Contracts: What to Look For
Danielle wrote to ask, "What clauses in book contracts have proved the most troublesome to writers?'
That's an interesting way to put that question, Danielle. Certainly every clause in a contract can be deemed important, if you consider it's a legal document that will govern everything about your book for as long as it's in print. But I can think of several things an author ought to keep an eye on...
1. What's the grant of rights? Your contract should ask you to grant specific rights to the publisher, not "everything, always, in all circumstances." And rights not specifically granted to the publisher are to be retained by the author.
2. Is the wording clear? Know what you're signing. Some publishers have exceptionally easy-to-read contracts (Baker, Harlequin, and Harvest House are three that come to mind). Others can have contracts that read as though they were invented by lawyers for whom English is not their first language. If you don't understand what you're signing, ask questions. [And let me offer a word of advice: If you have an agent, he or she ought to be able to explain what you're signing. If you don't have an agent, you can get help from a contract evaluation service, which will charge you a couple hundred bucks to review your contract and suggest changes. You can also have a contracts or intellectual property rights attorney review the contract, but DON'T have him or her negotiate it for you. The moment they pick up that phone, the clock is ticking...and the longer they can keep the clock ticking, the more you're going to pay.]
3. Is there added work? Sometimes a book contract will also ask you to create something else. Read it carefully to see if you're on the h0ok for an index, a bibliography, or a map to the star's homes.
4. What is acceptable? Make sure your contract offers you the chance to revise an unacceptable manuscript in order to make it acceptable. Some smaller houses have been known to withhold "acceptance" until they have the cash in hand to pay for it.
5. Who owns the copyright? A contract should state that the book's copyright will be in the author's name.
6. When will the book be published? In most book contracts there is a window that explains your book will be made available for sale within two years. I recently saw a contract that had a five-year window on it, and another contract that didn't limit the publishing time at all. The danger (and it's happened to others) is that you'll turn in a book the publisher keeps forever but never actually publishes.
7. When are advances paid? Make sure you know when you're getting paid. Traditionally an author received half the advance on signing and the other half on completion. Many of the New York houses pay one-third on signing, one-third on delivery, and one-third on publication. I just saw a contract that called for the advance to be broken into eighths (sign, completion of a questionnaire, after an interview with marketing, completion of the manuscript, completion of typesetting... um...the next full moon, etc.)
8. When are royalties paid? Most CBA houses pay twice a year. Many ABA houses pay quarterly. I still see some contracts that call for royalty payments to authors once per year... and no, that publisher won't be offering to pay you interest on that money they've been holding for you.
9. If you're doing a novel, who owns the subsidiary rights? Publishers are in the business of licensing and selling rights, so they'll ask for the dramatic rights to your story. But check something out -- Has this publisher ever sold dramatic rights? Do they actively pursue movie and TV deals? If not, you might be wasting your time granting them to the house.
10. If you're doing a nonfiction book, what's your buy-back discount? The publisher's boilerplate contract will call for you to purchase your own book at about a 40% discount. But if you speak to large groups, you'll want to negotiate for a better deal. You don't want to be in competition with your publisher, but if you regularly have a captive audience listening to you speak, selling books is a sure money-maker for you, and your publisher isn't losing money on the deal.
11. Are there restrictions on the sale of the contract? Check to see if your publisher has the right to sell the entire deal to another house. This doesn't happen often, but it can happen, and you need to be aware of the possibility. I once had a sleaze-ball publisher sign a well-known personality to a book, then immediately start shopping the contract... In other words, he never had any intention of publishing the book; he just wanted to sign a lowball deal and flip it to a bigger house. (This is something he admitted to me, but denied to the author. Mr. Sleazeball is now an agent, by the way.)
12. If it all goes south, who pays for the lawyers? Remember that a contract is put in place to clarify two things: what will happen if all goes well, and what will happen if everything goes to hell. In case of the latter, check to see who covers the cost of the lawyers. A short while back I was sent a contract that called for the publisher to pick the lawyer, but the author to pay for it.
13. Does your contract clarify what constitutes "out of print"? It should be simple: When the publisher is no longer selling your book, it's out of print. Don't get caught up in windy explanations of publishing-on-demand titles constituting a book for sale. (Years ago, I worked on a deal where a publisher claimed a popular author's book was still "in print" because they still were offering an audio version for libraries, so they still controlled rights.) Get a clear definition that includes having regular books commercially available.
14. Does your contract have an option clause? There are various forms of options -- everything from "you promise us your next book" to "we'd like you to give us a first look at your next one." Options aren't necessarily evil (they can reveal a commitment on the part of the publisher to an author's career), but you should know the risks and rewards of a proposed option clause. (True Item: In days of yore, one publisher used to insert an option clause that promised two books for every one you published... so an author could never actually get out from under the contract. For every book he wrote, he owed two more books! That's no longer the case at that house, by the way.)
15. Is this a perfect contract? The answer, in case you're not sure, is "no." In a perfect world, you'd get a perfect contract. But we don't live in a perfect world. So while you'll sometimes hear people make declarations about contracts ("You should NEVER sign a multi-book deal!" or "I would NEVER agree to a cross-collateralized contract!" or "I MUST have approval over the cover!"), be aware that a contract is a negotiated settlement -- you'll ask for some things, and you'll give up some things. That's the nature of contracts. Nobody gets everything they want. But if you approach a book contract as a partnership with your publisher, rather than a battle to be won, you'll be happier with the results.
