialization (first/second serial)

    • Anthologies/selection rights

    • Large print editions

    • Foreign translation (Who controls foreigin translation rights?)

    • British Commonwealth

    • Audio rights (Who controls dramatic audiobook rights?)

    • Film/TV rights (Typically, retained by the author)

    • Merchandising

    • Future technology/database rights

• Reserve for returns: percentage withheld, liquidation timing

• Deep Discount Sales: Specify royalty rates (often 10% of net receipts or less) for sales made at high discounts (e.g., 50%+ off list price). Note -- Deep discount clauses can erode author earnings if applied too broadly—watch for language that permits the publisher to classify ordinary sales (such as to Amazon, book clubs, or wholesalers) as “deep discount.” Narrow the clause to true special-market or bulk sales.

---

IX. Accounting Statements

• Frequency (annual, semi-annual, quarterly)

• Payment dates

• Can publisher recoup outstanding advances from future books?

• Author’s audit rights

• Deadlines for objections or legal action

• Right to hire forensic accountant (contingency basis?)

• Pass-through clause for subsidiary rights income

• Termination right if publisher fails to account

---

X. Revised Editions

• Frequency and by whom

• Reduced royalties if author doesn’t participate?

• Are revised editions treated as new books?

• Reviser credit (can original author remove name?)

---

XI. Option Clauses

• Definition of “next work”

• When option period starts

• Are terms definite (legally enforceable)?

• Type of option: first look, matching, topping?

---

XII. Competing Works & Morality Clauses

• How is a competing work defined?

• Duration of non-compete

• Exclusions (what does not count as competing)

---

XIII. Out-of-Print

• Definition of “out of print”

• Notice requirements

• Author’s right to purchase plates, files, or inventory

---

XIV. Termination

• Triggers for reversion of rights:

  • Failure to publish within 12–18 months of acceptance

  • Failure to account after due notice

  • Failure to keep book in print

• Survival of author’s reps and warranties

• Do pre-termination licenses survive?

• What triggers repayment of advances?

---

XV. Miscellaneous

• Choice of governing law

• Mediation or arbitration clauses

• Bankruptcy protections

• Emerging issues (e.g., AI, morals clauses)

• Literary agent clause

###

 

Illustration: from Lawton Mackall's Bizarre 

Illustrator: Lauren Stout

Date: 1922

Related Blog Posts

Libel in Fiction

Fair Use in a Nutshell 

Twelve Copyright Permission Myths  

Estate Planning for Authors 

DISCLAIMER / 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.

Attorney Advertising. While intended as general advice, this blog and its contents may be considered attorney advertising under the rules of certain jurisdictions. Hiring an attorney is important and should not be based solely on advertising. Past results are no guarantee of future results. 

Limitation of Liability. We disclaim any liability, loss, damage, injury, or cost (including, without limitation, attorneys' fees, lost profits, or data) caused by the contents of this blog or website. 

Links. This website contains links to third-party websites and other resources. These links are provided solely for your convenience and educational purposes. They should not be construed as endorsements by the Law Offices of Lloyd J. Jassin. 

Jurisdiction.    Using this website, you have irrevocably agreed to the U.S. federal and state courts' sole and exclusive jurisdiction and venue in New York City, USA. Any action, suit, or proceeding involving the use of this website, the information contained in this website, to the extent permitted by federal law, will be governed by the laws of the State of New York (excluding New York's choice of law rules) in the absence of applicable federal law.

Trademarks. COPYLAW is a registered trademark of Lloyd J. Jassin.

 

A Writer's Guide to Copyright Fair Use

Fair Use Uses a Four Part Balancing Test

Fair use allows authors and other creators to make reasonable use of copyrighted material without paying a fee. It functions as a free expression safety valve by allowing authors to make statements about important societal issues. Without it, copyright owners could squash criticism, commentary, news reporting, scholarship, and even research they didn't like or approve of.

Understanding Fair Use

Fair use is a defense against copyright infringement. Courts favor uses that challenge, interpret, build upon, tease, or poke fun at the original work, resulting in new insights and meaning. Such uses are known as transformative uses. Examples of transformative uses include editorials, criticism, scholarship, news reporting, teaching, and parody. The more transformative the use, the greater the likelihood the use will fit under the aegis of fair use. In addition, courts favor uses that are primarily educational or noncommercial.  Uses that displace sales or licensing opportunities for the owner of a work seldom qualify.

