The Society Of Authors Guide To Publishing Contracts

Transcript

The Society of Authors 84 Drayton Gardens, London SW10 9SB Guide to Publishing Contracts Publishers sometimes imply that they are offering a standard contract, but even when that is true (which is by no means certain) they are very unlikely to withdraw an offer simply because the author asks for reasonable improvements. Concessions and points on which to take a firm stand will vary according to the status of the writer, the nature of the work, etc., but even authors who are not yet established can often obtain improved terms by bargaining. Members of the Society are entitled – and encouraged – to receive (without additional charge) detailed advice on individual contracts. This Guide is intended to serve as background to that advice. Preamble This should give the date of the contract, the name and address of author and publisher, and the title, or provisional title, of the book. 1 The Work Ensure that what you and the publishers have in mind are the same. Agree, in writing, the details (e.g. the length, subject-matter, target readership, the number and type of illustrations, whether an index is needed). 2 Rights Granted (a) You should almost invariably retain copyright and grant the publishers an exclusive licence. Publishing licences are generally for the full period of copyright protection, i.e. until 70 years after the author’s death, subject to certain important termination provisions (described at point 22). However, some publishers will accept that the terms of the contract should be open to periodic review; and in some circumstances e.g. contracts for electronic rights or an American or translated edition, publishers may well agree to a much shorter licence period. An author not represented by an agent will normally grant the publishers an exclusive licence to publish the book in the English language worldwide, with an interest in many or all of the various so-called ‘subsidiary rights’ (listed at point 16). If an agent is involved, or you are in a good position to sell such rights yourself, you may want to retain e.g. US and translation rights and dramatisations. Most publishers will insist on controlling ebook rights (meaning the verbatim text of the work on its own in an electronic form for reading), but try to ensure that no other electronic or online use will be made of your work without your agreement. (b) Publishers sometimes insist on taking copyright, and this may not be unreasonable, for instance with a work containing short entries by a large number of different contributors, a commissioned non-fiction work which is part of e.g. a publisher-owned course or series, or if you are updating someone else’s book. If you have to assign copyright, confirm the following safeguards: • no changes beyond routine copy editing will be made without your agreement; • you will be credited wherever all or parts of your work are reproduced; • your fee (or advance) should be paid part on signature and the rest when you deliver what was commissioned (not on ‘acceptance’ or on publication); • if the work is done for a fee, or the project was publisher-originated and commissioned, the publisher should be paying all copyright permission fees and indexing costs; • your fee/advance is for writing. If you do other work, e.g. picture sourcing, that should be paid for separately; • you will be paid a top-up fee for the inclusion of your material in new editions (paperback, translation, revised edition); • you will have first refusal to revise your contribution(s) for future editions, subject to further payment to be negotiated at that time; • if the work is exploited in any other way, e.g. reproduced in a different book, in a journal, or online, you will be paid for and credited on such further use; • there is a proper termination clause (see point 22) – or at least no unreasonably restrictive non-compete clause; and if you are doing the work for a one-off fee, there should be no non-compete clause (see point 21); • confirmation that the copyright is not assigned until the full fee has been paid. 3 Delivery of the Work (a) Publication schedules are prepared well in advance, and the late delivery of a book can have serious consequences – especially if the publisher has guaranteed deadlines to other publishers overseas. You may, therefore, be held strictly to the delivery date and a publisher might even reject a book that is late, particularly if the deadline is ‘of the essence’. If, through unforeseen circumstances, you are running late, tell the publishers as soon as possible, explaining the problem and asking whether the deadline can be postponed. (b) Beware caveats about ‘approval’ or ‘acceptance’, unless the circumstances in which the book may be rejected are clearly defined. (Also watch out for ‘approval’ or ‘acceptance’ as a condition of being paid your advance.) This is important, particularly as you may have started a book with enthusiastic support from one editor, but when the work is delivered you find yourself in the hands of someone with different tastes and ideas. The publishers should satisfy themselves at the outset that you are capable of writing the required work. Provided the book, when delivered, follows the length and outline agreed, the publishers should be under a contractual obligation to publish it (subject possibly to being entitled to ask for reasonable and specified changes to the typescript before publication). If the publishers are given discretion to reject the book, it should be only on the grounds that it fails to follow the agreed specifications. Even when the contract contains a firm undertaking, the publishers probably cannot be compelled to publish; but should they fail to do so, you will be legally entitled to compensation for breach of contract. (c) With many educational and some co-edition projects, amendments may well be requested between delivery and publication (e.g. adjustments needed to make text mesh with illustrations, overseas co-publishers having different requirements, or, in particular, because of feedback from trialling of educational materials). Get assurance that you will not be penalised if the specifications change, or the deadlines are squeezed, for reasons beyond your control. In particular, check that you are not expected to pay if extra people have to be brought in because the specifications change at a late stage when it is not possible for you on your own to meet the new requirements by the originally agreed deadline. If you are required to add extensive new material, a fresh deadline and in some cases a further fee may be appropriate. 4 Proofs (a) It is normal for the author to undertake to correct and return proofs within a specified time (generally 7–14 days), and to bear the cost of proof corrections, other than printers’ errors, above a specified allowance (10% or 15% of the cost of composition). Submit a typescript which is as near perfect as possible; what publishers charge for proof corrections may well be out of all proportion to the original setting costs. If the publisher has freedom to edit, you may want to ensure that you are sent the edited version for approval before it is set in proof. (b) If it could be a relevant, agree that you will not be charged for proof changes made at the request of the publishers (e.g. to accommodate picture-layout). (c) For some specialist non-fiction works, notably some medical books, publishers have been known to pay for a subject-specialist proof-reader. 5 Printing and Publication (a) The publishers should undertake to publish the work within a specified time, e.g. 12 months (sometimes 18 for highly illustrated works) from delivery of the typescript or, if the typescript is already with the publisher, from signature of the agreement. Ideally the form of publication (e.g. hardback, trade paperback, mass market paperback) and the approximate published price should be specified. (b) Publishers insist that all details as to the manner of production, advertisement and distribution of the book are under their control. Nevertheless, they should – and most will – undertake to consult the author fully about the blurb and catalogue/website copy, and not to change the title or text without your consent. If you request it at the contract stage, they should also give a commitment to take account of your views on the jacket design and to show you jacket roughs (in time to change things). They usually welcome publicity suggestions, such as a list of suitable recipients for review copies. (c) Contracts often stipulate that the author will participate in a certain amount of promotional work, in which case the publishers should pay your reasonable travel expenses. If you are unable or unwilling to do this, make sure the publishers know. (d) It is easy for educational writers, in particular, to find themselves stuck on a seemingly never-ending treadmill of promotional trips. If you feel that too much is being asked of you, commit to, say, two weeks of promotional work after which you reserve the right to charge a specified fee per day (one EFL member cites £500). If you are only being paid a fee for the writing, or have written only a component of a course, any promotional work should be paid for in full. 6(a) Original Artwork (i) Be clear about the nature and number of illustrations required; the form in which they should be delivered (e.g. should a diagram be delivered as a rough, camera ready copy, or as a PDF file or similar? If further work is required to get your illustrations ready for the printers, this can be costly); and the intended form of reproduction (a multicoloured graph or map can be rendered unintelligible if it is reproduced in black and white). (ii) If the publisher is supplying the illustrations, do you have any say in their selection? (iii) It may not be unreasonable for the publisher to insist on taking exclusive rights to specially commissioned artwork, e.g. for an illustrated children’s book. However, with pre-existing and specially prepared artwork, it may be more appropriate for you to grant only a non-exclusive licence, leaving you free to use the artwork elsewhere. This can also apply to small items within a larger work e.g. individual recipes, poems, or tables. (iv) Lavishly-illustrated books are often published on an international basis – the originating publisher supplying the illustrations (which for some books may involve you in photo shoots). If the artwork has to be specially prepared, and/or the project has been originated by the publisher, the normal arrangement is for the publisher to foot the bill and own the rights, but if such artwork features you and/or your creations or techniques, the publishers should agree not to reproduce it other than in your book(s) without your agreement. 