What authors need to know about publishing contracts - before they sign on the dotted line. What are you giving up and what are you getting?
First - There is no such thing as a "standard" publishing contract.
Second - Publishers are in business to protect themselves, while maximizing their profits - they are not in business to benefit or protect authors. As such the Publisher's Contract will be designed to protect the publisher. It's up to each individual author to protect themselves.
As authors we are "buying" a service from the publisher (yes, this even applies to conventional publishers). And we are "paying" for that service (know as "publishing") by assigning some or all of our legal rights to our work (know as our copyright) to that publisher when we sign a Publishing contract.
Any such contract has long term, legally binding consequences and we better understand exactly what they are BEFORE we sign.
One good source of information regarding this subject is - "The Rights of Authors, Artists, and other Creative People" Second Edition: A Basic Guide to the Legal Rights of Authors and Artists by Kenneth P. Norwick & Jerry Simon Chasen.
This book is an excellent reference which should be on the shelf of every author however, I would not consider it a substitute for having a good agent and attorney in my corner.
Too often as authors we become so embroiled in the struggle to write a decent book in the first place and with finding a willing publisher in the second place that we can be inclined to simply accept any contract offered for our work. Don’t do it.
The major lessons from this book are:
- Copyright protection is pretty clear
- The "Fair Use" clause of the Copyright Laws are pretty murky
- There is no such thing as a "standard" publishing contract
- Everything about publishing is negotiable
- Any contract the author is offered from a publisher is likely to be slanted very heavily in favor of the publisher
- Unless you are an attorney specializing in publishing, the aspiring author should (at minimum) obtain representation by a good agent and a good attorney BEFORE they sign any publisher's contract
- Carefully consider and understand every clause of the contract
- Don’t be afraid to ask for what you want
- Decide on your priorities - as your unlikely to get everything you want
- Be willing to walk away from the deal if the publisher is unwilling to meet your minimum needs
Don’t sign anything unless and until you completely understand and agree to the immediate and long term ramifications of every clause in the contract.
Lack of caution and due diligence in this arena can be your ruin as an author.
Signing a publishing contract can and will have long term ramifications not only for the particular work in question but ones whole career as a writer.
What you don't know - can harm you.
The following is an example of things to watch out for. This one can have particularly nasty consequences.
What happens if your publisher gets sued for something in your book?
"In most form contracts from publishers... the author makes many 'representations' and 'warranties' to the publisher and agrees to 'indemnify' the publisher against losses if certain contingencies occur... The author will reimburse -- fully indemnify and 'hold harmless' the publisher from -- any expenses (including its attorneys' fees and any damage award or settlement) incurred from any claim asserted against the book even if the claim is without merit." - "The Rights of Authors, Artists, and other Creative People" Second Edition: A Basic Guide to the Legal Rights of Authors and Artists by Kenneth P. Norwick & Jerry Simon Chasen.
So, let's see, some jerk sues the publisher of your book alleging some completely false claim - and you have to pay the legal bill for the defense. Yup - if you sign a publishers contract with a "hold harmless" clause like that described above.
And just in case you think this kind of stuff doesn't happen - I have a good friend who spent 10 years in court fighting a bogus law suite. He finally won - but it cost him over a quarter of a million dollars in attorney fees to "win".
Buy this book, read it, and keep it handy. Writing is a business and any author who does not understand the rules of the game - will suffer the adverse effects of playing the publishing game.
Publishers are in business to protect themselves, while maximizing their profits - they are not in business to benefit or protect authors.
At best an author's relationship with a publisher should be approached as an adversarial business relationship. The author must use caution and due diligence to achieve a very clear understanding of the exact rights he is relinquishing and exactly what he is getting for those rights before he signs any publishing contract. This book is a good place to start.
Richard A. McCullough
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