Negotiating Your Book Contract – 20 “Must” Topics to Talk About – Part I

You have found a traditional publisher for your book, and it’s time to negotiate the contract! Don’t let the excitement cause you to ignore the details involved in what is undoubtedly the single most important transaction that will take place in the life of your book.

Even if you have an agent, you need to understand the issues, so that you know what you are agreeing to when you sign on the dotted line. Otherwise, you may find out too late that there are unexpected or unfair consequences which you did not foresee.

Each book publisher has a standard publishing contract. The extent of the modifications you can negotiate will depend upon how eager the publisher is to sign you up. Unless you are a big-name author, larger publishers may allow you only limited changes. Smaller publishers may be more willing to work with you. If the publisher will not make a change you request in the contract, you must decide if you can live with it as it is, or whether the refusal to make the change is a “deal breaker” that will cause you to walk away from the agreement.

1. GRANT OF RIGHTS

The Grant of Rights provision of the contract addresses the specific rights you are granting the publisher. Be leery of transferring “all rights” for the term of the copyright. The term of the copyright, for works created after 1977, is the author’s lifetime, plus 70 years, after which the work goes into the public domain, meaning it no longer has copyright protection. Instead, think about restricting the rights, primary and secondary, that you are transferring to the original publisher, and also to limiting the geographical scope, and language markets covered by the contract.

Primary book publishing rights are hardcover, trade paperback, mass marketing, and direct mail. The contract should specify exactly which of these rights you are transferring. In Dolch v. Garrard Publishing Company, a court case decided in 1968, Marguerite and Edward Dolch, authors of children’s books marketed in hardcover bindings to schools and libraries beginning in about 1950, had transferred “the exclusive right of publication of the books” to the publisher. In 1963, with the new popularity of paperbacks, Mrs. Dolch, her husband by then deceased, wished to sign a contract with Dell Publishing Company to reprint some of the books in paperback. Although Mr. and Mrs. Dolch had apparently never thought about paperback publication when they entered into the contracts at issue, the court found that Garrard Publishing Company held the rights to paperback publication because the term “the books” meant both hardcover and paperback The lesson from Dolch is to beware of vague language in contracts.

Secondary rights include periodical rights, first serial rights, book club rights, dramatic rights, motion picture rights, television rights, radio rights, animation, merchandising or commercial tie in rights, electronic rights, and video- and audiocassette rights. You should limit the secondary rights you grant to those the publisher can adequately exploit. Book club rights usually go to the hardcover book publisher, but an author normally does not grant secondary rights such as dramatic rights, motion picture, and television rights to a book publisher. Authors should retain these rights in order to contract for them independently. Secondary licensing and sub-licensing issues are beyond the scope of this article.
Other limitations may specify a geographical and language area. It is not uncommon for a publisher to ask for “first exclusive North American book rights.” The British Commonwealth is the next most valuable English language market. Western Europe and Japan are major foreign markets. Publishers for these other markets will come calling if your book is a success in North America.

What about new technology? Terms such as “book form” and “electronic rights” should be carefully defined in the contract. Just a few years ago, everyone supposedly understood terms like “publish” and “all rights,” but that is no longer true. The failure of older publishing agreements to contemplate electronic rights has resulted in a substantial amount of litigation. As recently as 2002, Random House and electronic-book publisher Rosetta Books were litigating the issue of whether Random House’s contracts with its authors to exclusively “print, publish and sell the work in book form” included an implied right to publish and sell the eBook version. Random House sued for copyright infringement and interference with contracts after Rosetta contracted directly with certain Random House authors to publish the electronic version of their books. After the federal appellate court upheld the district court’s denial of Random House’s motion for a preliminary injunction to stop Rosetta from publishing and selling the eBook versions while the litigation continued, Random House apparently saw the handwriting on the wall, and the two publihing houses reached a settlement that allowed Rosetta to license and publish 51 titles held by Random House. Today, publishers are aware of the need to include rights to new technology in their publishing agreements, and you can expect their standard contracts to be as broad and far reaching as possible.

