Publishing Contracts: Promises to the Writer

Blog 57 ImageIn my last blog about a first-time writer choosing between traditional publishing and self-publishing, I had a look at copyright in a fiction manuscript. This has set me up for two blogs about traditional publishing contracts, which only writers working with publishing houses will have.

Today’s post is a broad overview of the promises made to a writer in a traditional publishing contract. The next post in this series will be about the promises a writer makes, that is, a writer’s obligations.

First, though, I need to give some important cautions.

  • My posts are not intended as legal advice and shouldn’t be relied on as such. They’re for general information.
  • Contract laws vary by jurisdiction.
  • Contract terms vary according to jurisdiction and negotiations.

So, if you’re a first-time writer considering signing a publisher’s contract, you must get advice from a lawyer qualified to review the contract.

I don’t have a traditional publishing contract but I reviewed some standard forms and looked at materials from The Writers’ Union of Canada. It reminded me that a contract can have a long life. So a writer needs to negotiate her best deal before signing, or at least fully understand what she’s getting and giving.

In a traditional publishing contract, the most fundamental thing a writer gives to the publisher is the right, or the grant of a licence, to publish her book, in written and probably eBook form. In Canada, The Copyright Act expressly gives the owner of copyright this ability. I’ll have more to say about the extent of the licence to publish in the next post but, likely, the publisher will want broad rights and the writer will want to retain as much as she can.

So what are the main promises a writer gets in return? Again, contract terms will vary but here are some of terms a writer might see.

Obligation to Publish: A publisher generally commits to publishing the writer’s book in a time period like twelve or eighteen months from delivery of the manuscript or signing of the contract. If the publisher doesn’t do this, the contract should end and the writer keep any advance. However, this promise of the publisher likely will be subject to warning periods and events beyond the publisher’s control. Also, if the publisher has broad rights to deem a manuscript unacceptable, a writer has really only optioned her book.

Royalties: These are calculated as a percentage of some measure of revenue from the book. The writer should get outside advice to determine whether the offered percentages and revenue measures for hardcover, trade paperback and eBooks are the standard ones.

Advances: A publishing contract often gives a writer an advance on royalties, paid in instalments at different stages before the writer completes her manuscript. This can be an important source of income for a writer. My general understanding is that advances for first-time writers occasionally are still sizable but that, more and more, they’re shrinking.

Termination Rights: Hopefully the writer’s book sells and the commercial relationship between the writer and publishing house continues for a while. However, circumstances can arise where either party wants to terminate the agreement, with the result that the rights the writer has granted the publisher revert to her.

The contract should give the writer the ability to demand the reversion of rights after warning periods if the publisher hasn’t met its obligation to publish or make royalty payments, or when the book is out of print. How “out of print” is defined can become very important. For example, is it loosely based on availability or something more specific like sales, and how is eBook availability taken into account?

A writer will also want rights to revert automatically if a publisher becomes bankrupt.

Approvals: The contract can give the writer the right to consent to changes in her manuscript and its title, and possibly also to consent to the publisher’s cover design and to grants of subsidiary rights in her book such as translations.

Marketing and Promotion: A writer is attracted to a traditional publisher for its promotional power. My review suggested that publishers avoid contractual promises about marketing and promotion.

No Assignment: The writer is expecting to work with the publisher she’s chosen. The contract should say the publisher cannot assign the contract without her consent.

To summarize, a traditional publishing contract is a potentially long-term arrangement with real, but fairly narrow, promises to the writer. So while that contract gives a writer key protections, ensuring she’s chosen a publishing house with the proper record of success for her type of manuscript is much more important.

Copyright © 2015 Peter Fritze

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