6(b) Quotations and Illustrations from other sources (i) Many contracts make the author responsible for obtaining permission for the use of any material from other sources, and for paying permission fees. Permission fees can be extremely costly, but publishers can often be persuaded either to pay the entire cost or to share it with the author; or you may be able to arrange for the publisher to pay your share in the first instance and deduct a corresponding sum from the royalties. (ii) If you are preparing a work in which quotations are an integral part (e.g. a study guide or anthology), or supplying copy for a commissioned non-fiction work, or if you are being paid on a fee-only basis rather than royalties, the publisher should pay all permission fees. And if you are expected to do extensive picture research for a publisher-originated book, remember that a freelance picture researcher would charge an hourly or daily fee for doing so. (iii) Some rights holders are unwilling to give permission for electronic rights, or charge higher permission fees for such use. If your publisher insists that permissions must include electronic or online rights, and such use – or your royalties from such use – will be negligible, the publisher should be paying the relevant permission fees. (iv) Give yourself as much time as possible when clearing permissions because rights holders (especially publishers’ permissions departments) can take a very long time – sometimes months – to respond to requests. (v) Sometimes picture libraries and galleries charge for the loan of artwork in addition to a fee for reproduction in a book – and those fees may relate to material in their possession but of which they do not own the copyright, so you will in addition have to clear permission and probably pay a further fee to the copyright owner. Rights holders often also request a voucher copy of the book – again confirm whether supplying, and paying for, such copies is your responsibility or the publisher’s. 6(c) Indexing Many contracts make the author responsible for supplying or paying for the index. Engaging a professional indexer can be costly. Publishers can often be persuaded either to pay the entire cost (especially for scientific or professional books – much less likely in the humanities) or to share it 50:50 with the author. If you are being paid only a fee, the publisher should be supplying and paying for the index. 7 Warranty and Indemnification (a) The author has traditionally been expected to give warranties and to indemnify the publishers against the risks of libel, invasion of privacy and infringement of copyright. Publishers tend to be inflexible about such clauses, claiming that they are bound by their insurers to use certain wording. The warranty should cover ‘any breach by the Author (unknown to the Publishers)’. The inclusion of the phrase ‘unknown to the Publishers’ could be important. If the publishers know that the book contains prima facie libellous passages, they should not expect the author to indemnify them if successful libel proceedings are brought. Publishers often insist on the right to alter the text to remove any material which they consider, or are advised by their lawyers, might be actionable. You may wish to add a provision that, should the publishers so alter your work, the final text shall be subject to your approval. The need for total frankness, confidence and co-operation between author and publishers over libel risks and the danger of infringing the growing right of privacy cannot be emphasised too strongly. If you or your publishers feel there is the slightest cause for anxiety, the book, or at least the potentially dangerous passage(s), should be read by a specialist lawyer. Publishers are often prepared to pay, or share the cost, of doing so. Many also arrange for their authors to be covered under the publisher’s own insurance policy (at little additional expense). (b) For more, see also the Society’s Guide to Libel, Privacy and Confidentiality (available in the members section of the website or free to members on request). (c) Those writing on professional or technical subjects should beware of the remote possibility of an action claiming negligent mis-statement. The Society can supply further information on request. 8(a) Advance, fiction and general non-fiction Although publishers deny it, the bigger the advance, the more effort they are likely to make to sell the book in order to make a profit. The most usual arrangement is part of the advance to be paid on signature of the contract, part on delivery of the manuscript and part on publication. Point 3(b) explains the importance of the word ‘delivery’ as opposed to ‘acceptance’. Without an agent it may be difficult to secure an advance much above two thirds of the royalties likely to be payable on the first edition. The advance is usually on account of all monies, including subsidiary rights income, accruing to the author under the contract. It should be non-returnable except in the event of the contract being cancelled because the author fails to deliver the agreed work by the agreed deadline. 