The bundle of rights that come into being when a manuscript is created are valuable assets if you become a best-selling author. You should be concerned about who has the right to capitalize on them, and for how long. Under present copyright law, rights you do not expressly grant to the publisher will be retained by you. However, if the language in the contract is vague, you could end up arguing about its meaning in a court of law, and you may not have the bank account, or the stomach, to litigate. If your book acquires significant commercial success, the copyright law could mean you (and your heirs) and your publisher will be bound together for a long time–your life, plus 70 years. It is up to you to limit what you are selling or licensing to the fair value of the payment you are receiving.

2. DELIVERY OF MANUSCRIPT

The contract should specify when you must deliver the manuscript, and supporting materials, to the publisher and in what format. The work should be identified by a working title or, if the title is not yet decided upon, adequately described, along with its agreed-upon length and scope. If the book will have supporting materials in which you will hold the copyright, such as indexes, drawings, charts, maps, graphs, tables, and photographs, the contract should specify whether you or the publisher are responsible for preparing these. If you will be using supporting materials or long quotes or reprinted materials in which third parties hold the copyright, the contract should say who is responsible for obtaining these rights, what rights are required, and who pays for them.

If you are writing on a particularly “hot” topic, the contract may state, “Time is of the essence.” Do you know what this means? Be sure you understand the legal definition of all terms used in the contract. “Time is of the essence” means you are held strictly to the deadlines stated in the contract, and you are in breach of the contract if you are late by even one day.

Contracts with a specific deadline should always include a force majeure clause that excuses failure to perform caused by unusual or unforeseeable circumstances beyond a party’s control. Examples of the type of events the parties intend to be covered should be specifically listed, and typically include such things as riots, wars, fire, floods, and Acts of God. Acts of God are natural disasters, such as lightening strikes, tidal waves and earthquakes that are beyond the control of human beings, and make it impossible to perform the contract. A force majeure clause will not cover sickness or accidents that prevent you from completing the manuscript unless they are somehow tied in with the type of disaster listed, so you will need to specifically add these as acceptable excuses for failure to perform if you wish to be protected from possibly being held in breach of contract in such an event.

3. ACCEPTANCE OF MANUSCRIPT

When you deliver the manuscript to the publisher, the publisher decides whether to accept or reject it. The rejection of a manuscript as unsatisfactory has resulted in major litigation. Pay attention to whether the contract provides that the manuscript must be satisfactory in form and content, or whether the publisher can reject the work based on its sole discretion or judgment. “Form” refers to how the various elements of a piece of writing are composed or put together, and “content” is, of course, the substantive or meaningful part of the work. A deficiency in form and content is one that the author may have some power to remedy.

A number of well-known legal cases, including one in 1982, arising out of Harcourt Brace Jovanovich’s rejection of a manuscript by the late Senator Barry Goldwater, indicate that there is an implied obligation for the publisher to provide editing assistance, if necessary for the author to perform the contract satisfactorily. Harcourt failed to provide editorial assistance to Goldwater and his ghostwriter even though they requested it. Goldwater’s book, With No Apologies, became a best seller when subsequently published by William Morrow & Company, and Harcourt sued to get its $65,000 advance back. The court allowed Goldwater to keep the advance because it found that Harcourt did not act in good faith in rejecting the manuscript.

The court concluded just the opposite in a 1985 case involving Doubleday & Company’s contract with actor Tony Curtis to write a novel, entitled Starstruck. Here, the court said the publisher had acted in good faith because the actor had refused “renderings of assistance” for a manuscript which one editor at Doubleday called “junk, pure and simple.” Doubleday won a judgment against Curtis for the $50,000 advance it had paid. The novel was never published.

To be safe, ask the publisher to agree (1) not to cancel the contract except for good cause, and (2) to provide you with editorial assistance and an opportunity to remedy any deficient performance before a determination of dissatisfaction is made. What constitutes “good cause” varies from case to case, depending upon the facts. In 2002, West Publishing Company rejected California attorney Rafael Chodos’s manuscript on a highly-specialized legal topic because West had decided the book would not be profitable. The court held this was not “good cause” for the rejection. If you are an established writer, you may be able to add a standard for acceptability, such as that the book is of at least equal quality to your last book, and even specify the editor who will be assigned to work on the book with you.

