Thursday 30 September 2010

How to read a publishing contract (27)

And so we come to the last clause of the contract:

27. English law

This Agreement shall be deemed to be a contract made in England and shall be construed and applied in all respects in accordance with English law and the parties hereto submit and agree to the jurisdiction of the English courts.

Obviously you only get this clause if you're in England. Or not so obviously.... I've had it in a contract with a publisher based in India and one in Scotland. If you and the publisher really are in England, you can't argue with this clause - you just are subject to English jurisdiction. And they have bigger sticks than you do.

OK, so now you understand everything, and you've argued about anything you don't like or didn't agree with. You might have argued about some extra things, just for practice - that's fine, I approve. If it has gone well, the editor/legal department will have removed clauses you don't like (such as waiving your moral rights) and will have reworded clauses as necessary (such as limiting the rights you are selling or licensing). If you have difficulty getting the publishers to change the contract, send the contract to the Society of Authors (if you are in the UK). If you're a member, their contract advice is free; if you're not a member, there is a small charge.

And if you're happy with it? Or at least willing to accept it? Take your favourite pen, sign it (initial every page if they want you to, have someone witness your signature if they specify that) and send it back.

Now you can open the champagne - congratulations!
Oh - and don't forget you have to write the book. I'm not here to tell you how to do that. Go and see that crabbit bat Nicola Morgan or someone.


Monday 27 September 2010


This week (25th September - 2nd October) is Banned Books Week, organised by the American Civil Liberties Union to raise awareness of the banning of largely innocent books by belt-thumping Americans who (on the whole) live in Texas. I am particularly aware of it this year, partly because I've been writing about censorship and children's books for The New Humanist, and partly because I'm one of the 17 writers to have had a book banned this year. The full list is here. Oh, and the whole of Time-Life Magazine. I'm rather pleased with my 'banned' status as I like being the polar opposite of a bunch of ignorant, anti-intellectual, fundamentalist fools (and wasn't the Bible full of violence last time I looked?) - but at the same time, I don't approve of book bans.

The reasons given for banning this most recent set of books include sexual content or nudity, political objections and 'violence or horror'. My book was banned for 'violence or horror', which came as something of a surprise - perhaps they didn't get beyond the cover. Let's take a look inside. It's called Zombies on the Loose, and it's a simple book for reluctant readers. It shows what lies behind the zombies seen in movies, revealing the history of belief in the undead and the science behind the real people who have been zombified and used as slave labour. It's a light-hearted educational book that uses teenagers' enthusiasm for zombie movies as a way in to teaching something about a different culture. I'm not sure which bit the banners object to. Perhaps it's the first spread, that gives a typical account of a movie zombie. Or maybe it's the true story of a woman thought to be a zombie in Haiti. Or the true account of a man who was enslaved by a bokor, a witch-doctor believed capable or turning people into zombies. Or the instructions for turning someone into a 'zombie' (entranced slave) and keeping them in that state (not detailed enough for a reader to do it).

I'm in illustrious company. Previously and currently banned authors include Shakespeare, Harper Lee, J.D.Salinger, J.K.Rowling, Roald Dahl, and Judy Blume. Step outside the classroom, and we can add James Joyce, Jean-Jacques Rousseau, William Golding, John Steinbeck, Arthur Miller and Chaucer to the list - with plenty of others.

It goes without saying that only fear motivates book bans. After all if the views held by the censors were self-evident truths, no-one would be swayed by reading something that showed a different view, would they?

Take a stand against censorship by supporting Banned Books Week, perhaps by borrowing and reading one of the banned books that will be featured in library displays this week. Here are some useful links:

The books banned this year

The reasons those books were banned

A longer list of banned books, over the years

Some ridiculous reasons given for banning books

An eloquent argument against banning books on sensitive subjects
, and a brave personal testament from children's author Lucy Coats.

Sunday 26 September 2010

How to read a publishing contract (26)

Only two clauses to go, and they're about being stroppy, so perhaps we'll do them both at once. W00t- stroppy-fest!

26. Arbitration

If any differences shall arise between the Author and the Publishers touching the meaning of this Agreement or the rights and liabilities of the parties thereto, the same shall be referred to the arbitration of two persons (one to be named by each party) or their mutually agreed umpire, in accordance with the provisions of the Arbitration Act 1950, or any amending or substitute statute for the time being in force.

