Book Publishing Contracts For Writers: What Should I Look Out For?

Dave, I just got a contract for a book from a publisher that I haven't worked with before. These long, tedious legal documents just befuddle me, however! Would you mind spinning through this and seeing what you think about the terms and clauses herein?

Here are my thoughts on this contract. Note up front that I'm not a lawyer and haven't received any particular training in contract interpretation. I do have an MBA and have spent lots of time with lawyers reading and rewriting contracts, however, so I think my advice will be helpful. Also, as a note to my faithful readers, I cannot review contracts for you without charging for my time, and frankly you'd be much better off asking a lawyer to help you out anyway. :-)

Rather than reproduce the entire contract, I'm going to just excerpt the highlights and follow them with my comments or thoughts. I am deliberately not talking about royalty percentage, advances, and other specific numbers because those aren't really appropriate to publish in a public forum of this nature.

.. there shall be no royalty payment on copies of the Book sold at less than Publisher's cost...

Determined by? Audited by? Actual number? These vague and hard-to-enforce clauses always make me anxious because it's built on trust without any ability for you to audit the books (with most publishers, at least). What if the book has a retail price of $19.99 and the publisher decides that $10 is their cost? Then any book sold at any sort of discount are 'less than the publisher's cost' and you don't see a dime.

NET RECEIPTS - For purposesof this Agreement, the Publisher's "Net Receipts" from sales shallmean net profit received by the Publisher from sales of the Book,less credits, returns and funds required for reprints.

Funds required for reprints is a printing / publisher cost of business, assuming that I'm understanding what's being referenced, and that costshouldn't affect the author. This clause is bogus and should be eliminated.

All monies received for direct saleswill be held for a period of 12 months to allow for credits andreturns.

That's ridiculous. All my MBA "future value of money" instincts cryout on this one. If there's a 'hold on reserves' that floats frompayment to payment, then que sera, sera, but having a 12 month lag is exploiting the system without any benefitto the author. I'd reject this.

TAXES - All payments madeunder the terms of this Agreement will be subject to USA Federalincome tax withholding, as required by the United States InternalRevenue Code.

No, these are royalty payments and I'm pretty darn sure that thepublisher doesn't have to worry about taxes, just report them asroyalty income for the author to the IRS. If you read the 1099MISC filing instructions on the IRS site, it explicitly says "include in this box gross royalties (before reduction for fees, commissions, or expenses) paid by a publisher directly to an author or literary agent or paid by a literary agent to an author."

The only instance where this 1099MISC might not be relevant is if the author is overseas, in which case the publisher needs to pay taxes on the amount that's being paid to the author. Not sure exactly how that'd be structured, but any halfway decent accountant should be able to shed some light on this topic.

ACCOUNT - All royalties andother income accruing to the Author under this Agreement shall becredited to an account maintained on the records of the Publisher(the "Royalty Account"), which Royalty Account will be charged forall amounts paid or payable to Author, including any advance payments,and for all amounts Author is charged, or obligated to pay, pursuantto this Agreement.

This smells of some sort of cross-accounting trick, somehow. I'd kick this out. Each book should have its own account or it should be explicitly stated that the account will not interweave credits and debits from different projects.

OVERPAYMENT - If any personcomprising the Author has received an overpayment of money from thePublisher or has an outstanding monetary obligation to the Publisher,whether arising out of this Agreement or any other agreement withthe Publisher, the Publisher may deduct the amount of such overpaymentor outstanding obligation from the Royalty Account or any sums dueto such person under this Agreement.

And there's the cross-accounting clause. Debt with one book should not affect credit (royalties) with another book. Absolutely reject this. Each book project should stand on its own two feet.

AUTHOR DISCOUNT - The Authorshall also be entitled to purchase additional copies of the Bookfor the Author's personal use (self-promotion) at a discount oftwenty-five percent (25%) off the suggested retail price of theBook, plus the cost of shipping and handling, while the Book remains in print. That's ridiculous. The book should be available to the author atcost plus shipping, not at a discount rate that's less than the discount a typical bookstore sees! At least 45% off, if not 60% off the cover price. The publishershouldn't try to exploit the author in this fashion. Theoretically, the author and publisher are partners on this publication, after all.

AUTHOR'S CORRECTIONS - Author alterationcosts in excess of ten percent (10%) of the cost of the originalcomposition, and any expenses incurred by the Publisher in themaking of Illustrations replacing those originally submitted withthe Book, shall be charged to the Royalty Account.

