The Business of Writing: the Small Press Book Contract

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I intended to write a post about transitions today, but I’ll hold that one for later in the month. This week, I want to concentrate on the wording for literary contracts. Which is about as dry a subject as I can imagine. Booooring! But sooooo very important.

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.

Not that long ago, David and Stuart covered contracts in their posts.

David wrote about New York City (big press) book contracts here:
http://magicalwords.net/david-b-coe/writing-your-book-part-xiii-anatomy-of-a-book-contract/

Stuart wrote about short story contracts here:
http://magicalwords.net/stuart-jaffe/publishing-short-story-contracts/

Other posters have written about contracts as well. When one considers all those posts, the writers did such a thorough job that nothing is left to be covered. Except for discussion about small press book contracts, showing you a book contract, and breaking one down, which is what I’m doing this week and next. This post uses a fairly standard Small Press Book Contract with any comments I might make in bold italics and in brackets [ ]. The stuff in parentheses, ( ) is actually included in the contract to make it clear what the language means and to clarify for use throughout the contract. 

The major reason to have an agent (and there are many good reasons) is to have that agent negotiate a sale, then scrutinize, evaluate, negotiate, and (if needed) renegotiate a contract. For the latter part of the 20th century, most literary contracts were pretty standard, containing similar wording for basic agreements, offering similar royalty rates and rights. In fact, the legalese was so standardized it was called boilerplate.

If you want a good, current, recent definition of the term boilerplate, I like these:
http://www.thefreedictionary.com/boilerplate
and
http://searchcio-midmarket.techtarget.com/sDefinition/0,,sid183_gci211686,00.html

But then the electronic age appeared and everything went to heck and back. Everything is different now. Big presses started to see ways to make money in the future through e-publishing, and so they started rewriting the usual boilerplate, adding in small clauses that were never there before, hoping to cash in later on, down the road, with their great foresight. Good agents are now watching for these changes and negotiating them back out. Small presses are popping up like crazy, and many are writing their own contracts (see me cringe) or having lawyers who do not specialize in literary contracts (maybe a pal from the Rotary club or the lawyer who wrote their wills) write them. And when a non-specialist writes a contract, the poo often hits the propeller.

Large press contracts can be 10 to 18 pages long, but small press contracts are usually shorter, and the one I’ll be working with for the next two weeks is 6 pages, from a small, royalty-paying publishing company whose contract is, lately, being sent to newer small presses by agents as an example of a good contract. Meaning – this contract is one that is being used as boilerplate by small presses now. A copy of this contract (without my comments) is being uploaded to the Resources page by our wonderful web mage Todd, so you can copy, study, and have for future reference if you wish. Also, please feel free to tell your friends about the site and download your copy of the Boiler Plate Contract at our free writing downloads page. (Shameless plug for MW!) So, here we go.

LOGO for SMALL PRESS PUBLISHING

[Yes some companies will have logos on their contracts, usually that advertising mark which you might recognize from the spine of the book.]

Agreement. [This means it’s a legal agreement]
Made this ____ day of October, 2010, between

John Doe [This is the author’s legal name, not his pen name, if he has one.]
c/ o Whoopee Wonder Agent at Wonder Agency LLC, P.O. Box 12345, Bronx, NY 10471 [This is standard in cases when an agent negotiates the contract. All moneys flow from the pub to the agent and then, after the agent removes his standard 15% , to the author. Yes, the agent is in charge of your money. If you work without an agent, then this part will, of course, not be there.]

(hereinafter called the Author) [Again speaking of John Doe]

and SMALL PRESS PUBLISHING [name of publishing company] whose principal place of business is in Atlanta, Ga.
(hereinafter called the Publisher).