Be sure there is a realistic deadline by which time the publisher must give you notice that your manuscript has been either accepted or rejected. If it is rejected, try to get the publisher to agree that advances already paid to you will be repayable only from the proceeds you receive when, and if, the book is sold to another publisher.

4. BOOK TITLE AND JACKET

Normally, the publisher will have the right to name your book and to determine the design of the book jacket, but you can bargain for the right to be consulted or to have the right of approval. Approval and ownership of the title may be a critical issue if the book arises out of, or is based on, your existing brand or buiness. An example of a book based on an existing brand or business is Weight Watchers (TM) New Complete Cookbook.

5. AUTHOR’S REPRESENTATIONS AND WARRANTIES

You will be required to make certain representations and warranties with regard to your book, such as:

*You are the sole creator and owner of the material you deliver to the publisher;

*The work has not been previously published (unless it has been, and legal issues related thereto are resolved);

*The work is not in the public domain (meaning it has copyright protection);

*The work does not infringe any statutory or common law copyright;

*The work does not violate any right of privacy, and

*The work is not libelous or obscene.

If your book includes recipes, or formulas, you may also expect to be required to represent and warrant that they are correct, and not injurious to the user. The warranties you give the publisher should not extend to materials included in the book that you did not provide.

6. INDEMNIFICATION OF THE PUBLISHER

Expect that you will be required to indemnify, and hold the publisher harmless, against claims or breaches of contract related to the representations and warranties you give. These may extend even beyond the termination of the contract. You should pay attention to what happens if you are accused of infringing someone else’s copyright. Does your publisher have the right to withhold your royalties until things are sorted out? If so, should the royalties be held in an interest-bearing account? If charges of infringement or libel are a serious possibility, perhaps you should ask to be added as an insured party to your publisher’s “media perils” insurance, or think about purchasing your own. Media perils insurance protects publishers and writers against such claims as copyright and trademark infringement, invasion of privacy, and defamation, and may also provide assistance with paying the attorney’s fees involved. If you are sued, do you have the right to approve any settlement by the publisher? Is there a dollar amount limitation? Many such claims are frivolous, and will be thrown out at the trial court level. Be sure the full indemnity does not apply unless the judgment is finally sustained against you. A “judgment finally sustained” is one decided after all appeals. This is scary stuff. If you have an agent or attorney, discuss with them how best to protect yourself.

7. EDITING THE MANUSCRIPT

Some writers guard every word in their manuscript as if the manuscript were a newborn child. Others are less concerned. The right of the publisher to edit your manuscript should be spelled out, so there are no surprises later on when you do not recognize your own writing in your own book. It may, however, be a choice of allowing the editing as determined by the publisher, or not being published.

8. PUBLICATION OF THE BOOK

Be sure the contract specifies a deadline for publication of the book after acceptance of the manuscript by the publisher. If publication will take longer than a year, ask why. You should be entitled to terminate the contract if the book is not published on a timely basis, and the exact steps to do this should be specified. The contract may allow the publisher to terminate the contract any time prior to, or even after, publication for legal reasons, e.g., a threat of a copyright infringement suit, or a complaint of defamation or invasion of privacy.

In May, 2005, San Francisco socialite Dede Wilsey reportedly threatened Penguin Press with legal action for comments made about her in an about-to-be published memoir by her stepson, Sean Wilsey, entitled Oh the Glory of It All. Sean Wilsey stood by his work, and Penguin published the book shortly thereafter. As far as is known at the time of this writing, Mrs. Wilsey has not sued.

About this same time, wealthy benefactoress Lily Safra and her lawyers alleged that the recently published Empress Bianca by Lady Colin Campbell was a thinly disguised version of Lily Safra’s life. The British publisher, Arcadia, withdrew the book from the market, and “pulped” its stock of inventory, much to the author’s dismay.

