Alina Popescu, Writer

From Authors to Author: Five Publishing Contracts Red Flags

From Authors to Author: Five Publishing Contracts Red Flags
April 22
15:44 2017

Publishing contracts are a huge subject, so in this post, I will only skim the surface and share a few things that I have discovered through my personal experience that show bad practice by a publisher.  I am not a lawyer.  What publishing contracts red flags and knowledge I share here have been learned through researching to see if contracts I have been sent are worded in my best interest or benefit the publisher to a greater extent.  If you are currently faced with a contract that’s baffling you, please get professional legal advice and don’t sign it until you know what you are signing.

It’s easy to see why so many authors break out into a cold sweat when they are offered a book deal.  Joy turns to anxiety when they open an email and see the publishing contract for the first time.  Contracts are scary documents filled with words that read like gobbledegook and some of the less scrupulous publishers rely on authors being dazed by complex legal language.  I understand why some authors may blank out, sign, and be damned.

Hopefully, an author who has an agent will make them work for their money and will be provided with solid legal advice about the contents of a contract.  But for self-published authors who do not have the finance for legal advice and choose to negotiate themselves, you need to become proactive and educate yourself on red flag clauses.

When it comes down to it, an author and the publisher want the same thing – to profit from the book.  The author wants a fair deal and to be recompensed for the sale of the book in digital and print.  The publisher wants to pay as little as possible to get the book to market.  Authors should NEVER have to pay for anything listed on a contract.

What Are Publishing Contracts Red Flags?

Publishing contracts Red Flags are clauses that benefit the publisher more than the author.  These clauses are proof of unscrupulous practice and shady dealing.  Like all business transactions, contracts are important in setting down not only the actual business deal but cementing the relationship between author and publisher.  Mutual trust is vital for the start of the working relationship.  Would any of us want to enter into a business deal with someone who was trying to pull a fast one and scam us out of our rightful earnings from our books?  Of course not, so the content of a contract and negotiations about the contract are key to knowing if the publisher is trustworthy.

FIVE THINGS TO LOOK OUT FOR

1. GRANT OF RIGHTS

To begin with, an author who has created a literary work owns ALL OF THE RIGHTS to their work.  With a book deal on the table, the author begins negotiating on what rights the publisher will have access to, what they may or may not do with those rights, and how they will be compensated.  When reading through a contract the author’s goal is to get the book published while keeping as many of their rights as they can.  An author needs to make sure they see the term NON-EXCLUSIVE rights on the contract.  Ensure the contract states exactly what is being granted – The right to publish the book in print and e-book formats for a set term length for a specific royalty and in a specific territory (US, UK, Worldwide etc).

Rights grab clauses are a worry, and if the publisher is unwilling to negotiate, amend, or remove the clause and sub-clauses, I would be concerned about signing.  If a publisher exclusively controls the all of the rights for a book, they make all the decisions; and the author doesn’t get to negotiate terms.  However, if the author keeps their rights and somewhere down the line a third party is interested in the book for a play, movie, or TV series, for example, then they can negotiate that deal separately.

Publishers are generally in a better position to exploit book rights and earn more money from a novel, but the author must ensure that they will be involved in negotiations and recompensed.  If the author agrees to leave a third party rights clause in the contract, the contract must state that the author will be paid separately for any Third Party Rights deals.  Don’t assume that you will be paid.  If it’s not in the contract, any agreements in emails or by phone are not legally binding.

Further reading:

http://www.fictorians.com/2014/03/24/option-and-right-of-refusal-clauses-in-book-contracts/

http://fairuse.stanford.edu/overview/faqs/copyright-basics/

2. NON-COMPETE CLAUSE

This clause says that the author cannot write another book with the same subject or name during the life of the contract.  If you are writing a series and it’s not yet finished this may prevent you from continuing the series because the book would directly compete with the title you are contracted for.  You could offer the publisher first refusal on other books in the series, but one of the problems with this is that if there is a first refusal clause in your contract, the publishers will generally offer exactly the same terms for further books.  This is great for them if your first book is a success, but not so great for the author.  It is rarely in an author’s best interest to sign a contract with a non-compete clause.

