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| Asking an Attorney to Review a Book Contract |
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
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Names and addresses of the parties
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Description of the work (tentative title, word count, illustrations, audience, genre)
II. Grant of Rights and Territory
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Is this an assignment of all rights or a license?
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Duration (fixed term vs. life of copyright)
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Geographic scope: worldwide vs. limited (e.g., U.S. and Canada)
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Exclusive rights granted:
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Primary rights: hardcover, trade paperback, mass market
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Subsidiary rights:
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First serial (pre-publication excerpts)
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Second serial (post-publication excerpts)
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Reprint rights
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Dramatic rights
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Film/TV rights
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Audiobook / Dramatic Audiobook rights (approval over narrator?)
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Foreign translation
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British Commonwealth rights
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III. Manuscript Delivery
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Delivery requirements:
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Due date (is it realistic? “time is of the essence”?)
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Format and method of delivery
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Supporting materials: rights-cleared photos, illustrations, charts, permissions/releases
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Manuscript acceptance:
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Standard: “satisfactory in form and content” vs. publisher’s sole discretion
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Termination for unsatisfactory manuscript or changed market conditions
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Notice requirements for acceptance/rejection
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Good-faith duty to edit
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Return of author’s advance (first proceeds clause, etc.
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IV. Copyright Ownership
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In whose name will the work be registered?
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Who handles registration with the Copyright Office?
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Collaboration or ghostwriter agreements in place?
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Scope of permissions consistent with rights granted
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Reserved rights retained by the author
V. Representations & Warranties
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Author is sole creator
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Work is original and not previously published
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No copyright infringement
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No invasion of privacy or publicity rights
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Not libelous or obscene
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No harmful errors in recipes, formulas, or instructions
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Limited only to material delivered by the author
VI. Indemnity & Insurance
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Does indemnity include alleged claims, or only proven breaches?
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Scope of indemnity: claims and/or breaches
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Publisher’s right to withhold legal expenses (how long?)
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Is the author named as an additional insured on publisher’s media liability policy?
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Does the author have approval over settlement of claims?
VII. Publication
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Duty to publish within a set number of months
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Force majeure (acts of God) — are delays capped?
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Advertising and promotion commitments
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Right to use author’s name and likeness
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Advance Reader Copies (sent 3–4 months before pub date)
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Style and manner of publication:
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Book title (consultation or approval rights)
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Jacket design (consultation or approval rights)
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Editorial changes to manuscript
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Publication by a specific imprint or in a specified format?
VIII. Money Issues
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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).
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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?
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Primary rights: hardcover, trade paperback, mass market, ebook
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Escalations, bestseller bonuses, royalties reductions (deep discount, mail order, premiums, etc.)
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Subsidiary rights:
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Book club (sales vs. licensing)
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Serialization (first/second serial)
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Anthologies/selection rights
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Large print editions
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Foreign translation (Who controls foreigin translation rights?)
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British Commonwealth
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Audio rights (Who controls dramatic audiobook rights?)
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Film/TV rights (Typically, retained by the author)
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Merchandising
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Future technology/database rights
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Reserve for returns: percentage withheld, liquidation timing
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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
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Frequency (annual, semi-annual, quarterly)
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Payment dates
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Can publisher recoup outstanding advances from future books?
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Author’s audit rights
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Deadlines for objections or legal action
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Right to hire forensic accountant (contingency basis?)
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Pass-through clause for subsidiary rights income
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Termination right if publisher fails to account
X. Revised Editions
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Frequency and by whom
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Reduced royalties if author doesn’t participate?
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Are revised editions treated as new books?
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Reviser credit (can original author remove name?)
XI. Option Clauses
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Definition of “next work”
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When option period starts
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Are terms definite (legally enforceable)?
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Type of option: first look, matching, topping?
XII. Competing Works & Morality Clauses
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How is a competing work defined?
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Duration of non-compete
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Exclusions (what does not count as competing)
XIII. Out-of-Print
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Definition of “out of print”
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Notice requirements
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Author’s right to purchase plates, files, or inventory
XIV. Termination
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Triggers for reversion of rights:
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Failure to publish within 12–18 months of acceptance
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Failure to account after due notice
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Failure to keep book in print
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Survival of author’s reps and warranties
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Do pre-termination licenses survive?
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What triggers repayment of advances?
XV. Miscellaneous
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Choice of governing law
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Mediation or arbitration clauses
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Bankruptcy protections
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Emerging issues (e.g., AI, morals clauses)
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Literary agent clause
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