If your publisher fails to publish your book pursuant to your contract, you should be allowed to keep your advance, unless this occurs under circumstances in which you are legally culpable. You may have a legal cause of action against the publisher for wrongful failure to publish, but it may also be fruitless for you to pursue because it is difficult, perhaps impossible, for a judge or jury to determine legal damages. In such a case, consult with an attorney to determine what to do.

9. PROMOTING AND MARKETING THE BOOK

The publisher has an implied duty to use reasonable efforts to promote your book, but you should try to get as many specifics as possible about what the publisher is willing to do included in the contract. You will want to know if there is a limit on how many review copies the publisher will send out at no cost to you, and whether copyright permission fees and travel costs must come out of your advance. Well-known authors may be able to get the publisher to commit to the size of the first print run, and the amount of the budget for the initial promotion of the book. Ask what the publisher has done for its other authors. Remember that prior oral promises or representations are superseded by the written contract, and are not enforceable.

If you are not already familiar with the publisher’s market, you should ask for details. One author I know was thrilled when she sold her children’s book to a publishing house that specialized in marketing to schools and libraries. However, the market turned out not to be as large as she had anticipated, and she later found out the publisher did not have sales people working retail stores, both of which she believes greatly impacted her sales.

10. COPYRIGHT

The contract should provide that the publisher will register a copyright of the book in the name of the author in the United States, and in such foreign countries as the publisher deems advisable, within the statutory period. Your ownership of the copyright is, of course, subject to the Grant of Rights in the beginning of the contract. If the copyright is to be in the publisher’s name, you should ask why. A copyright originally registered in the publisher’s name will require a transfer of ownership at the U.S. Copyright Office to get it registered in your name, which can be problematical if the publisher goes out of business.

In Part II of this article, Brenda Warneka discusses ten more “must” issues for writers when negotiating book contracts.

Sin and Legalism

First of all, I am a Gentile, not a Hebrew! Although I am “grafted” in, by the grace of God and His Christ, I am not a grafted-in “new Hebrew,” as much of organized Christianity claims, nor do I belong to any of the twelve tribes of Israel. I was not given the law at the mount, nor am I a partaker of the covenant that God made with Moses and Israel. I am, as Paul said, a “revealed son of God” in the dispensation, or “mystery,” that God has revealed to the powers in this age. I am a “new creation” in Christ, as Paul said! Why then would I want to place myself under the law that God gave to Moses and the Hebrews? God gave Moses the law to show His people how far they had fallen short of His glory. Read Leviticus and see how impossible it is for a mere human being to meet the righteous requirements of God by his or her own effort. Two thousand years later, when Christ gave the sermon on the mount, people were overwhelmed at His teaching. Why? Because, even with Christ’s coming fulfillment of the law, they couldn’t adhere or attain to his teaching: unconditional love (agape), faith in God, service to others, a personal relationship and trust in the Father! “The law came in that grace may abound even more.” This is why the law was given to the Hebrews. God wanted them dependent on Him, so He could be their God and they could be His people. God knew that humanity couldn’t observe the least of His laws without stumbling, as they most certainly did and still do! We should be aware of Leviticus, as well as all other scripture that reveals God’s righteousness and why He sent Jesus to die for us, but we should never allow that knowledge to turn us back to an existence that Christ died to set us free from!

“Therefore the Law has become our tutor to lead us to Christ, so that we may be justified by faith.” Galatians 3: 24

As believers, we are part of the “mystery” of this age, which is revealing the “manifold wisdom of God,” according to Paul. If we have been foreknown, chosen and called by God (Romans 8: 23 on), then we are beyond the drudgery of focusing on sin and the law. This is not to say that we should be cavalier about what God calls sin, as Paul said, “may it never be!” But our power to resist sin, unlike a Hebrew, comes from “Christ in us, the hope of glory.” I need only be diligent to turn (repent) from and confess my sins to God and brothers in Christ, and then fall on His grace, which covers all of my sins-past, present and future. Paul said, “Not looking back, I press on towards the goal and the prize of the upward call of Christ.” Here is our accountability before God: pressing on, trusting and believing, in faith, that “if God is for us, then no one can be against us.” “There is-therefore-now no condemnation for those in Christ Jesus.” Christ died once and for all of us and our sins and unrighteousness! To add any amendment to these scriptures is to deny Christ and his sacrifice.

