Publishing Contracts: Promises by the Writer

Blog 62 ImageIn my two most recent posts about a first-time writer choosing between traditional publishing and self-publishing, I looked at copyright and the promises made to a writer in a publishing contract.

This post gives an overview of the promises made by the writer in a publishing contract. In other words, it’s about the writer’s obligations, and since a contract can have a long term, a writer should fully understand her obligations before signing.

Once again, 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. Here are some of the obligations a writer might see in a publishing contract.

Licence to Publish: 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 format. A writer usually is advised to ensure that her contract says the copyright in her book remains her property.

The licence will state the territories it covers. Some publishers will seek broad territories, even the world. A writer should have an interest in licensing only for the territories where the publisher has a demonstrated sales ability.

Since eBooks are now a standard reading format, a writer will likely grant the publisher a licence of the electronic rights necessary to publish in that format. A writer should get proper advice on the exact rights to grant and likely will be advised to expressly retain all electronic rights not specifically granted.

Subsidiary Rights: There is a broad group of rights derivative to a book of fiction in its first language. These include foreign and translation rights, and film, multimedia and other non-book rights. All of these are possible sources of income for the writer. Again, the writer should have an interest in licensing only those rights for which the publisher has demonstrated expertise and sales. If the publisher proposes to use sub-licencing arrangements for some subsidiary rights, a writer should understand the royalty shares and, ideally, have the right to approve the arrangements.

Warranties/Indemnities: A publisher will expect basic warranties that the writer’s work is original, doesn’t infringe copyright and is not libelous. The publisher will also expect to be indemnified, that is, to be compensated, for costs from a writer’s breach of the warranties. Expert advice on the scope of the warranties and indemnities is important.

Delivery of the Manuscript: The writer will likely be obligated to deliver a manuscript to the publisher by a specified date. The publisher will then likely have the right to decide if the manuscript is acceptable and to terminate the agreement if it’s not. A writer should review with her adviser if the publisher’s scope to determine a manuscript’s acceptability is so broad, it amounts to an option on the book. She should also ask if the time to determine acceptability is fair.

Termination: Hopefully the contract creates a happy, long-standing commercial relationship. However, both parties will have rights to terminate the contract, in which case all rights should revert to the writer. A publisher may simply have the right to terminate with written notice after a specified time (e.g. two years). It is also common to see termination rights when a book is out of print. The writer should take advice whether the definition of out of print is reasonable.

Additional Works: A publisher may ask for the option to publish the writer’s next work(s). A writer shouldn’t mistake this for feeling wanted. It is a one-sided arrangement that should be carefully questioned. If the publisher asks the writer to deliver multiple manuscripts over specified time periods, the writer should consider if she can meet, and wishes to live with, that obligation.

The Governing Law: A contract usually says that it is governed by the laws of a specified jurisdiction. If the jurisdiction is not where the writer resides, a writer should consider with her adviser if a large barrier is created to pursuing or defending a claim, both in terms of costs and convenience.

Copyright © 2015 Peter Fritze

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