Many authors understand that publishing contracts are “negotiable,” but find the negotiating process confusing. In many cases, this stems from a lack of understanding about what “negotiability” really means in the publishing contract process.
The fact that a contract is “negotiable” doesn’t mean every term and every provision is up for discussion or revision. In one sense, of course, every term of a contract is “negotiable” – because an author (or publisher) can always walk away instead of signing. In another sense, however, certain provisions are “deal breakers” – meaning one or both parties would rather walk away from the deal than change them. These “deal breaker” provisions are not, strictly speaking, “negotiable” because there’s no way to reach a deal unless they’re included.
Remember, however: publishers and authors always have the right to walk away from an unacceptable contract – and the right to decide what unacceptable means.
An important key to contract negotiations is understanding which provisions are negotiable and which are not, and the reasons why that’s so. Today’s post examines the reasons a contract provision might (or might not) be negotiable from a publisher’s point of view, and why.
WHAT PROVISIONS ARE NEGOTIABLE?
We’ll start with the good news: everything that isn’t a “deal breaker” is negotiable from the publisher’s point of view.
The bad news: since everything that isn’t non-negotiable is negotiable, it’s important to know where those non-negotiable clauses lurk, and why the publisher has them.
WHY ARE SOME PROVISIONS NON-NEGOTIABLE?
The biggest reason for a contract provisions becoming “non-negotiable” from the publisher’s point of view has to do with the reality of running a business.
1. Publishers don’t/can’t/won’t negotiate contract provisions which relate to the publisher’s basic corporate setup and operations. A publishing house is a business (often a corporation or LLC) and it has to operate under certain rules (many enforced by law). For example, publishers need to file taxes on an annual basis, and have an overarching accounting system (often, with in-house accountants) who handle the company books and records. Not only is it unreasonable to expect a publisher to “make an exception” to standard business practices for one person, it’s often impossible to do so. Contract provisions relating to or influenced by the publisher’s standard business practices (e.g., statement frequency) are generally not negotiable.
2. Publishers generally don’t/won’t negotiate contract provisions that would prevent the publisher from making a profit. Publishers’ “appropriate profit margin” is a can of worms we won’t open today, but the label on that can says “most publishers are for-profit entities.” Publishing is a business, and both publishers and authors have a right to earn a legitimate profit on business endeavors. For that reason, you won’t be able to negotiate a contract which eliminates the publisher’s ability to earn a profit.
3. Publishers generally won’t negotiate contract provisions which would open the publisher to third-party legal liability for the author’s acts. This makes sense: the author should bear legal responsibility for his or her own acts and words.
Author, Take Note: You can often tell a legitimate publisher from a dangerous one by which clauses the publisher considers “deal-breakers.” It’s important for authors to understand the “industry standard” publishing terms so you know when the deal you’re offered does not comply. Conversely, it’s important to understand “industry standard” contract terms so you know when you’re the one being unreasonable.
In the weeks to come, we’ll break down the publishing contract terms, clause by clause, and talk about what they mean – to the author and to the publisher – and why they are (or are not) generally negotiable.
Some publishers may try to use the contract to take advantage, but far more often publishers use the contract to forge a business partnership with an author. Ultimately, each author is responsible for his or her publishing career (as well as writing books!). One way to protect yourself, and to obtain the best possible contract, is to learn about the industry and standard contract terms.
I hope you’ll join me next week, when we continue this autumn series on publishing contracts with the first of our “clause-specific” looks at negotiation.