And I have been practicing law long enough to know that if one side is unhappy, it usually ends up that the other side at some point becomes equally unhappy. A deal has to work from both parties' standpoint.
Often times as well the parties seem to focus on 1 or 2 points such as the royalty rate and the advance, if any. While those points are important, they can be far less important than some other provisions in the agreement in a given set of circumstances.
Additionally, what often seems to occur is that neither side actually knows what is fully negotiable, what is less negotiable and what is negotiable only with the strongest bargaining position. A deal, after all, is made upon the basis of who wants who more and the best deals are made by those who have an independence. Keep in mind that what each side will be able to achieve within such negotiation is of course up to the relative skills of the negotiators, their vision or lack thereof, and the ability of each side to say "No."
Let me then offer a general overview of these key negotiating points. Many of the issues I have already dealt with in more depth in other articles and you can read these off of the link below. I am assuming throughout this article that this is a book written by an independent contractor author and not as a work made for hire.
1. Who Owns The Rights to What?
The publisher's contract will almost always seek to obtain all rights to the book. This is not necessarily unfair since it may be better to have all the rights exploited by one source. However, this provision should be fully negotiable since it is not necessarily self-evident that the author should give up all rights. If the author is in a stronger bargaining position, the author may be able to withhold electronic rights, foreign rights or any other of the rights that are involved in the creation. But assuming that the author gives up all rights, it is very important that the author make certain that the author is going to get paid for the exploitation of all rights and this type provision is frequently overlooked by the author who seems focused only on "sales by the publisher." See the discussion under point 6 below.
2. Who Owns The Copyright?
Often negotiations bog down over in whose name the copyright is to be taken out. This is mostly a ghost issue since even if the copyright is taken out in the name of the author, the author's agreement with the publisher will control the exploitation rights that are the subject of that copyright. If the copyright is in the author's name, the agreement should not only reflect that the author's copyright is subject to the contract but that the publisher retains the exclusive right to administer the rights so granted to the publisher. The author, under United States copyright law, retains the right, under certain circumstances, to terminate the grant of the copyright to the publisher and this right cannot be waived by contract in advance.
3. What Happens To The Rights To What If The Author Or Publisher Fail to Comply?
There should be express provisions dealing with what happens to the rights in the book should the author or the publisher fail to live up to the provisions of the agreement on their parts. It is not enough to merely say that the contract terminates. There should be language dealing directly with what happens to the rights in the book in those events. Do the rights revert to the author? Do they remain with the publisher? Unfortunately, I have seen many instances in which the project never gets off the ground despite the best intentions of both parties and without appropriate contract provisions, the book may end up in legal limbo.
4. Who Makes the Final Decisions About the Author's Work and the Publisher's Book?
This is the so-called "final cut" issue that comes up in other creative situations. Which party makes the final decision? In terms of the author's work, the manuscript itself, the publisher will want the right to edit and revise the work and the author will want to keep that right to itself.
Related to this right is the right to control the actual book in terms of look, style, marketing, promotion and the like. In this area, the publisher will want to have the final say so although the author may be consulted in these areas. The author should seek to have the publisher establish some sort of marketing plan in advance and that plan should be part of the contract so that the author has some recourse should the publisher not promote the book as originally discussed.
5. Who Has the Responsibility to Obtain Clearances?
Most books involve not only original writing but quotes from other sources, photographs taken by third parties, and the like. Under all circumstances, such materials should be licensed by an agreement in writing from the owner of the rights to such materials. There is a potential conflict here since the author will want the publisher to seek out that license and pay any license fee that is required and the publisher will want the author to do so, delivering a "turn key" manuscript at the author's expense.
But even if the contract provides that the author should have that responsibility, it is in the publisher's best interest to provide a form for the author's use in obtaining such licenses since the publisher will likely be joined in any litigation that may result from the failure to obtain such a license. The form that the publisher uses should protect both the author and publisher and should be broad enough to cover the entire scope of rights granted the publisher in the agreement.
6. What Will The Author's Share of the Income Be?
Related to the discussion about who owns the rights is the issue about the author's and publisher's share of income from the rights that are transferred to the publisher or reserved to the author. Merely giving up the rights on the part of the author does not automatically provide in the agreement that the author is going to participate in the exploitation of those rights. As I mentioned above, the author, who may be unfamiliar with the book and related industries, may be focused only on "sales of the book by the publisher" and may not negotiate for a percentage of other income that may be derived from the exploitation of the publisher's rights. In addition to sales by the publisher, there may be licenses issued by the publisher in which third parties pay the publisher for certain rights to the book and the author should be careful to make certain to participate in such income. Should the parties agree that the author will retain certain rights, the negotiations may proceed upon whether or not there shall be some sort of "hold back" period during which the author may not exploit those reserved rights and what percentage, if any, the publisher may get from the author's exploitation of those rights.
And of course within this negotiation are the issues about advances, that are or should be fully negotiable, as well as the royalty rate and basis for royalty calculation. Will the royalties be paid on the retail/cover price of the book or the net income received by the publisher for sales by the publisher? If on "net income" how will that be defined? What are the reserves to be and when will they be liquidated? How frequently will accountings be rendered?
7. What About Competing Books?
The publisher will want to protect its franchise in this book in the event that the author decides to exploit the success of the book by writing books or other materials that compete with the publisher's book. The parties should pay careful attention to this type provision since it can have a significant impact upon both parties' rights.
8. What About Revisions and Revised Editions?
This is related to the "competing books" provision and is intended to cover subsequent publications that are revisions and revised editions to the original book. The author will want the right to do such revisions and revised editions and prevent the publisher from doing so and bringing in another author to replace the original author. The author will want the right to negotiate better terms on such revisions and revised editions on the theory that it was the success of the original book that created the market for the newer version. How will royalties be calculated on these newer versions?--will they be considered a new book and therefore any escalating royalties will not be applicable or as sales of the first book and therefore the sales thresholds included? The publisher will want just the opposite protection, seeking to be free to put out such revisions and revised editions free of the claims of this particular author in order to make more money on the newer editions.
9. What Are The Author's Warranties and Indemnities?
This provision, most often overlooked by both parties, can render the rest of the agreement meaningless should there ever be any claims made by third parties against the book, such as for copyright infringement, defamation, invasion of privacy or other such claims. How broad will the author's warranties and indemnities be? Who is covered by such warranties and indemnities? How much protection is afforded the publisher in the event of such claims? Do the indemnities become applicable upon a claims made basis or must there be a final adjudication made?
10. What Happens Upon Termination?
When the parties enter into a new relationship, the last thing they seem to consider is what is going to be the exit plan. Unfortunately, most relationships end at some point and in the publishing business, rights may be left unclear unless the parties consider these consequences when the make the deal in the first place. What events kick off the termination other than merely the book being declared "out of print" by the publisher? What are the author's and publisher's rights in the event of termination? Can the author get a complete list of outstanding licenses and deals made by the publisher? What are the author's rights to buy inventory? Who owns the rights to the work in the event of termination?
What is important here is that both parties should approach the negotiating process with both knowledge of their rights as well as a broad vision about what may happen to the book over the course of its publishing lifetime and deal with those potentialities within the agreement.
© 1998 Ivan Hoffman
This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.
No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.