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Book Review: Understanding and Negotiating Book Publication Contracts
Understanding and Negotiating Book Publication Contracts, prepared by Brianna L. Schofield, Robert Kirk Walker, Katherine Bridge, Alfredo Diaz, Karen Graefin vom Hagen, Anna Kuksenkova, Henry Nikogosyan (Berkeley: Authors Alliance, 2018).
The latest and largest of the series of guides from the Authors Alliance covers publication contracts for all types of books (previous guides on open access, rights reversion, and fair use were covered on this blog). The guide covers contracts from both trade and academic publishers so some aspects of the discussion will be more relevant for trade books rather than academic books. (Also worth noting is that neither the book nor this blog post constitute legal advice, and in the interest of full disclosure, I was one of the Kickstarter backers for this book.)
The guide is the product of interviews with many authors, publishers, agents, and copyright experts, as well as more than fifty survey responses from authors. Some of those responses are captured in text boxes for “success stories” and “cautionary tales”; in addition, fictional “literary lessons” are also set apart from the main text. A book publication contract “outlines what rights you as an author are granting to your publisher and on what terms” (p.4): it is certainly not something to accept as easily as software terms of use. Indeed, the authors insist that signing a contract without negotiating is a mistake. A book publication contract must be in writing and signed, and it is especially important to save copies of it for future reference.
Prior to negotiation, authors should determine their goals for the published book. Is it important to retain copyright, or to be able to re-use the content in certain ways, or to keep the price low, or to have final say on design choices like cover art? The guide recommends that authors “devote extra attention to clauses in their contracts that affect the long-term availability of their books” (p. 14). The guide explains what “in print” and “out of print” mean in the era of print-on-demand and digital publishing, and recommends a threshold of yearly sales to be called “in print.” If a book does not meet that threshold, an author may be able to regain rights to the book. At a minimum, don’t assign rights to the publisher that the publisher can’t use.
Copyright is a bundle of rights: “the exclusive right to reproduce, distribute, make derivative works, publicly perform, and publicly display the work.” (p. 51). The grant of rights from an author to a publisher can come in three forms: assignment (copyright transfer), an exclusive license, or a non-exclusive license, but most contracts will involve either assignment or an exclusive license. Regardless of which form the grant of rights takes, the scope of those rights can be limited, for example, by language, geography, format, and/or duration. Duration may particularly be worth considering, since the current term of copyright is life of the author plus 70 years. If a publisher goes out of business, for example, it may be difficult if not impossible to recover rights for the book. In an interesting “success story” on limiting duration of rights, an author granted exclusive rights to a publisher for five years, after which rights were non-exclusive. This allowed the author to post an openly-licensed version online, while enabling the publisher to recoup costs during five years of book sales (though there is some evidence that the online availability of books can help print sales). If a publisher won’t accept a limitation on the duration of rights, an author can ensure that there is a rights reversion clause or a “license-back” in which certain specific, limited rights are returned. It’s also possible to include a “revert-back” clause, sometimes known as “use it or lose it” clause, in which rights that are unused by the publisher in a certain period of time revert back to the author. Another way for authors to hold on to rights is to include a sentence specifying that any rights not granted in the contract belong to the author. Subsidiary rights, which are specific rights that the publisher can license to a third party (such as translation or movie rights), can be an important revenue generator, and are usually shared with the author. If a publisher is unwilling to change the subsidiary rights language, an author can stipulate a right to approve these licenses, or at least be consulted.
A section of the guide covers an author’s obligations, such as those relating to the manuscript’s length, delivery date, and procedures for copyediting, proofreading, and indexing. Contracts typically require permission to use third-party material included in the manuscript (which is also common in the copyright transfer agreements for peer-reviewed journal articles). While this generally applies to only those materials that require permission, an author might ensure that the requirement does not cover all third-party material, which overlooks fair use of copyrighted works, as well as materials that are openly licensed or in the public domain. For the book’s copyright, the contract should specify which party will register the copyright and when. Although copyright is automatic under U.S. law, registration within three months of publication will protect against infringement and allow for statutory damages.
What about the money? Academic authors shouldn’t expect much here. Advances, however, are common in trade publishing, and are credited against income from book sales. Royalties are usually expressed as a percentage of the publication price, net income, or net profit– it’s important to understand each calculation (there’s a chart on p. 204). Both trade and academic book contracts may include an escalation, or an increase in the royalty percentage once a sales threshold is reached, and most contracts provide for regular accounting statements to be sent to the author, and should be insisted upon even if you don’t expect significant sales.
Understanding and Negotiating Book Publication Contracts, like the other Authors Alliance guides, is a clear, easy-to-read guide focused on an author’s control of their works, particularly the ability to make the work available in whatever form the author wishes. The guide is a valuable resource for all authors, and is an open access book (licensed CC BY) available online in PDF. Those readers who prefer print can order a copy ($30) from the Authors Alliance, or check it out from Newman Library. For more information, see the Authors Alliance’s Publication Contracts resource page, which includes a link to author success stories in negotiating book contracts. Also of possible interest is the Model Publishing Contract for Digital Publishing, a Mellon-funded project of Emory University and the University of Michigan.
(Thanks to Peter Potter, director of Virginia Tech Publishing, for reviewing a draft of this blog post.)
