Do Authors Actually Read Publishing Contracts?

by | Dec 14, 2009

This Sunday’s New York Times carried a story on the front page citing a letter sent on Friday by Random House to literary agents. The letter asserted that they (Random) hold any and all e-book rights to books they have under contract, regardless of the date of the original contract (many of which were signed before ebooks existed).

Markus Dohle, chief executive of the publishing arm of Bertelsmann AG, wrote in a letter dated December 11th that

the vast majority of our backlist contracts grant us the exclusive right to publish books in electronic formats. He also said that Random House’s older agreements granted it the exclusive right to publish a work “in book form” or “in any and all editions.”

This is likely a preemptive “shot across the bow” intended to warn authors away from negotiating separate publication for their works in ebooks or other digital formats. If electronic editions are not mentioned in a contract, it does seem that the author might reasonably think they had not granted these rights along with the rights to printed editions.

Simply the threat of litigation implied by the letter might be enough to bring the vast majority of their authors into line. This seems to fly in the face of the idea that rights are separable, and that only those rights specifically licensed by a contract ought to be governed by that contract.

A Little Personal History

At one time Jill and I owned our own publishing company, Globe Press Books. (For more on my life in books, check out the Publishing Timeline.) One of my responsibilities was writing contracts and signing authors.

Our publishing company was about as small as you can imagine. I sat in a converted bedroom upstairs in our house in Yorktown Heights, New York, with a part-time assistant in the converted bedroom next door, and ran the business through my PC, a fax machine and a Fedex account.

No matter how small we were, potential authors seemed to treat us with the same reverence and fear that they would treat Random House or Knopf, or any other real publisher.

After negotiations, I would present our contract (known as a Publishing Agreement) and they would sign. Fast. I never once, even for a moment, had an author hesitate to sign. Some wanted a few days to study the contract, but I thought this was a ruse. They weren’t studying the contract, because no one ever objected to anything in it.

After a while, I started throwing all sorts of things into these contracts, including all electronic rights in all known or unknown formats, in perpetuity (well, until the contact lapsed or was terminated). It astonished me that no author ever objected.

The Thing that is Longed-For

I deduced after a while that the longing to be a published author was so strong, the wait for a contract from a legitimate publisher so long, that no matter what was in the contract, they would likely have signed. If, indeed, anyone ever read the damn thing.

And I have to say we were extremely ethical publishers, anxious to do well by our authors, creating what we thought were beautiful books that really added value to people’s lives. What must have been in the contracts from the conglomerate publishers with fully-staffed legal departments?

The power imbalance between the publisher and the author is usually so extreme, and the object of the author’s obsession—the contract—so feverishly desired, that all sorts of unequal arrangements would easily pass without a murmur from the victim.

In our case, when we closed Globe Press Books, we canceled all contracts and explicitly returned all rights to the authors.

Self-Publishers Sign Contracts Too

My point here is a word of caution. Several self-published authors have spoken up recently on Book Marketing Network about being tied into a contract for 7 years with subsidy (vanity) publishers. Their frustration and anger at having got themselves into this fix is palpable in their comments.

No matter how desperately you want to get your book into print, no matter how much you long for that publisher contract, no matter how good the deal from the subsidy publisher sounds, STOP when you see the contract. Here’s what you need to do:

  1. Take a deep breath.
  2. Read it carefully.
  3. Get somebody else who knows about contracts to read it.

Do not skip #3. Like a marriage, a contract can affect you for a long time. And paraphrasing the old saw about marriage, with contracts you may “sign in haste, and repent at your leisure.”

Arguments have already started between Random House and the family of William Styron over the electronic rights to works published in the 1950s, 1960s and 1970s. Take your time and know exactly what you are signing. After all the hard work you’ve done, this is not the time to rush into an agreement.

If you have specific advice about signing Publishing Agreements, I’d love to hear it.

tbd advanced publishing starter kit

14 Comments

  1. Gary Heilbronn

    Interesting article and comments. Though a lawyer and ex-law professor I have had contract disputes with some of my major academic publishers over the years usually based on their (often uninformed) hardnosed view that they own everything about what you have written. Even as an academic one has very little leverage including when it comes to do new editions (unless you are the only expert in a field). The most success I have had with such publishers is when actually sitting down with editorial and legal people in the publishing company and sorting out a compromise. Bringing in a an attorney and dealing through letters and emails can be not only costly and counterproductive but he/she will rarely have the expertise needed. Fiction publishing is of course even tougher. The best advice I can give is get a copy of the contract the publisher proposes, take several days to understand and inform yourself on it, then have a non-adversarial meeting with the publishers. Lots of points may be negotiable eg royalty rights, time limits, marketing and even e_book rights which may be limited to one country etc and for specific periods of time different to paper version rights. Focus on the fact that both the publisher and the author want to make money. (If you don’t, just self-publish)

    Reply
  2. Jan Moran

    Good article, Joel. Authors, be smart: check in with the Author’s Guild, they’ll review the publisher’s agreement for free if you’re a member. The annual dues fee equates to about 10 minutes of my attorney’s time, so it’s an incredible deal. This will give your agent more leverage. I just signed a deal, and went this route–very successful.