The Four Fair Use Factors

Using a four-factor fairness test, courts weigh the exclusive rights of copyright owners against the societal interest in the free flow of information. No one of the following factors is determinant, although factor four, which relates to economic harm to the copyright owner, weighs heavily in any fair use decision.

1.     The purposes and character of the use, including whether the use is primarily commercial. This factor also weigh the transformative nature of the use; 

2.     The nature of the work that's been copied;

3.     The amount and importance of what's quoted in relation to the original work;

4.     The effect the copying has on the market for the original work and its derivatives 

"Courts are solicitous of commercial publishers' free speech rights.  Therefore, the fact that a publication is sold does not strip it of fair use protection. Fair use determinations are based on the totality of the factors. No one factor is controlling."

Useful Fair Use Tips and Strategies

Despite the ad hoc nature of reported fair use decisions, here are general guidelines to help you ascertain if you have a viable fair use defense. 

• Fair use favors transformative uses. Are you using the work as a springboard to make new insights? Do you critique the original? Have you made a connection between the work you've copied and other works? Are you using the work to buttress your arguments or the arguments of others?
• Is the use a commercial use? While relevant, a commercial use is not dispositive. If the use can provide some social benefit, "by shedding light on a earlier work, and in the process creating a new one," the use may still be a fair use. 
•  In Andy Warhol Foundation v. Goldsmith (2023), the U.S. Supreme Court held that the claim to fairness diminishes, "where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it."
• Since ideas are common property, fair use is more likely to be found using factual material.  
• Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so fair use tilts against the use of these works.
• Quoting from an unpublished work will expose you to greater risk than quoting previously published materials.
• The use must be reasonable in light of the purpose of the copying. The less you copy, the more likely fair use will be found. However, sometimes even a small (but important) portion borrowed from a work may qualify as an infringement.
• Synthesize facts in your own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively.
• Lack of credit, or improper credit, weighs against finding fair use. However, giving credit will not transform an infringing use into a fair use.
• A parody (lawful), as opposed to satire (unlawful) is a work that ridicules or mocks another work. Fair use looks favorably upon parody. Make sure the parody is apparent and conjure up just enough of the original to convey your parodic points. 
• While fair use favors non-profit activities, being a not-for-profit will not automatically shield you from liability if your actions reduce the monetary incentives for creating future works. 

To sum up, don't compete with the work you copied. If the use displaces or diminishes the market for the original work, including potential licensing revenue, likely it's not a fair use. Generally, the more transformative the work is, the less the economic impact is.

Does Your LLC Protect You from Personal Liability for Infringement?

No, it does not. If you personally direct the infringement, your personal LLC or corporation will not shield you from personal liability for claims of either copyright or trademark infringement.  Under the theory of vicarious liability, infringement may arise if the managing member or corporate officer has the right and ability to supervise the infringement and a direct financial interest. Further, if you have knowledge of the infringement, and materially contribute to the infringing conduct of another or encourage or assist in the infringement, you may be liable for contributory infringement. 

 

Conclusion
 

Reminder. Fair use is a defense to copyright infringement. Unfortunately, fairness, like beauty, can be debated but not defined. If you are uncomfortable with the case-by-case nature of fair use determinations, consult with a copyright attorney. They can help you walk the sometimes tricky line between fair and foul use. By hiring an attorney, and following their advice, your good faith effort to ensure fair use applies, may have a positive impact on the measure of damages if a court rejects your fair use defense. Finally, your attorney can advise you on how to protect yourself against claims of infringement (and other media perils) with publisher's liability insurance. 

Resources

A Guide to Trademark Fair Use & Title Clearance

Trademark Registration and the Single Book Title

  

Image: Tight-Rope Walker, c.1885 (oil on canvas)

About the Artist:  Jean Louis Forain  (1852 - 1931)

 

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give specific legal advice about specific circumstances. Professional legal advice should be obtained before acting upon any of the information contained in this article.

LLOYD JASSIN is a New York-based copyright, publishing, and entertainment attorney. He is co-author of the Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors, and Publishers (John Wiley & Sons, Inc.). In addition, Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries and lectures frequently on contract and copyright issues affecting creators and their publisher partners. A long-time supporter of independent presses, he was First Amendment counsel to the Independent Book Publishers Association  (IBPA) and is a member of The Beacon Press advisory board.  

You may reach attorney Jassin at jassin@copylaw.org or at (212) 354-4442. His offices are in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036. Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin