Friday, January 16, 2009

Or What’s a Heaven For? Writer’s Contracts and More Elusive Things…(than Higgs boson)


Ah, but a man's reach should exceed his grasp, Or what's a heaven for?— Robert Browning, Andrea del Sarto (1855)
I recently signed a contract for the publication of my prequel to Darwin’s ParadoxAngel of Chaos—and mailed it off to my publisher at Dragon Moon Press. As I walked home from the post office in the brisk winter wind, I reflected that this very act was something I’d dreamt about as a beginning writer: signing and mailing off that elusive contract between publisher and writer for a novel. It had so long exceeded my grasp, and here I was, having done it a few times without a second thought. Well, my thoughts were of the movie rights and foreign rights and… yes, soaring ambitions…

Funny, how the reality of a dream invariably translates into a new dream to attain. We are such strange creatures, always reaching for heaven (“or what’s a heaven for?” said Browning above), never completely satisfied, always yearning, dreaming for more. But we are all on a journey, aren’t we? So, perhaps that is a fitting sentiment. Else we should stagnate into complacency…get fat and comfortable and settle for the mediocrity of an ordinary life…not grow…not evolve…not fulfill our destiny to “be more”… Heaven forbid that we should sink to becoming boring!

But, I digress. This post is really about manuscript contracts and I want to tell you a little about them…what a standard novel contract looks like and all the mysterious details that come with it that you need to look for—especially if you are looking at your first contract. Here’s the scoop.


When you sign a contract with a publisher you are granting them the rights to publish your work in one or many formats. These include print formats, film, television, audio, CD, and DVD rights, not to mention regional and language rights. It isn’t wise to sell your rights all at once (called “All Rights”), unless you’re going to be very well compensated for this. Because, once you’ve sold all your rights the work is no longer yours to do anything with.

“The grant of rights clause in a publishing contract is one of the most important clauses because it enumerates the specific rights granted to the publisher by the author,” says the Publishing Law Centre. “Negotiation of this clause has become even more important in today's world where increasingly more uses are being developed for literary content.”

In my recent contract with Dragon Moon Press, I granted them “First World Rights” to publish my novel, Angel of Chaos, for the first time anywhere in the world (often the rights you sell will be more regionally specific, like First North American Rights, particularly if it’s a short story to a magazine). Of itself, the First World Rights does not include the right to reprint an excerpt of my work in another format, such as an anthology, or as an ebook or audio book, or in another language—unless additionally specified in the contract, which Dragon Moon did.

According to the Publishing Law Centre rights negotiated in a book contract fall into two main categories: Primary Rights and Secondary or Subsidiary Rights. Primary rights include only those rights the publisher specifically intends to use. For the print publisher these rights normally include the book publication right for the original hard or soft cover edition and paperback reprint rights, and possibly foreign translation rights, serialization rights, book club rights, and the rights for special editions. Subsidiary rights are those rights that are, as the name suggests, subsidiary to the right of publishing the literary work in book form and include electronic rights, motion picture and television rights, audio book rights, audiovisual rights, merchandizing rights and dramatic or performance rights. Publishers typically ask for several of these in a contract and keep them in their pocket “for a rainy day”.

According to “Publishing Explained” a typical publishing contract will contain the following things:

  • details of the book: format, print run, etc.
  • obtaining ISBN and listings in national catalogue
  • period the contract holds (years or copies sold)
  • what happens after contract expires
  • supply of galley proofs to author
  • copyright issues: who is responsible for checking (often author)
  • royalties to author depending on seller (author, publisher through bookstores, bookclubs, subsidiaries, etc.)
  • when and how royalties are paid
  • terms applying to author for copies (no. of free copies, discounts thereafter)
  • advances (commonly 1/3 at contract signing, 1/3 on submission of galley proofs and 1/3 on return of proofs)—many publishing houses do not offer an advance these days
    how MS is submitted to publisher
  • cost of unauthorized author changes to galleys ($/hour)
  • responsibility for libel, copyright infringement (commonly author, who indemnifies publisher)
  • any guarantees regarding copies printed or sold (generally none)
  • what the publisher will do towards marketing
  • what the author will do towards marketing

Subsidiary rights may be licensed to a third party, where you will get a share of the licensing fees. The matter is complicated, and you may want to reserve subsidiary rights until you get an agent, or have some experience working with the publisher.
According to several sources, including the Independent Book Publishers Association in Californa, the author “typically” receives:
  • 80% from the First Serialization Rights (newspaper, magazine or other periodical publication prior to book publication); translation rights; and foreign language publishing rights
  • 80% from Second Serialization Rights (newspaper, magazine or other periodical publication after book publication); syndication rights; photocopying and other reprographics rights, anthology, abridgement or excerpt rights
  • 75-80% to translate a book into various foreign languages (Foreign Language Rights)
  • 50% from any license to a book club (Book Club Rights)
  • 50% for the publisher to develop an audiobook or to license to an audiobook publisher (Audio Rights)
  • 50% for the publisher to license electronic book rights (Electronic Rights). According to IBPA the industry norm is that the publisher is entitled to create its own electronic version of the book (e.g., an e-book) and to license others the right to do so, but that interactive multimedia rights, which could be used to produce a CD-ROM, for example, are often reserved by the author
  • 50-70% on the right to make non-book products such as posters, toys, games and other merchandise (Commercial / Merchandising Rights)
  • 50% of the proceeds of any license granted to another publisher to bring out a reprint or other edition of the work such as hardcover version, anthology, large-print version, etc.
    90% of any proceeds from a television or movie, live theatre or other theatrical production, DVD, etc. (Performance Rights)