This means if you disagree about agreeing you have to agree on how to stop disagreeing. That's no better, is it? It means your understanding of the contract is not the same as theirs, and you discover this because you argue about something, can each pick someone to argue for you - like a court case but cheaper. Don't pick your partner/neighbour/best friend. Pick someone who knows what they're talking about. (Of course, if your partner/neighbour/best friend is a lawyer specialising in publishing law, use them anyway.) You could ask the Society of Authors to represent you in the fight. Note that it will not be a physical fight, so someone big, strong, fat as sumo wrestler or trained in martial arts is not necessarily the best choice - unless things go badly wrong, or they also happen to know about publishing law. In which case, please send me their email address.

I'm not sure who might be a 'mutually agreed umpire', but I suppose depending on the nature of the dispute you might agree on a lawyer who is not representing either side. But lawyers are expensive - make sure you don't stand to lose more than you could gain if you follow the legal route. If it's a small and naive publisher you might get the to agree to go to the Society of Authors as umpire, but that word 'Authors' in the name might alert them to the possibility that the Society might take your part.

What to disagree about (if you're looking for a chance to use this clause)? It suggests the meaning of the contract, the rights and liabilities. Rights are the most likely cause of dispute as new rights emerge from nowhere without warning, rather like the discredited spontaneous generation of worms from mud. If you signed a contract in 1995, app rights were not even a glimmer in your publisher's eye so you might now argue about those. In 2020, are you going to be arguing about holographic rights? The best way to avoid this is to withhold all non-specified and future rights from the agreement, or at the very least put a time limit on them - if additional rights are not exploited in a year they revert, for example. You don't want the publisher holding on to rights they are not going to use when you could exploit them. But now we're going back through the contract to the rights clauses, so perhaps you should take another look at those to make sure you won't need this arbitration clause.


Monday 20 September 2010

How to read a publishing contract (25)

This contract is begging to go back in the contracts file. It really hasn't enjoyed its excoriation, it clearly thought it could hide all its secrets. Well, it can't. Mwahhaha. I'm not sure there are any secrets left.

25. Notices may be sent by pre-paid post addressed to the address of the party to be served stated herein or last known to the party serving the notice, and, if so sent, shall be deemed to have arrived in due course of post.

WTF? I hear you think. Quite - this is as arsy a bit of legal gobbledegook as you're likely to come across. It means you and the publisher can write to each other using the postal service and the normal assumption will be that the letters will arrive at their destination fairly promptly. So - you may use the last address you have for the publisher, and they may use the last address they have for you. It's easy to check a publisher's address as it will be online. It's less easy for the publisher to check your address because you aren't stupid enough to have your address online, are you? This means it's important to keep your publisher informed of any and all changes of address. All your publishers, that is. If the publisher(s) deal with your agent, this isn't quite as important, but it is still good practice to do so. What if your agent retires or dies, or you part company? Yes, they should inform your publisher (not of their own death, obviously) but you don't really want to rely on them to do so.

in due course of post = next day or so for first class letters, a bit longer for second class letters at the moment. But this can change in certain circumstances - such as during a postal strike, or at some point in the future when the postal service is routinely worse than it is now. The clause means the normal state of the post prevailing at the time you send the letter.

Of course, we don't really send letters to our publishers using the postal service. Apart from sending back contracts, I don't think I've sent an envelope to a publisher for years. It is important to keep your publisher informed of your email address, as that is the usual method of communication. The best solution is never to change your email address - I feel a post about email addresses coming on. If you use the email address given to you by your ISP, you'll lose it when you change ISP. It's much better to register your own domain. Yes, we'll do a post on email addresses and domain names. (Some people use the phone - if you do that, make sure your publisher knows your phone number. I spend half my time trying to get publishers to forget my phone number as I hate phone calls.)

That's it for notices. There are two clauses left, and they are not very interesting. Not selling this, am I? At least they're short.


Thursday 16 September 2010

How to read a publishing contract (24)

The end is nigh - think I'll put that on a board and walk up and down Oxford Street. Oh, it's been done already. Today's clause is about ends - the end of the contract. And we're near the end of the contract series, too. Phew.

24. Termination of Contract

Should the Publishers (save with the Author's consent) at anytime by themselves or anyone acting on their behalf wilfully fail to fulfil or comply with any of the provisions of this Agreement within 1 (one) month after written notice from the Author to rectify such failure, or should the Publishers go into liquidation, other than voluntary liquidation for purposes of reconstruction, this Agreement shall thereupon determine and the Author shall be free to license any other person to print and publish the Work, without prejudice to the rights of the Publishers and any third party in respect of any agreement properly entered into by the Publishers hereunder with any such party.

