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Kevin Stewart of Contracts for Publishing:
Do you have a publishing contract but no agent? Even if you don't yet, it might happen and the following article is a must read. Kevin Stewart and Stephen Aucutt are two of the top Specialists in Publishing Contracts seen in the U.K. today and we are very lucky to be in contact with them and have advice from them. Authors on Show would advise anyone without an agent to seek their help if offered a contract. It may well be the best small outlay you'll ever have made.
Below is an article kindly submitted by Kevin Stewart. Details to contact either Kevin or Stephen can be found at the end of the article.
A New Year’s Contract
Every New Year, a scene is played out in many places across the UK. Let’s sneak a look…
It’s a New Year.
I am going to write a book. It is going to be published. It’s going to be fine because I have (big drum roll….) a Contract from my publisher. What can possibly go wrong? And so to bed.
Sounds good; but let’s fast forward a few months just to be sure our newfound friend is in the clover they imagined.
It’s now winter again. It suits my mood. How much did I make from sales of my book? Could I even buy a copy of it? And now I cannot even get my own rights back because I ‘assigned’ everything apparently! What did I sign? What was I thinking?
I think it’s time we went, don’t you?
So, what is going on?
When you write, in English law, you establish a copyright by the very fact of ‘putting pen to paper’. There is no need to achieve a specific literary level or requirement to register your ownership anywhere. It just comes into place at the moment the words are recorded. So long as they are original to you, that’s it.
Copyright is a property right: like a house. It can be bought, sold, lent, rented, given away. You can do that with the whole of the copyright or just bits of it. For example, you can allow somebody to exploit your work in English but retain ownership of all other languages; or you can licence printed book rights but hold back film and TV rights.
There are two main ways that publishers deal in copyright:
1 By assignment. For an author that is not usually the preferred route. This means you transfer ownership to the publisher. Of course, it may be worthwhile if the money is right; but it is uncommon for novels, children’s books and other works that you have created at your own whim. This is the publishing equivalent of selling your house.
2 By exclusive licence: The copyright stays with you (like the freehold in a house) but you grant certain rights to the publisher for their exclusive use. In other words, they alone can deal in the rights you licence – you only retain the balance of the rights. This is the equivalent of retaining the rights to live in part of the house but not to be allowed into certain rooms because you have rented them out.
Why do you need a Contract?
The more complicated the arrangement, the more opportunities there are for elements to be misunderstood if they are not set out properly. It therefore follows that a good Contract addresses all likely eventualities. For a publishing Contract this will include the rights to be granted (and withheld), the means of exploiting those rights, the reward to the author, what the author is to deliver, with whom responsibility lies for the content and how either party may terminate the Agreement (and the consequences).
What is material to the Contract?
A century ago the average major publisher’s Contract was 4 pages long, now it is 10 or more! In part this is because publishing is more complex than it was in the early twentieth century. With new technology, new routes to market, and new legal issues to be concerned with, there are many elements that a good Contract should consider. Yet we still see many publishers using documents that are no longer than their 1900s’ equivalent.
The length of the Contract is actually irrelevant. However, the shorter the Contract, the less likely it is to be author friendly and any review is as likely to concentrate on what is missing rather than what is actually on the paper. The parameters for setting out a publishing Contract are frighteningly simple:
1 What is the author going to do?
2 What is the publisher going to do?
3 What are the financial arrangements?
4 How does one party ‘get out’ of the Contract if things go wrong?
These simple formulae are the subject of many articles and even books. The Society of Authors offers a very useful Guide to Publishing Contracts. Alternatively, CLARK’S PUBLISHING AGREEMENTS A Book Of Precedents Eighth Edition is the publishing world’s ‘Bible’ on things contractual; but it is probably not for the uninitiated.
The following need to be considered major points any publishing Contract.
Primary Author obligations
1 The author has to write and deliver the work to an agreed specification. You need to ask yourself: (i) can I meet the delivery date? (ii) what am I supposed to deliver? (iii) what happens if I fail or there is disagreement? Primarily, do I have to pay any advance back (not unreasonable) and can I get my rights back at that point?
2 The author usually has to clear the use of third party material that s/he author wants to use in the book. It is, after all, your choice to include quotations. But are you responsible for clearing what the publisher want to include?
3 The author must avoid including anything in the book that will put the publisher at risk of e.g. a libel or copyright infringement claim. You need to look at the warranties and, more to the point, the indemnity. The warranties tell the publisher that the book is e.g. not libellous; the indemnity confirms that you will bear any costs if there is e.g. a libel claim. There is little you can realistically do about this as you are the person putting the words on the page. The publisher does have a right to expect you to back up those words. The truth is that great care has to be taken over the content; the Contract issues are secondary to that and, hopefully, will never be implemented.
Primary Publisher obligations
1 The publisher should publish the book by an agreed date (and preferably in an agreed format e.g. a hardback or paperback). It is, after all, a ‘Publishing Agreement’ so no publisher should refuse to commit to publish within x months of delivery and acceptance of the script.
2 Having published, the publisher should promote the book for sale. Given their investment, there is no practical point in them not doing so. Even if the Contract does not spell out what they will do, you should exercise caution before committing yourself to a publisher who does not appear to have any plans.