The Grant and the Territory. [This means the rights the author is giving up to the publisher in return for payment, and where the rights are to be implemented.]
In consideration of the mutual covenants [money to author and manuscript in print would be the covenants] herein contained, the parties agree as follows:

1. The Author hereby grants and assigns to the Publisher for the period of five years [Most contracts are for a specific length of time. Some presses go for ten, or seven, but most don’t hold rights for more than ten – or they didn’t used to, back before the e-age came upon us. Now pub houses often strive for more years and agents are striving to give them less.] from the date of the signing of this agreement by both parties the exclusive world rights [some small presses should never be granted world translation rights because they have no access to foreign presses who might then sell these rights. So why be willing to sign a contract buying world rights? If the agent with whom you signed {Whoopee Wonder Agent} is a small agency, and has no contacts with foreign agents, and if your pub company does have such contacts and can indicate any books it has sold to foreign presses, then this might become a good deal. We should ask our resident agent to do a post about foreign rights.] to publish or sell in book form and ebook form [This lays out what rights the publisher wants and what format in which the book will/might appear.] a Work entitled

BEST BOOK EVER WRITTEN [Name of the book.]

 

(hereinafter called the Work)

This contract is renewable upon its expiration for an additional and successive five year period if both the Author and Publisher agree. [This was taken from old boilerplate and it allows the publisher to reprint the book without going through a lengthy contract negotiation process. In reality, most book rights are returned to the author after the initial publication time and then author/and/or/agent can resell to another press if possible.]

In addition, the Author grants the following subsidiary rights for the full term of the contract and its extensions: paperback or hardcover reprint, [If the book takes off, the small press might want to make more money, and more money for him is more money for you, the writer.] book club, anthology, and second serial. [Let’s be honest. None of these print rights are likely to be purchased, but I know of one small press {the one from which I got this contract} where it has occurred.] The Author will have the right of approval of all such licenses. [This last sentence isn’t always in a contract. You, the writer, want it there. A good agent will make it happen.]

The Warranty.
2. (a) The Author represents that he is the sole proprietor of the Work and that the Work to the best of his knowledge do not contain any libelous matter and do not violate the proprietary rights of any person or persons, do not infringe any existing copyright. [If you knowingly cheat, this binds you legally as being the sole evil-doer, and frees the publishing house from legal claims. Not legal challenge, but legal claims. In other words, the publisher might be sued along with you the author, but you, the author will pay the price. This is why if {for example} you want to use the lyrics to a Beatle song, the publisher will tell you no, take it out. He knows it will never be allowed and you will never get permission.] The Author shall hold harmless and indemnify the Publisher from any claims, demands, or recovery finally sustained, by reason of any violation of copyright or other property or personal right; [Ditto, see previous comment.] provided, however, that the Publisher shall with all reasonable promptness notify the Author of any claim or suit which may involve the warranties of the Author hereunder; [It is the publisher’s job to let you know you are being sued.] and the Author agrees fully to cooperate in the defense thereof. [The publisher got sued too. He’ll marshal his defenses. But you get the bill.] warranties contained in this Article do not extend to drawings, illustrations, or other material not furnished by the Author. [The keyword here is not. This boilerplate has been used for both fiction and non-fiction contracts. Some manuscripts come with drawings. If you furnish them, then you accept the consequences if you stole property rights {used copyrighted material}. Also, know that the publisher might do his own illustrations and toss yours.]

(b) If any rights granted to the Publisher or which the Publisher is authorized to license are infringed, the Author and the Publisher shall have the right to participate jointly in an action for copyright infringement. If Author and Publisher both participate, they shall share the expenses of the action equally and shall recoup such expenses from any sums recovered in the action; the balance of the proceeds shall be divided equally between them. Each party will notify the other of infringements coming to its attention. [If your work is stolen, you and the pub may sue, split the costs, and then spilt the winnings from the thief who plagiarized your work.]

(c) If either party declines to participate in such action, the other may proceed; the party maintaining the action shall bear all costs and expenses which shall be recouped from any damages recovered from the infringement; the balance of such damages shall be divided between them as provided in (a) and (b) above. The Author may, if he chooses, defend such suit with counsel of his own choosing, at his own expense; provided that if he does, the Publisher may nonetheless participate in the defense with counsel of its choosing and at its own expense. If the Author shall defend such suit, he shall not be responsible for the Publisher’s attorney’s fees or costs. [This just covers the publisher’s rights and the author’s rights for separate legal action, so neither is bound by the other’s actions. This clause is important in any contract, as you {the author} do not want to be hit with legal fees you did not incur knowingly, but were foisted upon you.]

