Authors have plenty to watch for when evaluating a publishing deal, but one of the most common dangers is one even savvy authors might not recognize: an abbreviated contract that omits important clauses and protections.
Most authors look at standard-length (12-30 page) publishing contracts with a combination of excitement, fear, and confusion. For those not versed in legalese (or, more precisely, Publishing-ese) these contracts can range from “hard to read” to “penned in Greek or Sanskrit.”
Authors often see a three-page form and think “finally, a contract that makes sense!”
Beware…that way be dragons.
Publishing contracts are long because they have to deal with many legal issues.
“Copyright” actually includes a bundle of different rights, each of which should be addressed the publishing contract (to state which ones the author keeps and which are being licensed to the publisher). Failure to deal with all the relevant issues creates ambiguities, many of which will cut in the publisher’s favor (or, at a minimum, need a court to resolve—usually at a prohibitive cost to the author).
Recently, I’ve seen a number of “short-form contracts” which claim to offer authors a “better deal” than those being offered by “traditional, complex forms.”
These shorter forms do often include vital clauses like descriptions of royalties due on sales, a grant of rights to publish, and a statement of the timing (often quarterly) when the publisher sends the author’s royalty checks. However, shorter contracts are often missing a number of critical provisions that many authors don’t realize they need to look for.
When a problem arises, the author goes to the contract, only to find that the “friendly short form” doesn’t address that issue (or, when it does, the publisher prevails).
Here’s a list of important provisions many short-form contracts don’t include:
1. Thorough statements of rights/reservations of rights.
The shorter the contract, the more likely it is to simply grant the publisher “all rights” in and to the work “in all forms, formats, and territories.” Publishers don’t need “all rights” to a work. In fact, most publishers take print, ebook, and sometimes serial rights. Everything else is open for negotiation—and those other rights (“subsidiary rights”) should be separately addressed in the contract language. One-size-fits-all rights language is not the best option, and is something authors should watch out for.
2. Author termination rights.
Most publishing contracts last “for the life of copyright,” but that’s only the contract term if the contract isn’t breached or terminated earlier. Good contracts give the author several ways to escape if things go badly, including the right to terminate (and revert all rights) if the publisher fails to publish, goes out of business, breaches the contract, and/or fails to sell at least a specified minimum number of copies in a stated period of time. Short form contracts often fall woefully short on author termination rights (if they mention them at all).
3. Sales Statements.
It’s not enough for the publisher to send the author royalty checks. Each check should be accompanied by a sales statement detailing the number, price, and other relevant information about the books sold, returned, and exchanged during the sales period. Not surprisingly, short-form contracts often skip right over the issue of statements—and unwary authors often forget the need for documentation of sales until the contract is signed and the first (unexplained) royalty check comes in.
4. Audit rights.
The author should have the right to audit the publisher’s books and records (relating to the work) at least once in every calendar year. Good audit language goes beyond this single sentence, too (we’ll deal with the issue in more detail in another post).
5. “Out of Print” status defined and tied to sales.
Short-form contracts often omit the author’s “out of print” termination rights altogether or tie “out of print” status to “availability” – meaning that as long as even an ebook version of the work exists, the book is never out of print. This isn’t industry-standard, and it’s terrible for authors.
Note: this list is not exhaustive. There are many other important provisions which short-form contracts often omit (or fail to mention). I’ve listed the ones above as an example, to demonstrate some of the dangers of short-form contracts.
Sometimes, publishers tell authors that these clauses “aren’t needed,” or that authors should trust them to “do the right thing.”
Publishers and authors should be able to trust one another, and good publishing relationships do function like a partnership between the author and publishing house. However, it’s also true that good fences make good neighbors, and good contracts make for good partnerships—in every business, including publishing.
Never rely on any promise or representation which isn’t contained in the body of the contract. Contract law says that a promise which isn’t contained in the contract generally does not exist as part of the deal. (There are exceptions, but you should never rely on falling within an exception to the rule.)
And never, ever sign a publishing contract—especially not a “short-form” deal—without obtaining a professional’s opinion to ensure the contract protects your legal rights.
Here’s today’s seahorse palate-cleanser, Weeble – my little special-needs seahorse.
Have you ever seen a “short-form contract” (less than five pages long)? Did you notice any important clauses missing from the deal?