Big Publishers, Small Publishers, and Contract Negotiations
By Sophie Masson | May 13, 2019 |
In a previous post, I wrote about the ‘red lines’ that authors and publishers alike might encounter in book contract negotiations. In this post, which like the earlier one is drawn from a conference paper I presented late last year, I look at another important question for authors: Are big or small publishers easier to deal with when it comes to contract negotiations?
In my home country of Australia, the size and importance of the small and independent press sector has grown exponentially in recent years, which means that more authors and agents are working with small presses than ever before. In the paper, I presented interviews with authors and agents who had worked with both big and small publishers, focusing on how they viewed the contract negotiation experience. The answers offer some illuminating insights on the contrasting experiences and opinions within the industry:
‘Most publishers have a take it or leave it attitude to contracts. The bigger the organisation, the more they exert their will in terms of the details within the contract.’ (author-illustrator)
‘Small publishers are generally more nimble and flexible and are often less intent on holding certain rights so we’re generally able to reserve more for the author. Having said that, there are some small publishers who are inflexible on their terms because of their business model and that can be off putting for creators and/or agents.’ (agent)
‘I have found there has been more room to move in contract negotiations with larger publishers than small. The smaller the publisher, the more limited the budget, the less room there is to move with regards to money. But I have negotiated things like future writing work clauses, division of rights, and the number of copies I get.’ (author)
‘It’s not size but the company. For instance, taking two of our biggest publishers – one is very difficult to negotiate with and has a very hard-line approach, which is actually a disincentive to pitch to them at all, and another is always fair and reasonable to negotiate with – not a pushover, but you know you’ll get a straight answer. Many smaller publishers are great to negotiate with – they know their business and where they can bend, but a few use their small size to (wrongly) try to justify very poor terms for authors indeed.’ (agent)
‘Negotiating with small publishing houses has, in my experience, been quicker and more efficient than doing the same with major publishers, possibly because the deals have involved a lot less money and are therefore lower risk.’ (author)
‘There are many more small publishers and their lack of experience and under-capitalisation make them in my view a much riskier proposition for authors than do deals with larger, more established companies.’ (author organisation rep)
Most publishers, big or small want to acquire all rights in the books that they are buying for a low advance. Which means, more licenses to sell to others and the chances of earning out any advance improve with a low advance. Better profit and loss. Doesn’t matter whether it’s a big or small house.’ (agent)
‘I’ve found the contracts with smaller publishers (and this is just my experience) to be a bit more flexible; I’ve had more say in terms of covers and illustrations. The hardest thing is chasing royalties with certain small presses.’ (author)
On balance, then, most of the authors I spoke to had a fairly positive view of negotiations with small publishers, despite some caveats, as did agents; but it was clear also that it depends not so much on the size, but the company itself.
Over to you: what’s your view on whether it’s easier to deal with big or small publishers? And what shoukd authors watch out for when dealing with either?
Born in Indonesia of French parents, and brought up in France and Australia, Sophie Masson is the award-winning author of over 70 books for children, young adults and adults. Her latest books include Sydney under Attack (children’s historical novel, Scholastic Australia, 2022) A Hundred Words for Butterfly (adult novella, ES-Press, 2022) and Cock-a-doodle-doo (children’s picture book, (illustrated by Kathy Creamer, little Pink Dog Books, 2022). In 2019, Sophie received an AM (Member, General Division) award in the Order of Australia honours list.
This sounds right to me, Sophie. In my experience, it’s the company, not the size.
What to watch out for? Publishers of any size will try to get as much as possible. Authors should read the contract in great detail, and get help with clauses they don’t fully understand. Making a choice is one thing, signing blindly is another.
Great post, Sophie.