8(b) Advance, scholarly, professional, reference and highly-illustrated works (i) For some types of writing, advances are traditionally very low or non-existent, e.g. academic and medical works. Negotiating will often result in more than was originally offered. If no advance is possible, some – notably medical – publishers will be prepared to pay secretarial expenses or e.g. meet the cost of a subject-specialist proof-reader and/or indexer. (ii) For commissioned books where the work may never finally be published – for instance an educational work which is subject to changes in the National Curriculum, or a highly-illustrated work which is dependent on the publishers securing co-edition deals to make it financially viable – it is important to agree at the outset what you will be paid if the work has to be abandoned for reasons beyond your control (generally that should be the full advance or fee rather than a reduced kill-fee). (iii) If your writing status warrants it, consider insisting that, should the project be abandoned before publication for reasons other than your default, you be entitled to an additional payment by way of compensation for the ‘opportunity cost’ of you being taken off the market for the critical period (i.e. the proposed project does not go ahead and by then you have no chance of writing for that level/area for other publishers instead). (iv) If you are only being paid a fee (no royalties) – particularly a problem with children’s illustrated non-fiction books – it should be payable when your contribution is delivered, rather than on publication (which leaves you at the mercy of delays by publishers and other contributors). If the publishers will not pay royalties, they may be persuaded to pay refresher fees when an agreed number of copies of the work have been sold, or per printing, and/or each time the work is published in a different format or edition (e.g. a translated edition). 9(a) Royalties, fiction and general non-fiction (i) Hardback royalties These should generally start at not less than 10% of the retail price and rise to 12.5% after, say, 2,500 copies have been sold, rising to 15% at about 5,000 (a successful author may be able to negotiate higher percentages). (ii) Paperback royalties These should start at not less than 7.5% of the retail price and rise to 10% after, say, 30,000 copies have been sold in the case of mass market (small, A-format) paperbacks, or 10,000 for trade (large, B-format) paperbacks. If the author is an established bestseller, the starting royalty will be higher and the royalty may even rise through 12.5% to an eventual 15% at about 150,000. (iii) ‘High discount’ royalties Many sales – hardback and paperback – may well be at discounts of over 50% (including sales to highstreet chain booksellers and Amazon). Watch the small-print of your contract and you will almost certainly find that when copies are sold at discounts of 50% (or preferably 52.5%) or more, your royalty will be lower. A drop to four-fifths of the full royalty is common, with a further drop to three-fifths on sales at discounts of, say, 62% or more. A less advantageous arrangement is for the royalty to drop from 10% of the published price to 10% of the publishers’ receipts (i.e. retail price minus the discount given to wholesalers and retailers). Beware a reduction in the size of the percentage in addition to a switch to receipts. (iv) Children’s and illustrated books Lower royalties have traditionally been offered on children’s books (which tend to be very price-sensitive) and illustrated books (where the production costs will be higher). Negotiating may well result in an improved offer. (v) Small reprints There should be no be provision for reduced royalties in the case of small reprints. If, however, the publishers insist that the provision must stand, ‘small reprints’ should be defined as ‘reprints of 1,500 copies or fewer’ for hardbacks (‘5,000 copies or fewer’ for paperbacks) and the reduced royalties should apply to only one such reprint in any 12 month period. It should also be clear that the provision does not apply to copies as print-on-demand. (vi) Export royalties In the case of overseas sales, contracts usually provide for royalties calculated not on the British published price but on the price received by the publishers (the net receipts). If the royalty is calculated on the publishers’ receipts, the percentages should not be less than the home royalty percentages; if on the British published price, not less than half the home royalty. 9(b) Royalties, scholarly, professional, educational and highly-illustrated works (i) For such works, you may well find that you are offered royalties based on the publishers’ net receipts. Net receipts should mean the recommended retail price minus any discount given to wholesalers, retailers etc but without any other deductions. There should be no suggestion that manufacturing or distribution costs will be deducted, and beware any royalty based on ‘profits’. To get some idea what a net receipts royalty means in practice, ask the publishers to indicate which part of the (often lengthy) royalty clause is likely to apply to the majority of sales, and what the prevailing discount rate is likely to be. (ii) Generally the royalty percentages should start at 10% for hardbacks, 7.5% for paperbacks – and rise after an agreed number of copies have been sold. If your royalties are based on receipts, there is no justification