I think it's important to specify that it depending on why these changes are required. If there's a new version of the program and the screenshots need to be replaced, or if there's a major corporate reorganization or change in the laws or economy, that's not a cost the author should incur. It's just part of the risk of trying to capture in print an element of our fluid, ever-changing world.

COPYRIGHT - The Author hereby expressly grants, transfers, and assigns to the Publisher full and exclusive rights to the Book, including, without limitation, the copyright in the Book, all revisions thereof, andthe right to prepare translations and other derivative works based upon the Book in all forms and languages...

And what payment does the author see if the publisher prepares atranslation or derivative work? Curiously that isn't specified in the contract as far as I can see...

The Publisher will register copyrightin the Book in the name of the Publisher in compliance with theUnited States Copyright Law. If the Publisher supplies artwork(including artwork for the cover of the Book), it may registercopyright separately therein in a manner satisfactory to thePublisher.

Note that there are publishers who let the author retain copyrightof the material while the publisher copyrights the overall work. Amuch nicer approach, in my opinion, much more respectful of theauthor.

Tip to new publishers: the author can retain copyright without infringing on your rights of publication or compilation copyright.

The Author represents andwarrants that, except as previously disclosed to the Publisher inwriting, the Author has not aided in the preparation of and is notunder any obligation to any other publisher or person to prepareany publication directly competitive with the Book, or which couldinterfere with his or her performance of this Agreement or interferewith or impair the sale of the Book.

And here's the first glimmer of the non-compete clause. This is ano-go. You need to have it either MUCH more specific (like "authoris under no obligation and shall not produce any other work thatis specifically addressed at the introductory Bash shell scriptprogramming audience, to be marketed online through Amazon marketplaceand other ebook venues") or strike this entirely.

The publisherdoesn't own you, the author, they're just buying your words.

NON-COMPETITION - The Author agrees that so long as the Book remains in print, the Author will not participate in the preparation or publication of, or allow his or her name to be used in connection with, any workwhich might compete with the Book or the exercise of any rights granted Publisher hereunder. The Author may, however, draw on and refer to material contained in the Book in preparing articles for publication in professional journals, for teaching purposes, and for delivery at professional meetings and symposia, providedappropriate credit is given to the Publisher and the Book.

Which, of course, is unacceptable. If I write a book for thispublisher called, say, Fifty Ways to Hack your Shell (Hey! That'sa good title!) I would be prohibited from ever writing about shellprogramming or, ostensibly, any Unix topic that included discussionof shells because it *might* compete with the book.

This needs to either be much, much more tightly defined or removedentirely.

Actually, I hate all these non-compete clauses because they're where you can really see how most publishers stack the deck against the author, even though it should be a fair, equitable and professionally respectful relationship.

OUT-OF-PRINT PROVISIONS - If at any time, the Publisher determines that the demand for the Book is insufficient to warrant its continued publication, the Publisher may declare the Book out of print. In such event, the Author shall have the right to purchase the Publisher's stock ofthe Book, if any, at one-quarter (1/4) of the Publisher's established list price, but not below cost.

That's just daft on the part of the publisher. If it's out of print,then they have a warehouse problem and they should just liquidatethe remaining books to the author even at just shipping costs. It'dbe cheaper than having to pay for them to be destroyed...

If the Publisher declares the Bookout of print, then upon the Author's written demand, the rightsgranted by the Author under this Agreement will revert to theAuthor...

I'm not sure that's consistent with copyright law. This is reallywhy it's better to have the author retain copyright because thenonce the book goes out of print the material naturally falls backto the author anyway, without remembering to notify the publisherin writing.

I hope that this review has been helpful and informative. What you're willing to accept in a publishing contract is directly affected by why you are writing the book in the first place, so think through your motivations, the big picture, and your career before you decide exactly what you'll accept and what you'll insist must be removed. For the record, I have rejected contracts and lost writing gigs because of unacceptable clauses. I think it's worth it, but you, in my position, may not think so.

Again, just to reiterate, this is not offered as legal advice and I disclaim any responsibility for your acting upon anything I've said herein! :-)

Dave Taylor is author of sixteen technical books including the award winning, best selling Wicked Cool Shell Scripts and the popular titles Learning Unix for Mac OS X Panther and Creating Cool Web Sites. He also runs the popular and lively Ask Dave Taylor! Q&A Web site where he fields business and technical questions every day, including questions specifically about The Writing Business.

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