Thursday, 8 April 2010

How to read a publishing contract (1)

Publishing contracts can be long and scary documents. It's easy to be intimidated into thinking that you just have to sign on the dotted line and go along with what the publisher wants, but you don't.

If you have an agent, your agent should be good at arguing for you, but some agents are better than others. If you are a member of the Society of Authors, they will look at the contract for you and make suggestions about clauses they consider unfair. If you are not a member of the Society of Authors, join now! You only need one published book (not self-published or vanity published), or one publishing contract, to join.

But having an agent and joining the Society of Authors doesn't let you off the hook. You still need to read the contract, you still need to understand it, and you may still object to things that SocA or your agent don't object to - or you may be happy with things they object to. Remember, it's your book, your career, your final choice. Don't be bullied. And don't be ignorant. If you are planning on being a professional writer, you need to understand your publishing contracts. And remember that to start with the publisher will send your their 'standard' contract. It's where you start negotiating from - it's not the end of the story.

Now, as they're long and scary, I'm not going to go through a whole publishing contract in one go here. We'll do it clause by clause. I will just pick my last contract, so it's a random choice. Every now and then I'll stick in a clause from a different contract so that we cover all (or most) bases. Please, people, feel free to add extra advice and, most importantly, correct any errors in the comments. What I am using here is not quite a standard contract as I have worked with this publisher before and argued with them, so my contracts are now tailored to accommodate the results of previous strops. They sometimes reinsert their favourite clauses to be argued about again, or in the hope that I won't notice them.

Note - this is a UK contract, relating to UK law and I give UK interpretations of the terminology. If you are not in the UK, your contracts will be different. Don't follow my advice and then grumble that it doesn't match your legal system and you've been strung up.

Here we go:

First the preamble:

MEMORANDUM OF AGREEMENT made this ...[insert date before you sign] day of ...[insert month] Two Thousand and ...[insert year] between Stroppy Author, c/o Stroppy Author's agent, Agent Street, London, (hereinafter called 'the Author', which expression shall, where the context admits, include Authors and Author's executors, administrators and assigns or successors in business as the case may be) of one part and Stroppy Publishers of Stroppy Publisher address (hereinafter called 'the Publishers', which expression shall, where the context admits, include the Publishers' assigns or successors in business as the case may be, whether carried on under the present or another style) of the other part

WHEREAS the Author agrees to write an original work for the [Stroppy series], at present entitled:

Stroppy's Latest Book

(hereinafter called 'the Work')

OK. This is a long-winded way of saying who you are, who the publisher is, and what your book is currently called. It means that if you die, or become completely incapacitated, you aren't let off the terms of the contract, the terms just apply to your descendants. It also means that you aren't let off if the publisher goes bankrupt, changes its name, bla bla - the contract will still be in force with whoever takes over. This might mean (for you) negotiating with a liquidator. It might mean (for the publisher) negotiating with your bereft relatives. We won't get distracted into that now. We'll do 'when your publisher goes bust' another day. Let's stay optimistic for now.

So, assuming you live long enough to write the book and the publisher stays solvent long enough to publish it, what next?

In this contract, the book is 'at present entitled' which means you/the publisher might change the title of the book before it is published and the contract will still be valid. The book is now known in the contract as 'the Work' and will still be 'the [same] Work' if the title changes.

Clause 1, then I'll let you off for today:

Rights and Territory
1. In consideration of the payments hereinafter mentioned, the Author hereby grants the Publishers during the legal term of copyright the sole and exclusive right and licence to produce, publish, broadcast and perform the Work or any abridgement, portion or adaptation of it in all editions, languages and forms throughout the world. The Author grants to the Publishers electronic rights for excerpts of up to 150 words from the Work. Further electronic rights are to be mutually agreed.