Publication of the Work.
3. The Publisher agrees to publish the Work in book form at Publisher’s expense within six months of the receipt of the completed manuscript. [This may be anywhere from 4 months to 24 months. If this is missing, you have no way to force the pub to print or return rights and you are in limbo if the company closes {for instance} between signing and publication. The key words here are: at Publisher’s expense. You, the author, pay nothing, unless you are self publishing, working with a vanity press, or subsidy press. If this is the case, then, according to current definitions, you are not a commercially published writer.] The Publisher will assure the Work is made available to booksellers through Ingram, Baker & Taylor, and other wholesale distributors and the Work will be listed for sale on amazon.com and other online booksellers. [Many small presses cannot guarantee that distributors will have access to your works. They may offer it only on their own website or on your website and a few other online sites – meaning that no one can find your book. Not good.]

No other sales promotion will be guaranteed by the Publisher. [This is standard today. Writers do our own promo until we are making them big money. Then the company might chip in PR money.]

No one except the Author may make any changes in the Work, [If this clause is missing, you get can get back a work totally different from what you submitted.] except that the Publisher shall have the right, after consultation with the Author, [Very important line!] to copy edit the Work (to conform the style of the Work to customary form and usage). [Yeah! Your work will be checked for errors beyond the initial rewrite letter which should given to you, but isn’t always. Please note: there is no line in this contract about rewrite letter. Few small presses work with a developmental editor to improve the plot, character development, etc. of your book. ] The Author shall have the right to approve the finally copy edited manuscript [You should always get to see the final version of your book, called galleys or page proofs. If this line is missing, you should howl.] and such approval shall not unreasonably be withheld or delayed. [You can’t change your mind and drag your feet. You have an agreement to hold up your part of the contract.]

Publisher will consult in advance with the Author concerning the format and style of all trade editions, and concerning the text and graphic material. [Good small presses do this, but not all. Very few large presses do. Large presses have a standardized format and your preferences are seldom {Shall I say never?} considered.]

If publication is delayed beyond the agreed publication date because of acts or conditions beyond the control of the Publisher or its suppliers or contractors, including (by way of illustration and not by way of limitation) war, shortages of material, strikes, riots, civil commotions, fire or flood, the agreed publication date shall be extended to a date not more than six (6) months following removal of the cause of the delay. [A wonderful clause. Except for strikes and civil commotion, this is clause is to protect the publisher from being sued following Acts of God. It gives him time to recoup and get back on his feet. After 9-11, no books were bought by the reading public in this country for months. If I’d had a book ready for release in the months after 9-11, I would have asked it be held back and released later. However, this clause is not for that kind of problem, nor was it designed to protect the writer. ]

Advertisements may not be inserted or printed in any edition of the Work, whether issued by the Publisher or its licensee, without Author’s written consent. [I totally love this clause. No big press will offer this, but some small presses will. Here’s an example: The author of a book about the US electoral process doesn’t have to worry that that an ad will appear in the back of his book, advertising a book by a political candidate the author hates.]

Any license granted by the Publisher to reprint the Work in book club, other editions, or in any other medium except newspapers and periodicals, must explicitly prohibit the licensee from inserting advertisements in its edition of the Work without the written consent of the Author as provided above. The Publisher must also explicitly prohibit the licensee from causing any alterations in the text from the original version without first obtaining the written consent of the Author. [Few presses, large or small, will offer this, and most remove it from their boilerplate, but I loved it when I saw it, so I left it in.]

We’ll stop here today and pick up where we left off on The Copyright portion of Small Press Contracts next week.

Faith                                         
FaithHunter.Net
GwenHunter.Com

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19 comments to The Business of Writing: the Small Press Book Contract

  • Informative stuff, Faith. Thanks.

  • Thanks, AJ. But this is one of the posts that will forever be listed as yawn-inducing for me.

