The Business of Writing: the Small Press Book Contract, Pt 2.
This is part two of the Small Press Contract. This is also the moment when I think carefully about what I have been writing and decide to cover my hiney. I have added a disclaimer to part one, and it’s also at the top of part two.
Disclaimer: I have been reading literary contracts for over 20 years, and have had them interpreted to me by literary agents and lawyers. But I am not a lawyer. I do not have any legal training. Nothing interpreted herein is intended to be used for legal purposes. End of disclaimer.
In addition, I made an edit in the previous part last week, after a very fine lawyer pointed out that I had misled you about one paragraph in the Publication of the Work section, (part 3). If you are considering a small press contract, be sure to reread that part. (It’s where I mentioned 9-11.) I implied that a writer might petition a pub for a better release date in the event of one of the Acts of God mentioned in the section. Not so. This section of a contract is to protect the pub, not the writer. I should have realized it might be mistaken and changed my point. I have done so.
Okay. (rubs hands together.) Onward! Contract is in regular font, my comments in bold and [ ] s.
4. The Publisher shall register the copyright and imprint the copyright notice required by law in each copy of the Work. Thereafter the Publisher shall, prior to the termination of the first term, make timely application for renewal of copyright under existing United States Copyright Law, provided this contract shall, at that time, be in force and effect. [Despite such a promise, not all pubs actually register for a copyright for your work. Although the service is cheap at $35.00, (our tax dollars at work to protect all writers) it can be time consuming. Over the years some pubs have been discovered that they let this slide, saving editorial and other costs and to simply assume the copyright as valid under existing law. (Read this part of the first sentence of this section again: imprint the copyright notice required by law in each copy of the Work. They assume that is all they need to do for the writer. Not so. For full protection under the law, it needs to be registered.) Personally, I want my work copyrighted in fact, not just in assumption. And while we are talking about copyrights, let me say this—it is not necessary to copyright your work prior to seeking an agent or publisher. In fact, it has long been considered a mark of an amateur to do so. It is a publisher’s job to take care of copyright. That said, be sure to do your homework. Make certain that the agent or pub you are looking at is legitimate. There are plenty of sites on the Internet that can give you advice about scams.]
5. The Publisher shall furnish the Author with an electronic or hard copy page proof of the Work which shall conform to the completed manuscript as submitted by the Author. The Author agrees to return such proof to the Publisher with corrections within thirty (30) days of the receipt thereof. The cost of alterations in the galley proof or page proof required by the Author, other than corrections of printer’s and/or editor’s errors, in excess of ten percent (10%) of the original cost of composition, shall be charged against the earnings of the Author under this agreement provided that the Publisher shall promptly furnish to the Author an itemized statement of such additional expenses, and shall make available corrected proof for inspection by the Author. [This is called page proofs or galleys, and is the final version of the book you have sold. Back when typesetting was done by hand, (yes, every character, letter, space, comma, etc, was literally placed by hand, by lifting the wood or metal character out of a drawer and placing it—setting it—onto a rack that became the template for the page. Each page.) the typesetter would invariably make mistakes. Then a very few copies were run off and sent to editor and writer. It was at this time when the author would catch the typesetter errors. Author had numerous versions to catch his own errors before now. If he caught his own errors at this stage, it cost money to change. The page proofs were not and are not the time to be making authorial changes. The proofs were the time to catch errors not yet caught. These days, books are typeset electronically, and a version is sent to editor and writer. And while not many pubs enforce the cost to the author clause, many simply don’t make the final changes the author wants. Writer’s bad.]
Advances and Royalties.
6. The Publisher shall pay to the Author the following advances and royalties: [The fun stuff!]
An advance of $1.00 against all sums due the Author under this agreement. [Yes, you are with a small press. Yes you get very little up front. You might get more than one dollar. Some presses offer $100.00 or even $1,000.00.] but small presses are … um … small and usually run on shoestring finances. You may still earn a lot of money on your book, but not up front. Only through earned out royalties.]
A royalty based upon units sold per title of:
8 percent of the retail price thereof on the first 2000 copies sold,
10 percent on the next 8000 copies sold,
15 percent on all copies sold in excess of 10,000.
No royalties shall be payable on free copies furnished to the Author or on copies purchased by the Author from the Publisher at a discount or on complimentary copies for review, sample, or other similar purposes, or on copies destroyed. [The more copies the pub sells, the higher percentage you make. If you buy copies yourself and sell them, you make no royalties, but you do get a big discount and you can make good money on that percentage. Some writers are brought up short on the words copies destroyed. This means that when booksellers and stores order your books and do not sell them, the books are often destroyed and only the covers sent back as proof that they were not sold.]
Free Copies and Discounts.