for a reduction in the percentage on high discount sales – the income to you will shrink as the discount grows in any case. And expect the total royalty to be shared amongst the authors in its widest sense – including an illustrator or a series editor for instance. (iii) If you are also writing components which will be given away, unless you are paid discrete fees (rather than one advance which is offset against royalties on those components that are royalty-earning), you are actually creating them for no payment. And you should be paid something on any component which relies on your input but is created by others - at least where such a component could appear without, or in competition with, your royaltybearing materials - otherwise, again, the publisher is making commercial mileage out of your expertise without any benefit to you. 9(c) Co-Editions and bookclub editions Co-edition publishers sell their own books in the UK, and manufacture copies to be sold by foreign publishers abroad. Packagers sell no books to the consumer themselves but manufacture copies for others to sell (in the UK as well as abroad). This happens especially with highly illustrated works. For such books going into translation, the fully laid-out work is printed by the original publisher, leaving the text sections blank for the translated text to be slotted in. Conventional publishers who are doing a deal with a bookclub, direct mail company or supermarket will likewise often manufacture the copies for that third party to sell. (i) On such copies you will almost invariably be paid a royalty based on the original company’s receipts. Those receipts are likely to be very modest (though the print-runs will probably be large and the copies are sold ‘firm’ rather than on sale or return). Your publishers may sell copies to the co-edition partner or bookclub for an all-in price (known as a ‘royalty inclusive’ deal) or – less likely – the deal may be on a royalty basis (known as a ‘royalty exclusive’ deal). Your contract should cover these two possibilities separately: On royalty inclusive sales, the author should normally receive at least 10% of the publishers’ receipts. This should apply to paperback as well as hardback editions. On royalty exclusive sales, the author should receive at least 50% of the publishers’ receipts (i.e. 50% of the royalties paid by the book club or co-edition partner); ideally 60% up to £5,000 and 70% thereafter. Because the disccounts involved tend to be very high, royalty income will be commensurately small. It is important to ensure that your advance is fair reward for the work you are doing as it may well, in practice, be all you are paid. (ii) Packagers frequently pay one-off fees rather than royalties. Ensure that the fee is a fair reward for the work you are doing, and the mileage the packagers may make of it (otherwise – turn down the proposal). And try for a further fee on reprints or, say, per 10,000 copies sold; and a further fee per new edition e.g. an edition in a fresh format or in a new territory. 10(a) Special sales Ideally there should be no premium, own brand, special or omnibus editions within an agreed period (even if only a month or two) from first publication without your consent, and ‘special’ sales – a very loose expression – should be defined as clearly as possible (e.g. bulk sales other than through traditional outlets). Publishers are generally unwilling to concede a timelag, but such copies are likely to be sold in large quantities and at high discounts – so could resurface as ‘used’ copies on Amazon early in a book’s life. 10(b) Cheap Editions and Remainders (i) There should be no cheap edition or sales at cost price or less within at least one year from first publication, and not within, say, six months from publication of a new edition (which could mean hardback remainders on Amazon alongside the new paperback) without your consent. Cheap editions (often hard to distinguish from remainders) should be defined as editions published at less than two-thirds of the original price. (ii) If the work is to be remaindered, the publishers should pay you 10% of their receipts if copies are sold at above cost, and give you first refusal to purchase copies at the remainder price. If the publishers wish to pulp surplus stock, they should give you first refusal to obtain copies at no charge (other than delivery). 11 US Rights It is wise to discuss how US rights are to be handled. Ideally you should be consulted on all offers received. Any of the following arrangements may apply: (a) Publishers may sub-license a US publisher to produce a separate edition. The US publisher will pay an advance and royalties, and the author should receive at least 80% of these (preferably 85%). (b) Some British firms operate through allied or subsidiary companies in the US or set up their own distribution arrangements there. If so, the author should be paid royalties similar to those for home sales, but calculated on the US published price, or on the US company’s receipts (less favourable, but still much better than the arrangement described at point 11(c)). In the contract try to ensure that, on sales to a sister company, royalties in the US are based on sales by not sales to that sister company. (c) The publishers may ship bound or unbound copies (sheets) to a US firm for distribution. The US company may well insist that the price paid for the copies includes your remuneration. You will then receive only 10% or at most 15% of the British publishers’ receipts. This is the same sort of deal as described at point 9(c). Since the price paid by the US company may well be little more than the manufacturing cost, a deal of this kind is a poor one and should be resisted unless (as, alas, is too often the case) it seems to be the only feasible way of selling to the US market. 