“I do not nullify the grace of God, for if righteousness comes through the Law, then Christ died needlessly.” Galatians 2:21

I existed, for almost seventeen years, in a life entrapped by man’s religious doctrine. Much of this doctrine (not all), was legalistic, which only caused, in me, guilt, confusion, fear, anxiety, anger and a false sense of separation from God. I was always being confronted with my “sin-life” and made to feel helpless, because the person at the pulpit always seemed to have answers that didn’t respond to my questions about God, myself and salvation. The message, for all intents and purposes, from the pulpit of organized Christianity always contained the emphasis on self help and will, “You must overcome your sins or God will not be able to bless you!” I always thought to myself, “If I have to deliver myself from sin, then why was Jesus crucified and resurrected?” “If I’m responsible for my salvation and blessings from God, then I’m lost and Jesus died needlessly.”

“The powers, the principalities, the spiritual forces of wickedness and the rulers of this dark age, as Paul described the enemy, have done their job for almost seventeen hundred years. These contrary-to-God forces, have clouded the truth of the cross with the desires, fears and religious traditions of man. Most of this disruptive work has been accomplished, unfortunately, from inside the Body of Christ, and has taken the form of what Christ said he had come to fulfill.

“But now that you have come to know God, or rather to be known by God, how is it that you turn back again to the weak and worthless elemental things, to which you desire to be enslaved all over again? You observe days and months and seasons and years…” Galatians 4: 9-10

“It was for freedom that Christ set us free; therefore keep standing firm and do not be subject again to a yoke of slavery.” Galatians 5: 1

“But if you are led by the Spirit, you are not under the Law.” Galatians 5: 18

The bible tells us that we are made in God’s image-not the reverse! It also tells us that we are led by the Spirit (and therefore, not under law) who was sent to “lead us into all truth.” The scripture didn’t say man would lead us into all truth, but that the Spirit of God would! Organized religion, in order to maintain control and exist, must make God, to some degree, in the image that religious man believes he needs and desires. The major way (one of many) organized religion accomplishes this goal is through fear. What better tool to use than the sins (weakness) of the congregation and thus the threat of separation from God for all eternity, which is the complete opposite of the truth?

In God’s reality and truth, we are more than forgiven, we are justified in His eyes and not by our own works, good or bad, but by our faith in His Son, alone! The emphasis on sin (legalism), self holiness and all other religious dogma will only lead to a lack of Knowledge about, as well as a personal relationship with, God! Listen to the Spirit that God sent to each of us to lead us to His truth, and if anyone is teaching contrary to this truth, then depart from their company, as Paul warned the Galatians!

Don’t Look Back With Candour – How Oasis Conquered The World

While the technique of having the opening scene of a film return at the end (with the story told in between) is hardly new, it does work perfectly for the compelling Oasis documentary ‘Supersonic.’

Beginning with the group boarding a helicopter flying them to Knebworth, where they would play to 250,000 people over two August nights in 1996, it ends with them taking the Knebworth stage as the most popular band in the world. The flight may have only been a short hop, but the journey taking key members of the group, brothers Noel and Liam Gallagher to their preeminent position in the rock world had been turbulent, chaotic and in the previous two years bewildering frenetic. By August 1996 Oasis had reached a stratosphere of popularity that very few attain and the fact that they had arrived there at such a very early stage of their career made it even more astonishing.

But if their speed in reaching the top of the mountain had occurred in a blur (if Noel and Liam will forgive the analogy) maintaining such a level of attention from there on in was always going to prove a huge task. They were the most important band of the era and Knebworth was the highest height they had so far reached – but it was to prove their crowning glory, Noel Gallagher admitting as much at the end of the ‘Supersonic’ documentary: “After coming from where we had in the two and half years before I had a feeling at Knebworth that this was the end rather than the beginning. I remember thinking where do we go from here?”