7. The Publisher agrees to present to the Author ten (10) free copies of the Work. The Author shall be permitted to purchase copies directly from the Publisher at a discount of forty percent (40%) from the retail price plus shipping costs. No royalties shall be paid to the Author on these books. [I think this is pretty self-explanatory.]
8. All compensation received by the Publisher by a third party for the publication of extractions, abridgments, or for serial use after publication in book form, or as a book club selection, or for e-books, or for any other editions shall be divided in the proportion of 50% to the Author and 50% to the Publisher. [Lets say that the pub is approached by Writer’s Digest to reprint for their members the BEST BOOK EVER WRITTEN. The publisher can negotiate a contract on John Doe’s behalf and Johnny Boy gets half the proceeds. Pretty great, as it spreads his name and fame and he didn’t have to go out and try to sell it himself. A lot of writers call this found money, as it seems to simply drop into your hands. Can the pub do this without your approval? No. See further down.]
The Publisher is authorized to permit publication of the Work in Braille, or photographing, recording and/or microfilming the Work for the physically handicapped without payment of fees and without compensation to the Author, providing no compensation is received by the Publisher. In case compensation is received, the Publisher shall pay the Author fifty percent (50%) of the proceeds. [This is standard practice. It was also once standard to allow the work to be done in audible format on hardware just for the deaf, though with the advent of better software and more audio books on the market, this is beginning disappear.]
Licenses and Permissions Procedures
9. The Publisher shall grant no license without the prior written consent of the Author. Copies of contracts shall be furnished by the Publisher to the Author or his representative and the Author’s share shall be paid within ten (10) days of the Publisher’s receipt thereof. [You own your work. No pub can sell it elsewhere without your permission. If this or a similar clause is not in your contract, renegotiate!]
Attorneys’ fees, agents’ commissions, duplicate plates, or other expenses, shall be deducted from the proceeds of licenses granted by the Publisher before payment of the Author’s share. [I think this is pretty self-explanatory, with the possible exception of the words duplicate plates. Any lawyers here? Any idea what that means?]
Verification of Accounting.
10. The Author shall have the right upon written request, to examine the books of account of the Publisher insofar as they relate to the Work; such examination shall be at the cost of the Author unless errors of accounting amounting to five (5%) per cent or more of the total sum paid to the Author during the period of review shall be found to his disadvantage, in which case the cost shall be borne by the Publisher. [If the publisher cheats you and you call him on it, and you can prove it, you get money. However, it’s dicey to challenge a pub. Even if you win, you lose, because no other pub will ever pick you up, out of fear. Most writers I know don’t challenge numbers. They suck it up and, if they feel cheated, move to different publisher.]
11. Whenever the Author receives an overpayment of monies under the terms hereof, the Publisher may deduct such overpayment from any further sums payable to the Author under this contract; provided, however, that the term “overpayment” shall not apply to unearned advances, or payments relating to other books. [If they overpay you, you don’t have to give it back, but the pub can later take it out of moneys he owes you.]
Statements and Payments.
12. The Publisher agrees torender semi-annual statements in March and September of each year following the publication thereof, showing an account of sales and all other payments due the Author for the previous periods ending in December and June. [Two times a year, you get an accounting.]
Statements shall include the following information for each title covered in this agreement:
(a) For each royalty rate listed in Clause 6, the number of copies sold, the number of copies returned, the amount of current royalties and the cumulative totals. [You get to find out how many copies you sold under each percentage point as stated above in section 6.]
(b) The number of copies distributed gratis for publicity purposes, or other purposes, the number remaindered, destroyed, or lost. The number sold directly to the Author at discount. [You get to discover how many books you don’t get paid for.]
(c) The amount of reserves withheld in the current statement, and the amount of reserves withheld as of the previous statement. [Reserves??? What is this??? Simply put, bookstores can order books and hold them for months—sometimes even years—and return them unsold at a later date. So, to cover his behind, your publisher will hold some money in reserve. I have books by a big name publisher with my books still in reserve since 1996. Oy…]
(d) The Publisher may set up a reserve which in its opinion will allow for returns during the two royalty accounting periods following first publication of the Work. This reserve shall not exceed fifteen percent (15%) of earnings due the Author in the respective royalty periods. [This protects the writer from publisher excess. If a clause like this is missing from the contract, renegotiate.]
(e) If the Publisher shall, during the existence of this agreement, default in the delivery of semi-annual statements, or in the making of payments as herein provided, and shall refuse to deliver such statements or make such payments, this agreement shall terminate without prejudice to the Author’s claim for any monies which may have accrued under this agreement or to any other rights and remedies to which the Author may be entitled. [If the publisher disappears from the face of earth, without going bankrupt, with no legal notice to you, and the only way you know it is that he stops sending notices, the writer gets his rights back. This is pretty important, because mom and pop pubs can literally disappear. They operate from a PO Box. If they close the box, well, the writer is in trouble without this clause.]