OK, this looks hard, but don't panic.

Should the Publishers ... wilfully fail to fulfil or comply with any of the provisions of this Agreement - essentially, this means 'if we don't publish your book'. The key word is wilfully. If they just can't be arsed to publish the book, if they prevaricate and faff about and publish other books that they think might sell better, you can give them notice (ie tell the to stop faffing about and publish it). If they don't do something about it within a month you can terminate the agreement. Don't expect printed books in a month, but a scheduled publication date, perhaps even some PDFs to check might be realistic. If the failure is not wilful - if they have no money, if they have been closed down by a flu pandemic, if the printer has screwed up, if the editorial assistant has absconded with the files - you have to let them get their house in order. What are the chances of a publisher admitting it has wilfully failed to publish your book? Quite.

If the publisher goes into liquidation the contract is over. That's good. But it can't be voluntary liquidation. That's not so good, as there are (some, small) publishers that make a habit of going into voluntary liquidation every so often to clear out all those pesky debts and dodgy commissions. They seem to treat it as a kind of colonic irrigation, to be repeated every couple of years when they can feel all those bad debts and dud books beginning to clog up their corporate gut. You won't be able to fish your book out of the nasty slurry that comes out of this exercise. Yuk. You probably don't want to touch it anyway.

determine = terminate. No, I don't know why they don't just say 'end' or 'terminate'. Maybe someone else knows?

So if they go bust or fuck up on purpose you get the book back and you can sell it to someone else. Yippee!

This clause is rather brief. You will often also find here a reference to the work going out of print and the rights reverting (returning) to you in that case. Usually, if the publisher doesn't produce or plan a reprint within a certain specified interval you can tell them to produce one. If they don't, you get the book back and can publish it with someone else, or self-publish it, or put it on a website, or whatever you like. This is called reversion of rights - all rights in the work return to you, like homing pigeons. (This is not generally the case with flat-fee books which were considered work for hire. You've sold all the rights, not licensed them, so you don't get them back.) Even so, it's not easy to re-sell a book that has been previously published and gone out of print; don't hold your breath. You might just want to stick the pigeons back in their loft and leave them there.


Thursday 9 September 2010

How to read a publishing contract (23)

Today's clause is a miserable one to be contemplating when your book is new and shiny - indeed, is still a twinkle in the publisher's eye. It's like taking out a pension plan for your newborn, or even planning its place in the family crypt, or adding it to the family tree with its birth date and an ominous hyphen which the death date will one day follow. This clause is about remainders - the remains of your book after its demise.

23: Remainders

The Publishers may sell part or the whole of the residue of any edition at a reduced price or as a remainder at the best prices such remainder stock will fetch, the Author having first been given the option of purchasing some or all of such copies at the remainder price, such option to be exercised within 14 (fourteen) days of notice being given to the Author at their latest known address of the Publisher's intention to remainder the work.

Remainders are copies of the book which the publisher cannot sell. Originally, a book was remaindered when bookshops no longer ordered it to keep in stock. Now, of course, a book may sell through Amazon or the publisher's website in a steady trickle, or even occasional drips, and there is no clear point at which the book is no longer selling.

In the best possible case, your book will never go out of print, and will continue to sell even after your death. More realistically, your book will sell for a while and then it will drop from public view, or be superseded by a more up-to-date book. If you are lucky, the print run will sell out and there won't be piles of unsold stock to worry about. These days, a publisher may move your title to POD (print on demand) if the print run sells out but there is still a very small demand for the book. (Whether you should accept a POD edition as in print is a moot point, and one we will deal with on another day.) In the worst case, sales will drop off while the publisher still has a substantial stock of the books. Then they will try to recoup some of the money tied up in the stock, and being wasted on storage, by remaindering the book. This means they will sell it to anyone who will take it at a knock-down price. This clause says they must first offer the remainders to you, at the same price as someone else is prepared to pay. Whether you should take them is a separate issue, and not one for today. Pride (hurt) will tempt you to buy them, but think about what you might do with them first.

Now, the publisher will give you 14 days in which to recover from the shock of being remaindered and then say how many you want to buy. If you are in the habit of going away for more than 13 days at a time, you might miss your chance. I'd suggest that you ask for the publisher either to give you a bit more time, or to contact you at your last know real address AND last known email address. We would hope, of course, that the publisher knows where you live as they are sending you royalty cheques. If you have an agent, ask them to contact your agent, too. I know it's not nice to do this now, and might feel like negotiating a pre-nuptial agreement, but it's only a few moments of pain and may save you substantial disappointment later.