Where they had come from was a tough Manchester neighbourhood and a childhood where their abusive father was regularly violent toward his wife and elder sons Paul and Noel. Youngest of the three Liam also received some rough treatment and although mother Peggy eventually gained legal custody of the children and for the most part raised the family on her own, their troubled early lives did not forge any unifying bonds between Noel and Liam, which the documentary makes quite clear; Noel described as withdrawn and Liam antagonistic. Their fractious, often threatening relationship (and worse) is the hub on which the backstory of Oasis turns -and even in early home movies of the group, long before their mutual animosity became the stuff of tabloid headlines, it often appears the sneering and petulance is only a heartbeat away from fisticuffs.

At this point it is impossible not to start drawing comparisons with Kinks mainstays, Ray and Dave Davies. Not only does Noel take over Liam’s band, as Ray did with the band Dave had formed, an often horrible sibling rivalry drives other members of the group to the exit, with jealousies and provocations a prelude to outbreaks of physical violence. What Noel says about Liam could easily be Ray commenting on Dave: “He was always cooler than me, funnier, had a better haircut and clothes looked better on him. But he was jealous of my song writing talent.”

If Ray and Dave go down as the Brothers Grimm of rock, then Noel and Liam are the Peaky Blinders engaging in a civil war.

After Noel joins the group in 1991 there follows two years when he recalls, “not a single paragraph was written about us.” But his developing talent as a songwriter and their dynamic live shows in which Liam is becoming a front man and rock singer par excellence, bring them to the attention of Alan McGee, head of Creation Records, who signs them to his label in May 1993. But if anything the road then becomes even more rocky (and not purely in the musical sense). They make a series of fine singles – including ‘Supersonic’ – while their debut album, ‘Definitely Maybe’, exceeds all expectations in terms of both sales and critical acclaim. It will go on to become the fastest-selling debut album in UK music history but alongside the music quickly develops a (warranted) reputation for unruly behaviour which brings deportation from Holland and a disastrous appearance at the Whisky-A-Go-Go Club in Los Angeles where drug excess leading up to the show muddles heads to the extent that different songs are played at the same time, culminating in a furious on-stage exchange between Liam and Noel, which results in Noel leaving the tour and for a short time, the band (he is eventually found holed up in San Francisco and persuaded to return – the episode prompting Noel to write the wistful ‘Talk Tonight,’ one of a number of fine lyrical ballads he would write around this time).

What happens next is less follow-up album and more nineties cultural phenomenon – (‘What’s the Story’) ‘Morning Glory’ (1995) is one of those rare records like ‘Tapestry’ or ‘Dark Side of the Moon’ that are an essential embodiment of their time. If much of ‘Morning Glory’ is exceptional, then the statistics are mindboggling – 347,000 sold in its first week of release, 13 times platinum in Britain, 4 times in America and officially the fastest selling album of the decade. Even if you are wary of equating vast sales with musical accomplishment – football teams, sitcom actors and puppets have all had number one singles whereas The Clash and Neil Young have not – there is no doubt Oasis produced a very fine album, with at least three tracks ‘Wonderwall’, ‘Don’t Look in Anger’ and ‘Champagne Supernova’) becoming defining songs of the era.

Lyrically forceful but also melodic, it was a welcome antidote to the prevailing grunge rock trends and stands as the undisputed high point of the Britpop movement whose origins harked back to The Beatles and The Kinks, two bands whose influence loomed large in the structure of Oasis songs. Contemporary reviewers have come to regard ‘Morning Glory’ a little less favourably, calling Beatles-tinged material derivative and they may have a case, but only to a point – let’s face it at times The Beatles themselves were not adverse to borrowing an idea or two, taking inspiration from the likes of The Byrds, Dylan and The Who.

Toward the end of the ‘Supersonic’ documentary Noel Gallagher reflects on the moment when Oasis arrived on the Knebworth stage: “Nothing anybody does in the future will be as big as Oasis – in the times in which we live it is unrepeatable.” Before playing a note he announces to the crowd: “This is history – right here, right now.”

An assessment even more pertinent today than it was then.