13. If the Publisher shall otherwise fail tocomply with or fulfill the terms and conditions hereof, or in the event the Publisher is adjudicated a bankrupt or makes an assignment for the benefit of creditors, or liquidates its business, this agreement shall terminate and the rights herein granted to the Publisher shall revert tothe Author. In such event all payments theretofore made to the Author shall belong tothe Author without prejudice toany other remedies which the Author may have. [All small presses need this clause. I know a writer whose book was sold to a small press that went bankrupt, and he lost the right to sell the work elsewhere. And the book had not yet been published. He had to move heaven and earth and pay a lawyer to get his rights back.]
14. All rights in the Work now existing, or which may hereafter come into existence, not specifically herein granted, are reserved to the Author for use at any time. Reserved publication rights include, but are not limited to, the right to publish or cause to be published inany form, excerpts, summaries and novelizations of dramatizations and motion pictures of the Work, thereof, not toexceed seventy-five hundred (7500) words in length, tobe used for advertising and exploitation of motion pictures and televised motion pictures, or dramatizations based upon the Work. [You get to keep certain rights to your work that, if they book should be come wildly successful, you can then sell. It is recommended not to give away audio rights, dramatic rights, etc. You also can use up to 7500 words of your novel to make book trailers or other promo material.]
Assignment. Arbitration. Notices. Waiver.
15. No assignment of this contract, voluntary or by operation of law, shall be binding upon either of the parties without the written consent of the other; provided, however, that the Author may assign or transfer any monies due the Author or to become due the Author under this agreement. [If the publisher does not sign this contract, you, the writer, can’t hold him as bound. If you, the writer, do not sign, the publisher can’t hold you as bound. And the moneys that come to you can be given to someone else if you wish, a charity, or friend, or a family member, and the publisher can’t forbid this.]
16. Any controversy or claim arising out of this agreement or the breach thereof shall be settled by arbitration in accordance with the rules then obtaining of the American Arbitration Association, and judgment upon the award may be entered in the highest court of the forum, State or Federal, having jurisdiction. Such arbitration shall be held in Rock Hill, SC. unless otherwise agreed by the parties. The Author may option, in case of failure to pay royalties, refuse to arbitrate, and pursue legal remedies. [With the exception of royalties, you agree to keep legal proceedings out of court and in legal arbitration. Arbitration is when lawyers from each side (or one independent lawyer or a consulting firm of lawyers, etc.) sit down talk and try to come to an agreement. It is a civilized action, the price tag is less than courtroom costs for both parties, it’s legally binding, and it keeps the courts free of what, to many, may appear to be trivial cases.]
17. Any written notice required under any of the provisions of this agreement shall be deemed to have been properly served by delivery in person or by mailing the same to the parties hereto at the addresses set forth above, except as the addresses may be changed by notice in writing; provided, however, that notices of termination shall be sent by registered mail. [Part one: If one of you moves, the mover is responsible to notify the other party. If one of you moves and the other party can’t find you, then it’s the mover’s fault. Part two: If one of you terminates the agreement, it has to be sent registered mail as proof of delivery.]
18. If any term or provision of this agreement shall become invalid or unenforceable, the remainder of the agreement shall not be affected. [Most contracts are predominately cover-your-butts pieces of paper. This tiny little part says a lot and it covers a big hiney. If something in the world changes and the law covering part of the contract can’t be enforced, you are off the hook. But far more importantly, so is the press. If congress passes a law about something in the contract and making the clause null and invalid, then the other parts still stand. Like that. It covers the unforeseeable future.]
19. This agreement shall not be binding upon either the Publisher or the Author unless it is signed by both parties and delivered to the Publisher within a period of sixty (60) days from the date of the agreement. [You got 60 days to sign. If you forget, the publisher might remind you. And then again, he might not. You never know.]
20. All sums of money due the Author under this Agreement shall be paid to and in the name of the Author’s Agent, Whoopee Wonder Agent at Wonder Agent Agency LLC, whose receipt shall be a good and valid discharge of all such indebtedness. [If Whoopee Wonder Agent keeps all your money, the publisher is not responsible. You, John Doe, signed with her.]21. Regardless of the place of its physical execution, this contract
shall be interpreted under the laws of the State of Georgia and of the
United States of America. [This is where the publisher is located,
unless he moves. You live in Australia? You get to fly in for any legal proceedings. He moves to Alaska, he gets to fly in.]
BEST BOOK EVER WRITTEN
SMALL PRESS PUBLISHING — Publisher Date
SMALL PRESS PUBLISHING
P.O. Box 432551
Atlanta, Ga., 111111
I hope this helps. And remember, I’m not a lawyer. But every contract is written in English. Well, sorta. Legalese is a form of English. Next week, I’ll be back to talk about transistions. Stuff that isn’t soooo boooooring.