Anatomy of a Publishing Contract, Part 1

Today’s guest is Raquel B. Pidal. Raquel has a master’s in Publishing and Writing from Emerson college, where she spent two of her semesters studying copyright law, contracts, and rights. She currently works in publicity at Harvard University Press, and is also a freelance writer and editor. She’s also the blog mama of Copyrighteous–a site focused on copyright and writers’ rights issues.

Therese stumbled upon Raquel’s site recently while researching her publishing contract–and trying to comprehend the legal lingo without rupturing too many brain cells. Raquel’s explanations of what you should find in a general contract were both easy to understand and exceptionally thorough, including things to beware and things worth negotiating. Our sincere thanks to her for allowing us to repost the information here at Writer Unboxed, in this special 3-part series running through Wednesday. We think you’ll agree: This is a resource tool you can bookmark and refer back to whenever your eyes begin to cross over contracts.

The Anatomy of a Publishing Contract: Part 1

By Raquel B. Pidal

A publishing contract is one of the most important pieces of paper a writer will ever get her hands on, but unfortunately, it can also be one of the most confusing. And it can be doubly confusing if you don’t have an agent there to help you. Don’t be daunted by the terminology; understanding more about what the different parts mean will help you cut through the verbiage and get to the heart of the matter. Even if you do have an agent who can help interpret what the heck all these terms mean, it’s wise to familiarize yourself with all of it so you’ll be better prepared to work with your agent, or directly with your publisher, to be sure it’s a deal you can both work with.

But before I start, a disclaimer: don’t consider any of this to be legal advice. If you actually have a contract and have questions about it, certainly use the information I’m providing as a starting point for deciphering what all the different clauses mean, but if you have any questions, doubts, or concerns, or need help negotiating, turn to a lawyer who’s got publishing experience, or try to find an agent to work with you.

What is a publishing contract, anyway?

To understand what goes into a publishing contract (and why each one seemingly uses up half a ream of paper), one must first understand the nature of the publishing industry—or, as my old coworker used to call it with a snarl on her face, the “pub biz.” Some people have compared publishing to a casino, involving books. I tend to agree, because it’s all a gamble.

As genteel or artistic as it may seem, publishing is, bottom line, a business. And like any other business, it involves the exchange of goods for money. But unlike some other businesses, publishing is a highly speculative business. A publisher may be pretty good at predicting how certain books will do on the market, but it’s an imperfect science. “Guaranteed” best-sellers may fall flat on their faces while novels of a literary bent may suddenly catch on, thanks to a number of factors that are hard to control: word of mouth, intriguing or timely subject matter, a hot new trend (like ethnic lit or chick lit), a memorable title, Oprah. So like any business based on speculation, publishing is a risky endeavor.

Think about it. Books aren’t a necessity, like toothpaste or gasoline. Books are more of a luxury commodity, something purchased to enhance a buyer’s life by providing extra information or offering entertainment. This means books are purchased with expendable entertainment income and are not necessarily factored into people’s budgets. So when a publisher is determining whether or not your book deserves to be published by their company, they’re not necessarily evaluating the merit or quality of your book, or at least that’s not the most important aspect they’re looking at. They’re evaluating its salability, its potential to make a buyer look at it and say, “Yes, this is worth spending between twelve to thirty dollars of my expendable income on.”

So when a publisher draws up a contract with a writer, they’re making an investment that they hope will be profitable at a later date. Buy low, sell high, hope to earn back the initial investment and some profit. This is why the first version of a publishing contract has terms that generally tend to financially benefit the publisher at the writer’s expense.

Every publisher is different and each one has a unique contract, but they all include the same basic information:
• which parties are entering into the agreement (the author[s] and publisher);
• when the contract begins and how long it lasts;
• what rights are transferred from author to publisher;
• what compensation the author and publisher will receive when and under what conditions;
• when rights revert back to the author;
• what happens if there are legal problems.

Of course, you’ll probably see even more clauses in your contract, but you should be sure that your contract has all these clauses, since they cover essentially all the steps of the publishing business.

Someone’s buying my book! Now what?

After months, or years, of toil, a publisher has finally agreed to buy your book. Your excitement is palpable. You get a copy of the contract in the mail or via email or fax. You’re so excited to get the process started and see your words bound in a book that you sign on the lines and send the contract back to the publisher with hardly a glance at the terms and conditions therein.

If you do this, I’ll be perfectly honest: you deserve a good flogging, preferably with a massively heavy copy of the OED. Common sense dictates that you read something before you sign it or else the only person to blame when you get screwed (because trust me, you will get screwed) is yourself.

Perhaps as a first-time published author you don’t think you’ll understand the legalese. Or perhaps you think that you have to take whatever they offer you or they’ll withdraw the offer and move on to another author desperate to be published. Or maybe you think you have to act fast or they’ll lose interest. None of this is true. Publishers are used to writers (or their agents) negotiating with them to get a mutually beneficial (or at least more mutually beneficial) deal. Publishers are okay with you taking a day or two or more to digest everything, figure it out, get help if you need it. Things don’t happen overnight in book publishing; it may take a year or two for your book to even appear on shelves. Be smart and take the extra time to determine what you’re being offered and what you can do to be sure you don’t get screwed. Don’t sign anything until you’re at least satisfied that you’ve done your best to get what you wanted.

Come back tomorrow for a detailed look at clauses.

Guest

Many thanks to today’s guest.

You can read more WU guest posts by visiting this link.