So Dave — I’m a startup publisher. I’ve read what you have here and it’s all from the author’s perspective. Can you tell me what you think makes a good contract from a publisher’s point of view??
Thanks for your question. Most interesting! First off, though, I have to disclaim that I’m not a lawyer and that as a result I don’t want to talk about specific contractual terms, but rather general issues and intellectual property ownership. Capiche?
For years, I’ve felt that there’s a disconnect in the publishing business between authors, who mostly believe that publishers will do all the marketing and sales, and publishers who view themselves primarily as packagers with access to distribution channels. Some authors recognize that marketing is a joint responsibility and they seek to create visibility for their book in the marketplace, but even then publishing contracts are often too constraining for authors to even post significant excerpts or samples on their Web sites, for example.
Looking at different publishing contracts, the two key issues to address are publishing rights, which includes copyright ownership and publication process guarantees. There are other important issues, including royalty terms, revision terms, non-compete clauses, cross-accounting clauses, etc., but I want to just focus on these two key issues in this article.
Here’s a typical overly-restrictive publishing rights clause from a contract of mine: “You grant us the exclusive right to print, publish, distribute and sell copies of the book, and works derived from the book, in printed form and in electronic media such as CD-ROM, the Internet … ” In the face of a clause like that, how can an author help sell the work? Clearly there’s no specific permission to even have a ‘page of the week’ on the author’s Web site, excerpts can’t be included in newsletters or posted on discussion boards (or weblogs, for that matter), and yet just as clearly the publisher appreciates help in marketing and selling the book.
From the publisher’s perspective, then, gaining exclusive publication rights to the work is critically important, but I believe that extending that to all methods by which the information can be disseminated to the public is just too broad and too constraining. The point is that publishing should be an equitable partnership and that both parties should work together to promote the product. In this case, I’d suggest that a publisher insist on exclusive print rights, and that the author agree to including the publisher in any other physical publication (e.g., CD-ROM, DVD) and appraise the publisher of any digital publication of up to, but not including, some percentage X of the total work. I think you could have this as high as 33% of the entire work, but I also believe that a really good book will sell in print even if the entire work is available online as a free download.
I also believe that the publisher should always register the copyright in the name of the author or authors rather than their firm. It in no ways limits the rights (especially contractual rights) of the publisher, but it’s just cool. After all, the publishing corporation didn’t write the book, the author did.
Publication Process Guarantees
Much of the verbiage in the contracts I’ve seen has to do with what the author agrees to deliver, who gets to decide what level of quality is acceptable, how fast edits need to be turned around, etc. These are all obviously critical, particularly with new authors that might lose interest after that first advance check shows up in the mailbox, leaving the publisher in a terrible spot. Here again, though, most publishers seem to forget that there’s a period of time between when the proposal comes into the office and the contract is signed and fully executed. So an author might send in a contract late in January with a writing schedule that has the first chapters turned in by 15 February. The contract then takes two weeks to negotiate and the author – wisely – refuses to start writing until the contract is signed. But now they’re left in a pickle because the contract uses the dates specified in the proposal and the author has 48 hours to write the first set of chapters, rather than three weeks as originally intended.
I’ve seen this happen more often than I can count, and I think it’s critical that publishers sidestep this issue by ensuring that their contract deliverables are based on a mutually-agreeable schedule determined after the contract is signed (which can be done with a quick email after signing, frankly). Then the restrictive clauses seem to be less concerning anyway.
The key point is that authors need to agree that they’ll deliver high quality, accurate prose on schedule, that they’ll turn around any and all editorial changes and suggestions, and that the publisher ultimately makes the publish/no publish decision. The publisher, for their part, needs to agree to keep the author informed during the entire editorial process, something that remarkably few publishers actually do. One book I’m working on, for example, was a classic “hurry up and wait” situation where I turned in the last chapter on 31 December, and now, three weeks later, still haven’t heard back on whether even a single chapter is acceptable. Last year I had a situation where I submitted the final chapter of a book just to have the group publisher call me the same day and ask “are you still interested in working on this book, Dave? If so, I’d love to talk about your table of contents before you start writing…”
If the material that the author turns in is garbage, then that needs to be determined immediately. I see no fundamental problem with having the publisher just walk at that point, if it’s egregious enough, or insist on changing the terms of the contract to pay for a co-author (aka “fixit person”) to join the project. Once that first chapter is accepted, though, I believe that the author has earned their first advance payment. Even if later the project is canceled by the publisher.
Most publishers will disagree with me on this and can be frankly quite insulting to authors about their desire to have advances returned even if they are the ones canceling the project. From the publisher’s perspective, remember that playing it fair, making sure that your decision isn’t hurting the author, and being savvy of the networking that authors do (and how one author’s bad experience is quickly shared with dozens of other authors) pays off in the long run. I’ll tell you that authors are a cranky lot and when one has a bad experience, many others learn all about it, commiserate, and remember it when it’s time for them to find a publisher for their next work.
There are many other issues surrounding what makes a good publishing contract, from the publisher’s perspective, but I’ll wrap up by saying that a truly equitable contract is going to be a good contract from both the author’s and publisher’s perspective. If that’s not the case, then we’re taking it from a win:win publishing partnership, to a win:lose negotiation where there’s ill-will before the first word is even set to paper. And is that how you want to start out a relationship with your authors?