Once you have the remaindered copies, it's up to you what you do with them. You can sell them yourself if you can be bothered. If you do school visits or readings, this might be a very real possibility.

And finally.... being remaindered is not the worst thing that can happen to your book. I remember hearing the following conversation between two authors a few years ago. No names, I'll call them A and B:

A: Hello, B, how are you?
B: A bit glum. My book is remaindered in Galloway and Porter [a now-defunct bookshop in Cambridge].
A: Oh, I'm sorry to hear that. [pause] I wish mine had been remaindered.
B: Why?
A: It was pulped.

Yes, if the publisher thinks they can't shift your book however low the price, they will have it pulped - literally, turned into paper pulp. They have to pay for this, so they only do it if your book is so unsuccessful they can't even give it away and have to pay someone to take it away. You could ask that the publisher adds a clause to say they will give you the remainders if they are planning to pulp them - but that might suggest you lack confidence in your book, so I'd suggest you leave that request until they offer you the remainders for money.


Monday 6 September 2010

How to read a publishing contract (22)

OK, I'm only doing this clause because I'm supposed to be writing a book. A book for which I have a contract, have signed the contract and have spent half the advance. Ho hum. I have written precisely 385 words of this book and am already falling prey to displacement activities.

Today's clause applies to a book that is well and truly written and has been out there for a while and is likely to carry on selling. Not the current book, then.

21. Revision of the Work

The Author agrees to revise the Work for each new edition when requested in writing by the Publishers to do so and from time to time to supply any new matter that may be needful to keep the Work up to date, and such revisions, editions or changes shall be deemed as being part of the original Work. In the event of the Author neglecting or being unable to revise the Work or supply new matter where needful, the Publishers may procure some other person to revise the Work or supply new matter.

This is a sneaky clause. It means you have to make changes to your book, with no mention of extra money, whenever the publisher tells you to do so. Some non-fiction books need constant updating to remain current - others might occasionally need an unexpected change. (You wrote about the solar system when Pluto was a planet? Unlucky - take out all that stuff about Pluto and fill the pages with something else.)

If you're writing a work of fiction, this clause probably won't apply to you and may not be present (but I have copied it from a fiction contract, so don't assume it won't be there). I can see cases in which it might conceivably affect a work of fiction. Suppose you'd written a nice picture book in 1938 about a kind little boy called Adolf Hitler. Sales might drop off after a while, and the publisher might like to reissue it with the character differently named.

If you are writing the book for a flat fee, you must get this clause changed to say that you will make changes for a fee to be agreed at the time. It is completely unreasonable for the publishers to expect you to make changes forever under the terms of the original contract with no more money. And it's not in your interests. If you don't make the changes, the book goes out of print. So what? You weren't getting any more money from it anyway. Now you can write the replacement book for more money.

This version of the clause doesn't make any mention of money, so you might want to clarify what will happen if you think it will affect your book. If they employ someone else to do the changes, will your royalty be reduced? Will they try to recoup the cost from you? Will the other person's name be on the title page as well as yours? (You will have to share the PLR in that case.) I'd do this in addition to adding the bit about making the changes for an agreed fee. After all, you don' t know when they will turn up and ask for changes. It could be immediately after a family tragedy, or it could be the morning you sign a 25-book deal and won't have a spare moment for nine years. Though, of course, you can always get spare moments by skiving the task you are supposed to be doing...


Saturday 4 September 2010

How to read a publishing contract (21)

Copyright keeps cropping in this contract - it's a bit of an obsession with publishers, rather like food is with chefs. This one is about other people infringing your copyright.

20. Infringement of Copyright

If at any time during the continuance of this Agreement the copyright of the Work in the reasonable opinion of the Publishers be infringed, and the Author after receiving written notice of such infringement from the Publishers refuses or neglects to take proceedings in respect of the infringement, the Publishers shall be entitled to take proceedings in the joint names of the Publishers and the Author upon giving the Author sufficient and reasonable security to indemnify the Author against any liability for costs, and in this event any sum received by way of damages shall belong to the Publishers. If the Author is willing to take proceedings and the Publishers desire to be joined with the Author as a party thereto and agree to share the costs, then if any sum is recovered by way of damages and costs such sum shall be applied in payment of the cost incurred and the balance shall be divided equally between the Author and the Publishers. The provisions of this clause are intended to apply only in the case of an infringement of the copyright in the Work affecting the interest in the same granted to the Publishers under this Agreement.