    Reply
  3. JLOakley

    Yes, good advice. I think the next time I’m faced with a contract (went indie first time) I’ll check into a group in Seattle that offers legal advice for artists and writers for a small fee (very reasonable).

    Reply
  4. Fran Sorin

    Joel,
    Great article with which I identify.

    I wrote a book ‘Digging Deep: Unearthing Your Creative Roots Through Gardening’ in 2004. Several publishers bidded on it. I chose Warner Books (now Hachette) for several reasons. A major one was their promise to market it in a certain way…with an emphasis on spiritual/self help…as much as the gardening market. It didn’t happen…and the sales of the book were disappointing to say the least.

    Why am I telling you this? For 2 reasons. I got a 6 figure advance, they gave me a generous royalty (which I obviously never earned back) and wrote into the contract that they had the electronic rights to the book.

    I noticed that …and let it go. I thought to myself…’ehhh…electronic books…no biggie’. I had not yet entered the blogosphere.

    I had no lawyer representing me. Although my agent was excellent, it was not his job or necessarily in his best interest to pick up on my negotiating of electronic rights.

    Also, I queried my agent about having their ‘marketing strategy’ written into the contract. He said that it was never done. They had no accountability to me….and the result was their failure to reach the right market. Is marketing and p.r. ever written into the negotiations?

    I am now paying a hefty price for not having electronic rights. My life would be a lot easier if it were.

    Your advice is spot on….I appreciate the article and think it can be very useful for authors who want to get their book published. Fran

    Reply
  5. David G. Mitchell

    Thanks!

    In response to your query, I have experience in publishing. I worked for many years for Harcourt and then for Thomson.

    Reply
  6. admin

    David, thanks for a very useful comment. I was trying to imply that people should get professional assistance, so your input is right on target and I’m sure many people will be interested in what you have to say. Particularly when it comes to publishing agreements, authors need to be very wary about exactly what they are signing away, since potentially the rights involved can be tied up for decades. David, do you specialize in media law or publishing?

    Reply
  7. David G. Mitchell

    You make some interesting points but the most important is that before signing away rights, it is generally advisable to get an experienced attorney to review the agreement. That is true not only for publishing agreements but all agreements that we sign. If you look closely at the agreements that you sign when you purchase products in the store or via a website, you will likely find that you are agreeing to things to which you might not have expected to agree. It is not always practical or cost-effective to hire an attorney, but it is the best way to understand what is presented.

    Also, keep in mind that sometimes a party will not have any leverage to negotiate many changes to an agreement. That is often the case with a first time author, or one who is self-publishing. Even then, it is a good idea to seek legal review, just to ensure that the agreement is understood before it is signed.

    If an author has any leverage in the negotiation, or if the editor or publisher representing the publishing house is amenable to negotiating terms, authors might consider seeking a reversion of any rights that the publisher fails to exploit. For example, rather than try to limit the publisher’s rights to publish in certain media, an author might seek a reversion of those rights if the publisher fails to exploit them (measured in the royalties to the author) within two years or for any twelve month period thereafter.

    Discussion with an experienced attorney can usually result in negotiation points that the author will appreciate, but that has to be recognized as a double-edged sword since (i) legal fees will add up, and (ii) the publisher may still not want to take the time to negotiate. For that matter, if an author is receiving a small advance or no advance, legal fees can easily exceed the amount of the advance or even the full amount of royalties. Fees should be discussed and established with legal counsel before the lawyer is engaged.

    I need to add (since I am a lawyer), that no one should consider this post legal advice. I am merely making a general commentary that does not necessarily apply to any specific situations that any of your readers may face. Also, this post does not create an attorney-client relationship with anyone.

    Reply
  8. admin

    @Owen, absolutely. I used to follow the food blogs, but it just got overwhelming. Not that that’s a bad thing, there are a lot of good cooks who are good writers AND they take good photos! It’s an amazing era for food writing generally. Thanks for your kind words.

    @Chrisy, it’s amazing what people think they can get away with when they have those huge legal departments. I keep trying to make sense of their logic, and I keep failing. Thanks for stopping by!

    Reply
  9. christy Pinheiro

    This announcement is a shame. It’s a land-grab and everyone knows it. All the publishers are hurting and they just hope that no one calls “bullshit!” on this blasphemy.

    Reply
  10. Owen

    I can’t keep up anymore on the food blogs. When I did the book there were only a few hundred decent ones. Now there are so many that I have retreated into only reading my friends’ ones – which is a shame.

    I have thought about doing a follow up – it would be so much easier now…

    Love your site by the way – consistently worth reading…

    Reply
  11. admin

    @Owen, excellent idea, thanks for that. I have a copy of Kirsch somewhere from my publishing days, a really good reference that should be better known. And yes, any contract (with enough motivation) can be changed but you have to be knowledgeable.

    Owen, also love your idea for Digital Dish. Amazing the number of food blogs there are now, yes?

    Reply
  12. Owen

    Just get this book – ‘Kirsch’s Handbook of Publishing Law: For Authors, Publishers, Editors and Agents ‘

    Then read the contract with the book in hand – you’ll learn a LOT – and hopefully will be able to reserve what you want.

    FWIW – I know authors who in conjunction with their agent got the contract changed

    Reply

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