Something to keep in mind is that these percentages are only what’s “typical” according to several sources and they are also usually based on net receipts to the author. 100% of subsidiary rights licensing proceeds are credited against the royalty advance—in other words, the author only starts getting a percentage share once her advance has earned itself out.
According to “Publishing Explained” many book contracts now:
  • Do not ensure publication: you consign your earning ability to another, and your book does not appear, even the modest advance being clawed back if the book is sold on to another publisher
  • Stipulate that your next MS must be offered, completed, to the same publisher, who need not consider it immediately, can turn it down subsequently, and even change his mind if another publisher takes an interest
  • Allow royalties (commonly only 8%) to be cut by half if the publisher sells through a big distributor
  • Ditto if the publisher sells the rights to an affiliate
  • Dispense with royalties if the publisher decides to make the book into a give-away ebook for publicity purposes
  • Require the author bear the costs of any libel suits, whoever is at fault, which the publisher can settle without consulting the author
  • Allow that option to be consigned to third parties, who need not defend the action
    removing last vestiges of author control.
Bear this in mind when you read that first contract. Take your time with it; show it to someone whose opinion you respect and don’t be afraid to negotiate terms with your publisher. Don’t forget that this first step establishes your relationship with your publisher; if you’re a push-over in this matter, they’ll expect you to be one in others too, like the book cover, marketing, etc.
Pretty well most book publishing contract start out something like this:

AGREEMENT dated ___________ between Joe Shmo (“Author”) and Bingo Press (“Publisher”) for a work by the Author now entitled: Joey Goes to Town. (“The Work”).
In consideration of the covenants and conditions contained in this agreement, the Author and Publisher agree as follows:
…then follow an average of 10 to 15 numbered agreements that include the items summarized by above.
Author Moira Allen also provides a good summary on understanding rights and copyright.
More information on publisher's contracts, author's rights and current trends in author-publisher relationships can be found below in my Recommended Reading section.
…Now, back to that dream…

Recommended Reading:
National Writers Union. Provide a Guide to book contracts.Author's Guild. Advice on the book (and other) contracts.What Writers Should Know About All-Rights. ASJA article.Rights: What They Mean and Why They're Important. Writing World article.Electronic Publishing and the Potential Loss of First Serial Rights. One of many excellent articles on this lawyer's site.Publishing Tools. Includes example of author contract.Society of Academic Authors. Their boilerplate contract.Contract Issues: Books Published Online. NWU article.Writers Forum. Many points of interest discussed.Never Release Your Rights To Anyone. One of many WritersNet articles.The "Standard" Book Contract: An Antitrust Lawsuit Waiting To Happen. Author difficulties.Publishing without Borders: Strategies for Successful International Publishing. International rights issues: $25.How To Be Your Own Literary Agent : An Insider's Guide to Getting Your Book Published . Continually revised since 1983 printing.Complete Idiot's Guide to Getting Published. Third edition of this popular series: covers the basics well.




Nina Munteanu is an ecologist and internationally published author of novels, short stories and essays. She coaches writers and teaches writing at George Brown College and the University of Toronto. For more about Nina’s coaching & workshops visit www.ninamunteanu.me. Visit www.ninamunteanu.ca for more about her writing.

16 comments:

Footsteps said...

-Great info, Nina. I imagine a lot of aspiring authors will bookmark this page.

Congrats!!

Jean-Luc Picard said...

That was an excellent piece of information to how authors are published. A new author doews need to be careful.

When I read 'Darwin's Paradox', I was fascinated by the backstory, thinking how it all started would be a great novel.

matushkadonna said...

Fantastic post, Nina, I'm linking to it on the Facebook Warnings for Writers group.

SF Girl said...

Thanks, Heather! Hope it's helpful to people...I just remember how I was just SO JAZZED that they picked my story--I almost didn't care about the contract.

Jean-Luc, thanks for the comment about the prequel to Darwin's Paradox... I've had a number of people comment on the backstory.

Thanks for the link, Donna!

Hapi said...

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Hapi said...

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SF Girl said...

Cool, Hapi...You have a good one too...

blackburn1 said...

Good post, and congratulations!

I do envy you. I'd be jumping up and down and shouting, it seems like such a lottery. I can well understand the elation you must feel. Cheers! =]

SF Girl said...

LOL! yes, Blackburn... time for the old bubbly... :) It IS a bit like a lottery...or more like a box of chocolates...ya nevah know whatcha goin' ta get... might as well enjoy them as you get them...

Princess Haiku said...

Hi Nina,
This sounds very complicated. -But may you find a way through the maze to riches and fame.

SF Girl said...

LOL! Thanks, Princess! I'm actually pretty good in mazes... :) and turns out that writers' contracts are LESS elusive than Higgs bosons... LOL!

Brian Steele said...

Congratulations Nina! I'm nearing the end of the 3rd draft of my first novel. I hope to be in your enviable position soon.

This information about contracts was outstanding.

I'm curious if you had an agent when you landed the contract.

Cheers.

Brian

SF Girl said...

I did NOT have an agent, Brian. It would have been nice to have one, however. Because it's their business, agents recognize what is fair in the market and they are your advocate for rights you may not even realize exist. HOWEVER, you don't NEED an agent to get a half decent contract. In lieu of an agent's help, you just need to be careful, patient and savvy. You get savvy by taking your time and getting a respected person's opinion, preferably someone in the writing industry. There are plenty of published writers who are willing to give you good advice. You can find lots of them at writers conferences and conventions. :)

Brian Steele said...

Good to know. And congrats again!

SF Girl said...
This comment has been removed by the author.
SF Girl said...

Thanks, Brian. I look forward to seeing your published work.