Wednesday, June 29, 2011

Be Wary of these Clauses in Publishing Contracts

With the surge of authors choosing to go the route of indie, they won't have to worry about contract details with traditional publishers. However, there are still many authors who are signing with publishers or have publishers who come courting them when their self-published titles sells well.  I found the following 2010 blog post from Chip MacGregor of MacGregor Literary. All of these points are still valid today and as Chip says, "Read the fine print of any publishing contract." Chip's blog is here: http://chipmacgregor.typepad.com/


Some really, REALLY stupid things in book publishing contracts according to Chip: 

1. A contract with no title listed and no description of the project. So you're on the hook for...who knows what?
2. A grant of rights that includes everything, including if you ever decide to write or speak on this topic again sometime in this lifetime. (Keep this in mind when looking at the conflicting publications clause -- it's reasonable to expect a publisher gets a window in which the author is focused on their contracted title. It's not reasonable to make that a lifetime ban on the subject for an author -- something I've seen.)
3. A description of the work so broad that you would be considered in breach of contract should you write a thank you note to your Aunt Agatha for sending you that bad Christmas sweater.
4. An advance that needs to be paid back should it not earn out. Paid back?! This is an "advance against royalties," not a loan. For crying out loud -- why not ask 'em to fill out an application? 
5. Royalties that DROP when more copies are sold. (No kidding. Read the fine print.) Take a look at the contracts of some publishing houses -- if your book is sold at a reasonable discount, they'll cut your royalty in half, leading the sales team to SUGGEST THAT VERY IDEA to accounts. Great plan. 
6. Some contracts have words that basically say, "If we re-sell the idea to other people, we get to keep all the money." I've seen this happen a couple times -- and in BOTH circumstances it led to really bad feelings with the author. 
7. Be wary of the term "excerpts." It sure looks like some publishers can take excerpts from the books they're publishing, repackage them into a new product, and pay you, um, nothing. Zero. Zip. Zilch-a-rooni.
8. I recently saw a "reservation of rights" clause that described what the publisher reserved, but failed to mention anything for the author. Uh, the reservation of rights clause is there to protect both publisher AND author. Consider the wording carefully, so that you basically retain the rights not specifically granted to someone else.
9. I've seen several contracts that offer no definition of acceptance. In other words, "If we don't like it, tough luck."
10. An opt-out clause. I started seeing this a few years ago. It basically says, "We want to publish your book...but if we change our minds, you're screwed. Pay us our money back." Look, lots of people want out of a bad deal. But there needs to be some sort of reasoning offered -- it's not an acceptable manuscript, or it has libel potential, or you didn't write the book you'd promised, or they just saw you getting arrested on COPS. Those are reasonable reasons for canceling a book. The fact that the publisher woke up and decided he or she simply no longer wanted to publish your novel probably is not reasonable.
11. No publication time limit. I have a friend who turned in a piece more than 11 years ago. It's still not made it to press, but the publisher won't give it back, and doesn't have to because the contract states they don't have to publish it until they feel like it. (I'm not making this up.) 
12. The copyright in the name of the publisher. A bad idea.
13. While I think option clauses have their place, I remember the bad old days when one publishing house tacked on a double-option for every book you did with them. So the more books you wrote, the more books you owed them! You could never complete your contract.
14. Indemnity clauses that only flow one way. In other words, if anybody ever sues us, for any reason, the AUTHOR is expected to pay for it. (Don't laugh. I've seen it more than once.)