3 To pay the author on time. All payments (fees, advances) should be payable on stated events and accounts and royalty/rights income payments should also be regular (yearly at worst)
Note that if you are asked to pay for anything in relation to either publication or promotion, that would be an indication that you are not dealing with a traditional publisher but are possibly straying into dealing with a vanity publisher.
1 You may be paid an advance. This is a sum paid by the publisher against the royalty earnings they expect to pay you from sales. It is a little like a loan in that the earnings have to be earned back before sales generate income for you. However, unlike a loan, you should not be expected to pay back any unearned part unless you are in breach of the Contract.
2 Alternatively there may be a fee. This is a simple payment and is usually made instead of paying you any share of royalty and rights income. Again, you should not expect to pay any part back unless you are in breach of the Contact
3 Publishers will pay royalties. This is a percentage of income generated by sales of the publisher’s own products. It is either a percentage based on the publisher’s recommended retail price (though often with reductions for high discount sales) or the publisher’s receipts from their customer.
4 Publishers generally cannot exploit all your rights themselves so often licence certain rights to third parties. You then receive a percentage of income received by the publisher if they do so. For example, a UK publisher might acquire from you the right to licence translation rights to third parties and then licence a French language edition. .
5 When is the money payable to you? As noted above, it is essential that you know when to expect payment
6 What charges can the publisher make against your account? Are you paying for e.g. a libel read, an index, revisions to your book, etc? Do you have any say over what sums are involved or whether the ‘service’ is actually necessary?
Primary reasons for terminating Contract
1 Publisher’s right to terminate
(a) Author’s failure to deliver anything.
(b) Author’s failure to deliver an acceptable script. Care should be taken to define what ‘acceptability’ is based on. It means neither can change their minds without the other’s agreement.
2 Your right to terminate
(a) Publisher’s failure to publish. You should be able to terminate after notice to remedy has been served and the book remains unpublished
(b) Publisher’s failure to pay on time Ditto
(c) Publisher’s failure to keep book ‘available’. You should be able to serve notice to reissue the book or revert the rights to you. The critical issue is defining ‘availability’. Whose editions keep the book available? Does an eBook or Print On Demand edition’s availability achieve this (regardless of it generating no sales)?
(d) Publishers goes ‘bust’: If they go into Receivership or liquidation then you should be entitled to revert your rights
3 Consequences of termination
(a) if the publisher terminates then you risk having to pay back their money
(b) If you terminate you need to clarify what happens to the money you are owed and what happens to any existing stock and their right to participate in income. The answer to the latter two depends very much on why you are terminating the Contract.
Assuming that each of these issues is adequately addressed, all you then need to do is understand what the ‘norm’ is in terms of what a publisher should do and should be allowed to do. For example:
1 Why should they hold the translation or film rights if they do not have anybody actively licensing the rights?
2 What is a reasonable reserve against returns?
3 What is a fair percentage for royalty or rights income?
4 What exactly are volume rights?
It’s simply impossible to second guess every issue you may come across in an article of this type. If anything, it is the need to know and understand the publishing business to this level of detail that should lead authors to seek agents or other specialist professional advice on the specifics of publishing Contracts. What is critical is not an intimate knowledge of copyright and Contracts or general law, but the application of the business model to the Contract. Understand the publishing business and the Contract falls into place. Fail to do so and you will only see what is in front of you – not that what is there is ‘odd’ and certainly not what is missing.
Let’s be blunt, authors and publishers need certainty from their publishing Contracts. They should have Contracts which properly and fairly address the practicalities of publishing. Each needs to be empowered to go about their business assisted by the Contract, not weighed down by it; and they need to be able to have a dialogue that prevents the Contract becoming a bone that sticks in either’s craw.
Yet beyond all this, do remember the key word in any publishing Contract is ‘agreement’. It is not a gladiatorial contest where one side ‘wins’ and the other, of necessity, loses.
And, being given a Contract to sign, never means you HAVE to sign it. Everything can be questioned and may be negotiated. You would not sell your house or car on terms you did not understand; so why do so with your book?
Kevin Stewart or Stephen Aucutt
Contracts For Publishing Limited
1 Jeffery Close
Kent, TN12 0TH
firstname.lastname@example.org Tel no: +44 (01892) 730770
E-mail: email@example.com Tel: +44 (01580) 892444
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Why you should hire an Editor.
For so many authors seeking agents and eventually hoping to make the roster of a publishing house,
there's always a question of the validity of hiring an Editor.
Yeah. That's SO the wrong approach. Agents and Publishers have so many queries on their desks it's ridiculous. Are they going to go for the one rife with spelling errors, an overabundance of semi-colons, plot inconsistencies, bland dialog, unrealistic characterization ...? Nope. Why should they, when some of the authors have obviously already gone to the trouble and expense of hiring an Editor? Those are the writers who have researched the business enough to know it is a VERY good investment to hire an editor. Think of it this way: If you're going to a job interview, do you toss on the closest available clothing or are you particular about dressing just right? You know they aren’t going to hire someone who doesn't at least care enough to dress well for the interview. Here's another one: if you're shopping for an apple, are you going to choose the shiny one that glows with health or the one dark with bruises?
Having a good story is one thing. But if the packaging is all wrong, publishers won't even get that far.
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Come check out my website www.WritingWildly.com.
Send me your first page and I’ll send you my suggestions - for free.