In consideration of the payments hereinafter mentioned = in exchange for payment; there is a later clause about money

during the legal term of copyright = until 70 years after your death (UK law); varies by jurisdiction, but there is a full list here. If you publish in Afghanistan, there is no copyright.

sole and exclusive right and licence = you can't let another publisher do anything with the book and you can't self publish it or do anything else with it yourself

produce, publish, broadcast and perform the Work or any abridgement, portion or adaptation of it = the publisher has broadcast and performance rights; they can negotiate with the BBC to serialise the book, they can approve (or not) stage performances, readings, audiobooks. You can't do a short version, chunk or re-working of the book for another publisher or broadcaster. Think this doesn't affect you because it's not feature-film material? Think again. It means you can't do a YouTube video of yourself reading from the book without their permission. You can't produce an opera from it, or a puppet show, or a machinima movie. Even if you translate it into Tamil first.

throughout the world = you can publish it on other planets. They are being generous. I have heard of a publishing contract that claimed rights throughout the 'known and unknown universe'. Throughout the world, though, suggests that you could broadcast your work on the basis that you are aiming it at a different planet but unfortunately some people on Earth are listening to the signal when they shouldn't be. I haven't put that to the test, but it looks plausible...

The Author grants to the Publishers electronic rights for excerpts of up to 150 words from the Work = the publisher can use up to 150 words in any electronic form, such as putting it on their website, on Amazon, or including it in other e-books as a taster. This publisher is being very reasonable. (Actually, I insisted on this restriction in an earlier contract and they anticipated another strop if they didn't include it in this one). We'll come back to electronic rights properly another day, but allowing an excerpt is fine. The reason this excerpt is so short is that the book is very short; for a longer book, expect a longer excerpt - but not too long.

Further electronic rights are to be mutually agreed = If they want to make an e-book, they have to ask you first and you will arrange the terms then. I hope the wording of this clause means that electronic rights remain with the author until they are 'mutually agreed', as that's what I asked for. If any legally-expert readers would like to confirm or refute this in the comments I would be grateful. If the contract claims electronic rights here, you MUST argue about the clause. You may want to reject the contract outright if they won't change it.

So, by agreeing to this clause you give up all rights to do anything else with your book anywhere in the world in any language. This is a clause you should argue with. Why should the publisher stop you giving a reading, allowing the book to be read on radio, or make a YouTube video? Do you want your agent to be able to sell foreign rights? Don't you want to make a block-buster movie and sell plushies of your characters? What's wrong with you?

Did I strop?

No. I would have challenged the performance/adaptation part of this clause. In fact, this contract has a later clause clawing back TV, film and merchandising rights so I didn't, but if your contract doesn't have such a clause you must argue to keep some of these rights.

In this case, I didn't strop as my daughter was very ill and I just signed on the dotted line to get it over and done with. Sometimes that happens, but I would try not to do it again. I always want to keep animation rights. I will argue that YouTube and machinima are electronic rights if I want to do either of these later.

Whether you argue about this clause will depend on who your publisher is, who your agent is, and what you plan to do with your book. If your publisher is a large international and will do their own foreign editions, you may want to let them deal with foreign rights, and they may insist on it. If your agent is an expert at selling foreign rights, you might want to argue. If your book is a textbook on integral calculus, you might think the performance rights are not worth keeping. But think carefully - a video of glove puppets explaining integral calculus might be a big hit!

Right, enough for now. I'm off to make a glove puppet show about integral calculus...


  1. I'm appointing you as my contractual legal advisor just as soon as I get offered a contract!
    You're brilliant, Anne, really you are!

  2. Thank you, Nicky - I hope you get a contract *really* soon so I can start my new job!

  3. This is very valuable information.
    June Sengpiehl

  4. Hi Stroppy Author, I enjoyed your comments. I am about to meet a publisher for the first time. Eeeeeek! I have written children books for worldwide publication.....hopefully.
    I am wonderingabout having different publishers in different countries and languages. Any help gratefully received.
    Thanks, Val