When Publishing Contracts Go Bad

drmofe writes: "It's not just recording artists who are getting screwed over royalty payments and publishing rights. MediaChannel has an op-ed piece asserting that standard publisher-author contracts are now so restrictive that they might in fact be "restraint of trade" under the US anti-trust laws."

Comments

An Alternative: Choose a Small Press

[Schlemphfer]

Yes, publishing contracts are exploitive. And they are probably exploitive no matter who you sign with.

One way to reduce your exposure to exploitive contracts is to sign with a small press. If you're a first-time writer, you're likely to get a level of support and effort behind your book that is better than what you get with the big houses.

And there's another advantage. If you sign with a small press, you develop a close relationship with the owner of the company. My first book was published by a small press, and I've since become good friends with my publisher. There's (sometimes) a limit to how badly you can be screwed by a contract, when you're not dealing with a monolithic corporation, but a person who knows you -- a person who signs your royalty checks and has to look you in the eye.

I've had pretty good success with my first book (25,000 copies sold.) For any writers out there, I strongly suggest you find a competent and energetic small press, or, better yet, publish the thing yourself.

Missing the point

[Outland Traveller]

There are many problems in book publishing and many ways in which the little guy is getting screwed by the corporation, but the boilerplate contract, as analyzed in this article, is the least of it.

Termination clauses
Contracts are a two-way street. The publisher promises to publish the book as long as the author delivers what he promised to deliver. There are a few set ways in which a contract can be terminated:

1. The author fails to deliver the book. At all. Every contract stipulates a delivery date, and there is usually a grace period for extenuating circumstances, or the contract is renegotiated. If the author still doesn't turn in the manuscript, there really isn't any way the publisher can publish it.
2. The author delivers something substantially different from the book that was proposed and agreed upon. In this case the author is pulling the old bait-and-switch on the publisher, and there should be no obligation to publish a different book from the one the publisher thought they were contracting for.
3. The author can also terminate a contract if he has delivered everything according to the contract but the publisher fails to publish within a certain time frame (usually a year to 18 months -- typical lead time for a fiction/nonfiction work is 9 months from delivery of manuscript to publication). The author does have some recourse against the big evil company.

Termination clauses are never invoked casually -- before the contract is even drawn up the publisher has decided they like this author and their book, and they want to publish it. They've scheduled it for some future date and they're counting on the revenue it'll bring. So they may be amenable to stretching deadlines, or reworking a manuscript that doesn't come in as they expected, but they're rarely going to ditch it altogether. They've invested in the book, and if they terminate the contract they're out the money already paid to the author. Sure, the author has to pay it back if they manage to sell it to another publisher, but it's only fair since the second publisher will no doubt have paid him another advance.

Options
The case presented in the article is one of many possible option clauses; not all are so "Draconian". Rarely is the entire manuscript required before the publisher needs to decide whether to take on the next book or not, though it's true they're unlikely to commit to another book from an author before they see the sales record of the first one. But then again, how often is the next manuscript all finished before the first book is out? In the case where another book is already in the works and destined for another publisher, there are often amendments to the option clause to allow for it. As for putting an author's career on hold indefinitely, that author'd be a fool to agree to an option clause that didn't give the publisher a time limit to make an offer on the option work.

Royalties
Book royalties may not be that impressive, but the truth is most books don't earn out their advances in the first place. So for all the haggling over royalty rates, most authors won't see a dime after their last royalty advance, and the publisher swallows the difference. In those rare cases where the book does earn out, the author will almost certainly negotiate a better rate next time.

Yes, you can negotiate the terms. You can even get an agent to do it for you if you're willing to part with 10-15% of the earnings in exchange for a better deal and most likely a better relationship with your editor, one that isn't soured by a rough contract negotiation. Don't want your book excerpted somewhere embarassing? Ask for approval on licensing; you may get it.

If you want to point out problems with publishing, look to the conglomeration of publishing houses into massive corporations that care only about the bottom line, guaranteeing that the majority of potential authors never get offered that contract in the first place. (Ironically, that approach doesn't seem to have made any more money for the publishers than simply putting out the books they love.) The focus on commercialism paired with the increasing ability of Barnes & Noble to drive the book industry from the creation of books through to sales is a bigger part of what's wrong with book publishing today.