    Ya’ll, Here is the link to the full contrct without my comments:

    http://magicalwords.net/free-writing-downloads/

  • Thanks for this, Faith. I would suggest (if I may) that you find a way to make your comments stand out more (bold? italics?) so that we can more easily get to your insights, which are what all of us want. The contract itself is fairly dry stuff.

  • Faith, thanks for enduring your boredom and pushing through on this. I’m sure many will find it useful. And great idea to put in our Free Writing Downloads section! 🙂

  • Good idea David. It stood out a lot better on my word program. I’ll see if I can do an edit at this late date…

    Stuart, you started it with the previous download — which I have used already!

  • David, I’m not sure it’s any easier to read, but the edited version is up and running.

  • Thanks, this is good to know about! I really appreciate your explanations, Faith.

  • Believe me, this is NOT boring stuff if you’re hoping to get that first book published in the near future (Me with a small publisher!)and want to know just how the gizzards (internal organs)of the business work at all levels …. thanks Faith

  • You’re welcome, Moira and Widdershins. One thing that needs to be added in somewhere are the rights NOT to give away. I’ll make a note for that next week.

  • Young_Writer

    I’ll admitt to rereading this a few times to understand completely, but I really appreciate how you break thing down. Thanks again. 🙂

  • Young Writer, You did good to keep at it! Actually, this language is far more easy to understand than the mumbo-jumbo of a Big Pub Press Contract. Those are just … impossible. When I first started out I didn’t have the kind of mind to find them sensible at all. They put me to sleep! They frustrated me! But the easier language of the Small Press Contract is a good stepping stone in the direction of understanding. Once you *get* this, a Big Press Contract starts to make sense. And yes, I read every word of my contracts and ask questions about things I don’t understand.

  • Young_Writer

    Thank you, and I’ll keep trying to understand it. I want to figure out how the Big Press Cpntracts works, too. I hate not being able to get things like this.

  • Contract lauguage is really its own language — called legalese… 🙂

  • mudepoz

    That explains why I can’t understand the TALL DUDE! I’ve heard that eventually married couples can finish each other’s sentences, but not if we speak different languages.

    I’ve poked my nose into some of his contracts. He has a client that writes Wisconsin history stories. It is photo dense and EVERYONE of the tons of photos needs to get permission to be used. Which means the photographer or family needs to be tracked down. Copyright laws have changed a lot, the period of time they are held beats pharmaceuticals. No Generic Harry Potter for a LONG time:)

  • Errrk. That would be a painful contract to negotiate, Mud.

  • Unicorn

    This cleared things up for me a lot. My mom is a lawyer and used to give me the faulty first drafts or badly printed contracts so that I could draw on the back of them. Occasionally, I’d get bored and read them. This was a few years ago but even now I couldn’t understand a single word from the backs of my old drawings. Er… that was my exposure to the world of law 🙂 Thanks for the really informative post.
    Unicorn

  • You are welcome, Unicorn.

  • mudepoz

    OK, so a Phi Beta Kappa, number one in his law class 3 years ago, change of career after 25 years of teaching chemistry, now Intellectual Property atty (Yes, I find him special) has declared that Faith did an outstanding job concerning explaining the contract. The contract itself is very well written and he was impressed. No, he didn’t yawn, but gave me more information than I wanted concerning…ZZzzZZZZzzz. Now I know what Force majeure is. An act of God can keep a publisher from releasing a book until the printer or the distributor can get the book, et al out. He was surprised to see the term strike in there. Apparently that is often a deal breaker for the acceptance of the contract. It isn’t considered an act of God. Thank goodness I’m just a biologist.

  • I think the strike term was put in because of a major strike in printing houses … or maybe it was the paper industry … I can’t remember. But books were not published for some months (this may have been back in the early per-war 40s. I really don’t remember when.) and then there was quite a backlog. Some companies put it in to cover their backsides, and actually writers were relieved because it meant their books would get published *eventually*, which is better than *never.*

    As to the Force Majeure, I have done do a corrected, better example than 9-11, and will make note of that. The Tall Dude (Mud’s hubby) offered some advice (which I got offline) about that. How about that ya’ll? Free advice from a lawyer! Many thanks to TD, Mud!