Further reading:

http://publishlawyer.com/non-compete-clauses/

3. GET EVERYTHING ON PAPER

It may sound simple, but you would be amazed how many authors are sweet-talked into signing a deal and then in the event of a breakdown in the author/publisher relationship still expect verbal promises to be kept.

When you negotiate your deal, either by email, letter, or phone, promises will be made to entice you to take the deal.  I was promised good royalty percentages, a favourable contract length, and great exposure for my novel at international book fairs.  However, when my draft contract arrived the royalty was not what was agreed by email, and the three-year contract term I expected, was stated as “SEVEN years (5)”.  Yes, you read that right!  The contract actually had two different year terms on it.  Also, none of the things that had been discussed by email were added to the contract.  I did mention this to the publisher and was given an ‘assurance’ via email that they would ‘look after me’ but assurances are as useful as a chocolate teapot.  ALWAYS think of the worst case scenario.  If your relationship with your publisher ever breaks down, the assurances mean nothing and you no legal recourse to get them to provide whatever they promised.  Therefore, if the publisher makes additional promises to secure your book, they MUST amend the contract and ensure that law binds it.

Publishing Contracts Red Flags

4. RAILROADING

One unscrupulous technique publishers use to manipulate authors into signing a bad contract is to send a copy of the contract they have already signed before the author has even had a chance to read the first draft. By rights, you should receive a draft of a contract, read it, seek legal advice, and then ask for anything you are unhappy with to be amended or removed.  A good publisher will negotiate amendments and send you a new unsigned draft.  If you are told there is a deadline and feel you are being rushed then walk away, because that in itself is a red flag and it’s more than likely that the publisher is trying to push you into signing a dubious deal.

TERMS OF CONTRACT TERMINATION

In the sad event that your relationship breaks down with a publisher or the publisher goes broke; the contract needs to be clear about what happens.  If there is no clear clause for termination, that is definitely a publishing contracts red flags, and you need to ask for one to be added and ask the following questions:

  • What are the terms of terminating the deal?
  • What happens to your copyrights?
  • Do rights revert to you and how long will it take to get them back?
  • What happens to any print copies that the publisher has in stock?
  • Can the author purchase the book cover art?

Publishers are getting used to negotiating directly with authors rather than going through agents.  With lots of us self-publishing, it makes sense to do the homework and find out what publishing contracts red flags to look for that is not in our best interest.  Publishers may respond to a modification request by stating: “This is a standard clause.”  This implies that as a self-publisher you are too inexperienced to understand industry standards.  But standards change and practice that some find acceptable others will not, so don’t be put off and hold your ground.

There are lots of resources online to find out about contract clauses, and I have added a few extra links to this post.  Do your homework and follow your gut feeling.  Never believe that the contract you are offered is a ‘one time only’ opportunity.  I walked away from a troubling contract last year and happily, seven months later was offered a financially better and more straightforward deal by another publisher.

Further reading on contracts 

https://iplegalfreebies.wordpress.com/category/all-media-contracts/

http://publishlawyer.com/negotiating-without-an-agent/

About the author

Author Isobel StarlingBorn in Germany, Isobel Starling spent most of her twenty-year professional career making art in Ireland.  She relocated to the UK and, faced with the dreaded artist’s creative block, Isobel started to write and found she loved writing more than making art.

Isobel has just completed her tenth book and signed French, German, and Italian translation and publishing rights deals for the whole best-selling Shatterproof Bond series.  Book #1 As You Wish” is due out as an audiobook in April 2017. Find out more about her books on Goodreads or check all Isobel Starling books on Amazon. To keep in touch with Isobel, connect with her on Facebook and Twitter.

About Author

Alina Popescu

Alina Popescu

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1 Comment

  1. dianne
    dianne April 22, 17:55

    Excellent information! Thank you. Contracts shouldn’t be scary.

    Reply to this comment

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