Let's untangle this. In plain English it means:

  • if the publisher spots copyright infringement, they will suggest you take legal action to stop it
  • if you don't want to, the publisher will take action - you won't have to pay anything, but neither will you get any of the money the publisher may get from the case
  • if you and the publisher act together against a copyright infringement (and win), first costs will be covered and then any money left over will be split between you.
The very last bit of the clause means the publisher is only interested in anything that affects their interest in the book. So if someone translates the book into Spanish and sells it, but your publisher doesn't have foreign rights, they don't care. It's then up to you to pursue the Spanish pirate on your own.

the Author after receiving written notice of such infringement from the Publishers - In my experience, I'm the one who spots copyright infringement - usually in the form of pirate digital versions of the book - and tells the publisher, so the first bit of this clause rather misrepresents the publisher as a vigilant guardian of rights when in fact they are either blithely unaware of what is happening or turning a blind eye because they can't be arsed to pursue it. That's not a criticism - I fall into the category of 'can't be arsed to pursue it', too.

If the Author is willing to take proceedings and the Publishers desire to be joined with the Author as a party thereto and agree to share the costs - the publisher will only want to act with you against copyright infringement if they think there is a good chance of winning enough money for it to be worthwhile. If the publisher doesn't want to join in, think carefully about whether you want to pursue it. I would say 'get very good legal advice' but that will cost you (perhaps more than you stand to gain). The Society of Authors might be your best port of call.

If the infringement is in the form of an illegal download of your book, which is by far the most likely form, you can issue a take-down notice. This involves telling the pirate that they are infringing your copyright and you want the material removed within 24 hours. We'll look at take-down notices another day. It is not, in my view, worth spending any money on trying to enforce this. If the download is popular it will spring up in dozens of other places within days or even hours. Give in gracefully and be glad your book is popular.

If you are Dan Brown and someone has ripped off your book to make either a more dire book or a moderately good book, you probably will want to pursue the infringer. But if you're Dan Brown, you can afford to. Remember, too, that a high-profile law suit will give publicity to your book (good) to the infringing book (bad) and to your litiginous nature (bad).

If you are suing JKRowling for stealing your idea about wizards, you are a loser in all regards. Give up now. The only possible reason for doing this is to get a bit of publicity and then drop the case before it costs anything. You might get a few sales from the curious, but it's scant recompense for looking a total plonker in the publishing world.

One you might like to look out for if you are minded to pursue copyright infringers, and you've written a non-fiction book that is essentially a collection of facts, is other books, websites or applications that use your collection. The copyright in a collection of facts does not depend on the words used to express the facts, so if someone has copied your book of 1001 boring facts about cars and made a website of it, you can sue them (if you like - I'd prefer to ask for a link to the book on Amazon). I think we'll have a post on copyright in facts at some future point as it's a strange case.

Should you argue with this clause? Personally, I wouldn't bother UNLESS you don't keep copyright in the book anyway. If you have sold copyright (as you might in a licensed character book or some children's non-fiction, for instance) then infringement of copyright is of no interest to you and you don't want to waste your time on it. You won't get any money back, no matter what, so why even read the email from the publisher telling you PiratesRUs of Uzbekistan has copied your book?

Thursday 2 September 2010

This book is disgusting (competition!)

Time for a competition - hurrah! My lovely editor at Barrington Stoke has sent me extra copies of Grim, Gross and Grisly to give away to my very tolerant blog-readers and twits. Be sure you want to win before you enter... the book is disgusting. The strap is 'Disgusting facts about people' and it contains horrible details about humans, what they've done to their bodies and things that happen to them. I would like to say it came with a free sick-bag, but budgets are tight and the publishers wouldn't do that, so bring your own bucket.

So how do you win this horrible tome? You need to prove you can stomach it by sending me your own disgusting fact. I'll extend it a bit and say it can be about humans OR animals. Either put your disgusting fact in the comments here, or stick it on twitter with the hash tag #grimgrossgrisly and my name (@annerooney) so I can find it easily, or put them on my Facebook author page. Most horrible facts win! The number of prizes depends on how many facts you all send in, so start trawling for grossery now.

Judging is entirely subjective, and facts taken from any of my previous books do NOT qualify.