When I was at ThrillerFest two years ago (a writing conference in NYC for, you guessed it, thriller writers), I moderated a panel on negotiating publishing contracts. The panel consisted of two agents, two publishing lawyers, and two authors. One question from that discussion revolved around when should a writer walk away from a publishing contract.
I have summarized the discussion below with some helpful guidance should you be faced with the possibility of walking away from a publishing deal.
The Traditional Publishing Route
a) Unreasonable publishing contracts terms
With all the shifts and upheaval in the publishing industry, a writer might feel pressured to sign a publishing contract “as is” thinking the offer is a take-it-or-leave-it proposition. I understand the mindset. If you are a writer who has been waiting patiently for an offer to attend the publishing dance, you might want to sign the agreement quickly before the publisher can rescind the offer.
But don’t rush to the dance floor too quickly. Doing so can have profound and unwanted consequences when that contract is not in your best interest.
Before you start negotiating better contract terms, know your bottom line or the point at which you will reject a deal. Start by understanding your long-term goals. Then, create a business plan for your book and career. If you do, then you will know quickly if a publishing deal you have been offered will help you reach those goals and plans.
Most publishers are willing to negotiate the terms in their publishing contracts. Others are not so flexible. Just understand that some terms are industry standards, which the publisher will refuse to negotiate (like standard royalty rates unless you have power as an established author who can demand a larger percentage). Other terms are not set in stone. If you feel a clause in your publishing contract is unfair or unreasonable, discuss it with your agent and suggest changes. If you do not have an agent, hire a publishing lawyer to review the contract.
A few unfair terms to watch for:
- A publisher claiming ownership of the copyright — The copyright always remains with the author. What a publisher gets is a license granted by you allowing the publisher to commercially exploit the copyright in your work.
- A publisher requiring the copyright to be registered in the publisher’s name — Never allow the publisher to register the copyright in their name. It’s another way for the publisher to claim ownership of the author’s copyright. Publishers should agree to register the copyright for the author and only in the author’s name.
- A poor grant of rights clause – Some publishers sneak in a rights grab, like extending rights beyond what they need to publish your book. For example, if the publisher asks the writer to grant all rights to the author’s work, such blanket language is too broad. Request instead that the grant of rights clause list every right being granted. See my earlier Sidebar Saturdays article with tips for negotiating the Grant of Rights clause. This clause is the nucleus of every publishing contract.
- Royalty rates below industry standards — If the publisher requests you take a reduced advance and/or a reduced royalty rate below industry standards, push back. You deserve what the industry will pay. Ask for it. Do not agree to repay a portion of the advance if the book does not sell. Losing an advance is the risk the publisher incurs by agreeing to publish your book.
- Poor non-compete clauses — These tend to be overly broad and vague. Some non-compete clauses will bar an author from self-publishing. Some non-compete clauses are indefinite, so attempt to limit the non-compete period to a specific time, like 1-3 years after publication. Limit the subject matter of the clause so it does not prevent the writer from working in other genres, or on any related prequels, sequels, and characters the writer might want to explore once the book publishes.
- Poor or no termination rights — The last thing you want is for the publisher to have control of your creative work for an unlimited amount of time. Make sure the contract has a limited term and is fair to both parties, not just the publisher. If the publisher wants to maintain control for a longer-term than you want, then the publisher should pay for it. Rights should revert back to the author if:
- your publisher never releases the book after a specified amount of time;
- your sales are below a specified dollar amount;
- your book is “out of print” (although be careful with how this term is defined because print-on-demand and eBooks if available can mean the book is still in print).
- Unreasonable delivery and acceptance clauses — Publishing contracts provide a deadline for the writer to deliver a complete manuscript. If the writer fails to meet the deadline, the publisher can terminate the contract and require the portion of the paid advance return. The acceptance clause gives the publisher a means to exit the publishing contract should the manuscript be unsatisfactory. Make sure these are not subjective and one-sided provisions favoring the publisher. For more information see my previous article on unfair delivery and acceptance clauses.
- Unfair warranty and indemnity clauses — See my previous post on this subject for more information.
- Unfair editing clauses — See my previous post on negotiating editorial control for more information.
b) An inexperienced or inept publisher
Whether your publisher is large or small, check the publisher’s ability to publish and distribute your book. Due diligence is imperative on your part if you are going to make an informed decision.
Ask questions like:
- What resources does the publisher have available to produce and distribute your book?
- What is the publisher’s reputation in the industry?
- How long has the publisher been in business?
- How many books has the publisher released?
- What is the quality of their books?
- What is their track record with other authors?
The Self-Publishing Route
If you decide to self-publish, then you will either hire a self-publishing service to produce the book and distribute it, or you will hire the editors, designers, and other professionals needed to produce and distribute your book, or you could have a hybrid of the two.
Like with traditional publishing contracts, self-publishing contract terms can be abusive too. Be on the lookout for the following predatory contract terms and entities that exist only to make a buck off a writer’s hard work.
- A vanity press – These are the companies that charge you to “publish” your book when all they do is format and print. They might claim to be a trade-publisher. They might charge a fee for a basic publication package, then up-sell items and services to the author that are either worthless or overpriced. Often, vanity presses never market the book and make false claims about their distribution abilities.
- A contract that requires the author to buy bulk quantities of their own books — Normally, an author can buy their own book from the publisher or self-publishing service at discounted rates. Never sign a contract that requires you to buy a mandatory number of books from a publisher or the self-publishing service. The publisher makes money by selling your book. The self-publishing service makes money by formatting and producing your book. A mandatory purchase clause is simply onerous and ensures the self-publishing service makes money off you.
- A contract with a self-publishing service that attempts to grab rights – Read the contracts carefully and if you have questions, hire a publishing lawyer to review the contract. Some self-publishing contracts attempt improper rights grabs, including the right to publish your book anywhere in the world, or claiming exclusive rights to your creative work for the life of the copyright.
- A contract giving ownership of the copyright to self-publishing services — As noted above, the copyright always remains with the author. Never assign it to the self-publishing service. Only grant the rights necessary for the service to publish and distribute your book.
- An unfair termination clause — Make sure that you can terminate the contract easily. Never allow a license (i.e. the rights you granted to the publishing service to publish and distribute your book) to continue past termination. When the contract terminates, so should the rights that you granted.
As with any contract, due diligence is imperative before you sign. If the publishing deal or self-publishing contract does not further your long-term goals and plans, then walk away. Signing a bad deal with unfair terms is worse than no contract at all, especially now that authors have more publishing options.
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