Dee
Award-winning author of A Keeper’s Truth
Hi Sophie, very helpful post today. I have a small indie house for my three novels. All has been going quite well for these 5 years and yes, lots of flexibility with this sole owner of a really professional indie house. His personal touch and commitment has been a treasure! One trouble I encountered is that the sole owner recently passed away suddenly. No provisions were made for an executive or POA for the company to return copyrights. I am now in the difficult process of getting back my copyrights because the indie house has stopped operation and will dissolve, no royalties will be paid, no books returned to the authors; what a mess. I suggest to all authors to make sure you have clauses in your contracts that provide for ‘automatic reversion of copyright’ if the company dissolves or stops operating (bankruptcy clauses don’t cover it all). To hire a lawyer to officially get my copyright back in Probate court is a place I really don’t want to go or pay for. Honestly, I had never thought of this and although this situation is probably rare, it’s worth protecting yourself and your books.
Wow, this is SO IMPORTANT! Thanks for posting it for us.
Thanks for bringing this up, Paula! Unfortunately it’s probably not that rare for publishers to fold, especially indie ones run by a single person. Only fifty percent of all small businesses make it past their fifth year of operation.
Five years? Really? This indie house just celebrated their 10th anniversary last year.
Five years is the stat I found for all small businesses. Indie publishers might fare better than businesses like restaurants, 90% of which fail in the in the first year.
Congrats on passing the one-decade mark!
Paula, just want to make a technical point: it’s good to get an automatic reversion of rights for non-performance (read: not paying) or for dissolution of the business or bankruptcy.
However, those provisions don’t always have the teeth that one hopes they will. Getting your rights back for non-performance is good, but not a hop-skip-jump. There will be a “cure” period, and some legal footwork. If a publisher simply goes out of business, same thing: You’re protected but obtaining a document stating a reversion of your rights can prove to be a headache and a half.
Bankruptcy is the worst scenario. Your contract may state that your rights revert automatically, but judges in bankruptcy court don’t give a damn. The law says that the rights granted in your contract are company assets and may be sold off to benefit creditors. You are such a creditor but in a lower class who are “unsecured”; that is, less entitled to a share of the sale of assets.
Yikes! Don’t get me wrong, contracts need a provision for automatic reversion, I’m just adding a caution that the real world experience of getting your rights back isn’t always so automatic.
And that’s to say nothing of what happens to rights deals (like audio or translation) done by the publisher before they go down in flames. But that’s a headache for another day.
Thank you, Don. I so appreciate your thoughts. I am just now beginning to learn how complicated this is and how much time it is already consuming. I’ve contacted the Volunteer Lawyers Association in NY to advise me. I am totally unprepared for any of this. The owner was a great guy, and we had a productive and happy relationship for over 5 years. And what a writing mentor he was for me! The grief of his passing and the nightmare of my copyrights for my three novels in jeopardy is devastating.
One point to remember is that contracts are one thing, while an author’s actual experience with a publisher is another. Contracts don’t regulate how things will go day-to-day; rather, their purpose, in part, is to be a legally enforceable fallback for those times when things go very wrong.
Does the contract and its negotiation forecast the future of a publishing relationship? To some degree, I think so. Tough dealings over contracts tend to happen when publishers, large or small, are focused on their own interests. Flexibility in adjusting boilerplate terms is friendly, and those relationships sometimes prove easier.
But not always. It depends. For authors and agents, the goal is to hammer out a contract that protects the author on the downside as much as possible. (The publishers goal at contract stage is the opposite.)
Once the contract is done and signed, though, comes the day-to-day relationship. That requires work, especially good communication. When the publishing relationship goes well, the contract is largely forgotten. Everyone does what they should and money flows as expected.
It’s not that contracts don’t matter. They do, especially when things go sour. However, contracts are only the starting point. It’s what happens after that which determines whether an author’s experience with a publisher of any size will be a good one.
I’ve been published by large, mid-size, and small, and agree that it’s impossible to generalize because it’s the company and its philosophy, business model, and person-to-person practices, not the size, that creates a good or difficult relationship.
One factor I haven’t seen mentioned is that the large houses tend to have the smoothest operating systems — edits and proofs come when promised, payments are processed automatically with no need to repeatedly request a check, publicity campaigns are organized and reliable (if limited and not typically individualized), and so on. Some have portals where authors and agents can check on sales data, subrights, and more. That’s not everything, of course, but it is worth a lot.
Very informative and agent quotes add even an additional dimension.thank you for doing this.