On Book Contract Provisions, Part 2

Am I Protected Against Mutilation of My Work?

One contract provision states: "When we have mutually agreed upon the final manuscript including artwork, index, and all material needed to create the final, publishable, version of the book, we will begin publication and distribution as quickly as possible consistent with our normal quality procedures."

This is too vague, and almost all on the side of the publisher. But it does say "mutually agreed upon," so you do have the legal right to stop publication if they've done something you don't like. This may be hard to enforce, but it's there, on your side. Once upon a time, I had to invoke this provision when the publisher's copy editor completely changed my ms. The publisher, McGraw-Hill, honored my request and ordered a new copy edit, which was terrific and improved the book immensely.

So, don't forget you have this provision (and if you don't, insist that it be put in). And it might help if it were made more explicit, perhaps an entire sentence or paragraph of its own, just to be clearer. (I think some publishers don't want you to notice it.)

When Will the Book Be Published?

No time is specified in the above contract paragraph. "As quickly as possible" is worthless because it's meaningless. Other such worthless phrases are "in a timely manner" or "when appropriate."

Several of my students have suffered when their publisher delayed publication for such a long time that a timely book became worthless. You should ask for a time limit in the contract (suggest 6 months after you submit the final ms., or some other time appropriate to the material) after which, if the book is not published (available for sale), you can terminate (but don't have to) and offer the book elsewhere.

Who Owns the Artwork?

Another typical contract provision states: "You understand and agree that any cover or other artwork supplied by us belongs to us or the owner of the artwork, and that you may not use it without express written consent from the owner of the artwork."

In the old days, authors seldom provided their own artwork. Now, with computer graphics, the practice is quite common. So, you should insist on a similar statement about any artwork you supply--they get to use it in the book, but may not use it elsewhere without your written consent. A common exception is in promotional material for your book.

If the publisher asks you to supply graphic material, you might also ask for some money up front (not an advance against royalties) for the expense of preparing your own artwork. Nowadays, you've probably given the publisher digital copy of your ms. This saves them the expense of "typesetting" they used to swallow in the old days, but no publisher that I know of has revised their standard contract to give you any credit for saving them this expense. You can ask, but you probably wont' get it. Illustrations, however, were typically paid for in my old contracts, so you have a chance here.

Who Prepares the Artwork?

Still, if you're publishing technical material, you probably want to prepare your own graphics (with advice from the publisher's people on layout). Why? Because you're probably going to have to give them detailed proofs anyway so as to avoid most of the illustrator's mistakes.

But don't be arrogant. Publishers do know something about how things will look in a finished volume, so listen to their advice and ignore it at your peril. Book design is more complex than it looks to the novice, so beware of the suggestion that you provide "camera-ready" copy. More than one book has been killed by an author who thought s/he knew more than the publisher about design.

On Book Contract Provisions - Part 1.

I'm frequently asked by my students to review their first book contract. They are always so excited that they're ready to sign the first boiler-plate version the publishers offer, no questions asked. Half a century ago, I was the same way, But over the years, I've learned that it pays to ask. Nobody has ever withdrawn a contract offer because an author asked politely to clarify or modify some provisions. You might not succeed with your request, but there's no harm in asking as long as you remain cool and businesslike. Contracts are made to be negotiated, and the boiler-plate contract is merely a starting point for discussion.

"Why bother?" you might ask. Well, consider that a contract may very well bind you for the rest of your life--and even beyond the grave. It wasn't always that way, because most contracts terminated when the book went "out of print." Not anymore. Let's look at a typical "out of print" definition from a recent contract.

Out of Print

"The book is defined to be 'in print' as long as it is regularly offered for sale, under our own imprint or someone else's, in any format or media, in any edition, or if there is an option (or contract) providing for publication in another edition or in other media."

This is followed the a paragraph specifying how the author may terminate the contract if the book goes out of print. But, this contract's definition of "out of print" ensures you will never be able to get the book back, making the following paragraph meaningless. For example, the publisher can put an electronic version up on the web and keep it there forever. And now, with print-on-demand, they don't even need to do that. They merely need to keep a master copy and offer to POD a copy to anyone who pays for one. That makes the book "offered for sale."

Before the web and POD, that wasn't possible, and contracts did expire. I recovered several of my books and moved them to another publisher, where they thrive to this day. That will no longer be possible.

Copyright and Rights

The contract goes on to say, under this heading:

"You will grant and hereby grant [publisher], an exclusive license to print, publish, distribute and sell copies of the book in whole or in part, including revisions, in any medium now known or hereafter devised."

This provision is ridiculously broad, and makes your copyright meaningless to you. You should limit, for example, their rights to print editions only. You can accept wording that says you are willing to negotiate other media rights with them if and when the time comes (but you have the right to say no, of course). Translations are okay, for print only, if the royalty rate for those is acceptable.

You should also reserve the right to use the material in the book in your own classes and consulting, without paying any fees to them. I once published an article with a professional society press, an article they requested and for which I was not paid a cent. The contract had a similar provision, but I struck it and sent it back. They said they wouldn't accept my change, so I told them they couldn't have the article. Eventually, they relented.

Some years later, I wanted to use an illustration from the article in a book of mine. I assured my publisher that I controlled the rights, but they were cautious and checked with the professional society. The society said my publisher could use the illustration if they paid an $800 royalty to the society.

At that point, I located my copy of the contract, which convinced my publisher they (really I, for I would have been the one who had to pay for the permission to use my own work) didn't have to pay a cent.

Arrogance

I particular despise the attitude that can say, "in any medium now known or hereafter devised." It's typical of the arrogance of publishers--or, rather, publishers' lawyers. I'm not giving you legal advice, except to advise you not to be intimidated by lawyers. You can usually find a friendly lawyer among your acquaintances (or perhaps in a local writers' association) who would be glad to review your contract for a modest fee and suggest what you can strike or change when you send back your first counter-proposal to open negotiations.

Just remember, it is a negotiation. (I'll look at some other provision in future columns.)