Having had oodles of experience with contract negotiation and publishing, I’m reviewing the contract that a very large publisher sent a colleague for a book she wants to write, and it amazes me how it has all the same anti-author clauses of just about every other publisher’s agreement I’ve seen (with a few notable exceptions). This is why people who aren’t familiar with the business really need to consider an agent, lawyer, or someone else who can represent their interests when reading through a legal document of this nature.
Here are some of the classic gotchas in this contract – I present the actual wording in the contract then my comments after:
Author shall prepare and deliver to the publisher two clean copies of a complete manuscript in double-spaced typewritten form…
Did the publisher forget that we now have computers? I can’t possibly imagine that anyone would willingly agree to supply two printouts along with their electronic submissions.
The publisher shall arrange to prepare an index to the Work and charge the cost thereof as an advance against royalties
This is one of my favorite anti-author clauses. The cost of creating an index is one of the many costs of producing and publishing a book, and there’s no reason that it should be pushed into the author’s royalty stream. I would never agree to a contract that even had me paying half of this, let alone the entire thing. And don’t be fooled, “against royalties” means that it’s coming out of your pocket as surely as if they sent you a bill.
The author shall .. return promptly all printed proofs of the Work. If the author makes … any alterations which are not corrections of typographical, drafting or publisher’s errors… the cost of the excess alterations shall be charged against any sums accruing to the Author under this agreement.
That’s a complex one, but the gist of it is: if you find a mistake or want to make a change that’s not a typo, we’re going to charge you for the changes. What that doesn’t take into account – and this is critical – is that the industry doesn’t stand still while the book is being produced, so according to the terms of this contract, at least, if a company updates its offerings and that requires alterations in the book so that it’s current and accurate, those costs will be born by the author, not the publisher. That’s bogus.
The author agrees that the following rights are included in the rights conveyed… all electronic rights in the Work, including the exclusive right to prepare, publish, distribute… in print and electronic media…
This is a bit more subtle, but if you want to be able to have a sample chapter online to help drive sales of your book (see Wicked Cool Shell Scripts or Creating Cool Web Sites for examples of how sample chapters can help sell a book) you need to have this clause amended, or you’ll be violating your contract to even have a single paragraph from your book online.
The Author shall not write, edit, print or publish any work that might interfere with or injure the sales or licensing of the Work.. or allow the use of the Author’s name in connection with any such work.
This is a classic non-compete clause and it’s bogus. What they’re basically saying here is that you as the author cannot truly benefit from the improved standing you’ll have in your professional community by publishing the book. For example, if you’re then asked to write the foreword to another book in the same segment, the publisher could cry foul based on this clause, and if you wanted to write another book that doesn’t directly compete but is in the same market segment (since after all that’s your area of expertise, hence your writing the book in the first place) that’s not allowed either. Always, always, I refuse to sign any non-compete or, if they’re obessed, have it written so narrowly that it’s almost impossible to be competitive. Note the phrase “that might interfere”: according to whom? This is just bad ju-ju.
No royalty or other payment shall be due for … any copies of the Work or a derivative work or selections from it furnished by the Publisher without payment for the purposes of promotion or publicity…
This means that if the publisher decides to publish an “omnibus edition” or compendium (which plenty of publishers do in the tech space) and include a few chapters of your book, you won’t see a dime. After all, they didn’t pay for it (de facto) and it’s indeed for promotional purposes. This isn’t good and I’d try to have this clause eliminated or tweaked to be more author friendly.
Revised editions: The Publisher shall retain the right, but not the obligation, to use any Author’s name in connection with any edition of the Work even though the Author has not participated in the preparation of that edition.
Another bad idea. If you didn’t contribute to that edition of the book, the publisher shouldn’t retain the right leave your name on the cover. If they do, then you are put in the difficult (and legally problematic) position of being associated with words that you did not write. To imagine where that would be a problem, think libel.
Since a continuing relationship is contemplated by the Author and the Publisher, the Author hereby grants to the Publisher the exclusive option to acquire upon mutually agreeable terms all rights to the next book-length work… until 45 days after submission of a detailed proposal…
This is the Option on Next Work clause, and since I’ve always viewed authors as free agents, I never accept this. Certainly a completely open-ended clause such as the previous is a significant problem because it means that if I am suddenly inspired to write a book in a completely different field (or if I’m approached by another publisher!) I must submit my full proposal to this publisher first, and then wait up to 45 days to hear back from them. That’s too restrictive. If you have a good experience with your book, you’ll naturally establish an ongoing relationship, but it shouldn’t be contractual.
There are more clauses and problems in this contract, but those give you the basic gist of how publishers over the years have evolved these remarkably restrictive contracts that are completely biased in their favor. With these sort of terms and clauses, it’s a wonder that authors make any money at all, but it’s certainly clear how publishing should be a profitable venture when you can push out expenses to the author, leverage their work in any venue imaginable, and tie them up to where they can’t switch to a competitor without significant difficulties.
The moral of this story: keep your eyes very wide open when reading through a publishing contract or agreement, and if you don’t have the expertise to understand all the words, pay for someone who does have the expertise and experience to be your advocate in the process.