12 Print-on-Demand There is a risk that, after an initial period, publishers will allow the work to go out of print but keep it available as print-on-demand (POD). Ideally there should be no POD version without your agreement. Failing that, the fact that copies are produced as POD should be undetectable, and the contract should include the following: (a) the work will not, without the author’s consent, be produced as POD until the advance has been earned out or until, say, three years from first publication, whichever is the sooner; (b) termination provisions along the lines suggested at point 22(b); (c) The POD version will be included in the publisher’s current catalogue and website, and listed with online retailers; and orders will be met within a specified time. Making clear that the work is in print, and prompt response to orders, are vital. Buyers are impatient and spoilt for choice – other books in the same genre, as well as used copies of your book, can often be bought within 24 hours; (d) A guarantee that copies will not be sold at a price which varies by more than 20% from the retail price of the traditional copy, without your agreement. Some authors have reported their book being sold at a high price when offered as POD. This is important because, again, used copies can be bought cheap from online retailers, and competing works in the same genre may be easily available at a lower price; (e) Your royalty will be no less than on traditional copies – with no ‘small reprint’ reduction and no reserve against returns. Indeed there is a strong argument that the royalty should be rather higher, after an agreed number of POD sales, because the publishers have no warehousing expenses and no risk of the cost of unsold stock or returns; (f ) A guarantee that the work will be supplied in response to ‘sale or return’ orders. Otherwise, most chain retailers will not be willing to stock the book in their shops; (g) POD rights will not be sub-licensed to another company; (h) You have the option of reverting all unlicensed subsidiary rights; or if you are happy to leave them with the publisher, the publisher’s commission (at least on any new licences granted) will be, say, 15–20%. If a publisher is no longer making any significant investment in the work, it is unreasonable for it to continue to take the same share of control/remuneration from exploitation of the work by license. 13 Electronic and Audiobook Rights It is easy for negotiations to get bogged down when it comes to these rights. Publishers understandably want to be able to sell the work in as many ways as possible, and be protected from exploitation of the work by others in forms that might undermine sales of their editions. On the other hand, electronic rights are still highly speculative both in application and significance, so authors are strongly advised to retain as much control as possible. 13(a) Fiction and general non-fiction Publishers will probably want to control English-language ebook rights – meaning the full verbatim text of the Work on its own, without enhancements, in an electronic form for reading; and (at least if you do not have an agent) English-language audiobook rights – meaning the undramatised text of the Work on its own, without enhancements, in a form for listening. In most cases, your publishers should not need any other electronic version rights, although they may want a guarantee that you will not, yourself, exploit such rights without their agreement. If the publishers do control other electronic version rights, clarify that there will be no such use of all or parts of the Work without your consent, and on terms to be agreed. (i) You should have a right of veto, or at least consultation, over some/all of the following: abridgement, adaptation e.g. for a multi-voice or dramatised recording, or enhancement e.g. by the addition of illustrations, music or interactive elements; making the download-audiobook or ebook available for rental or lending; if you feel strongly against it: inclusion in Amazon’s Search Inside or Google’s Book Programme; but – understandably – publishers increasingly insist on the right to permit uses of limited extracts of the work online for promotional purposes, and all the evidence to date suggests it is more likely to boost than undermine sales; the availability of cheap or free audiobooks or ebooks if they are for the purpose of promoting anything other than sales of that work itself. (ii) The publishers should be willing to guarantee that any sub-licence of rights in electronic or digital form will be for a maximum period of, say, three years. (iii) If you are retaining US rights; if there is a chance of extracts being published in a newspaper or magazine; or if radio, TV or film exploitation is a realistic possibility: the existence of the work online could jeopardise the deal, and a time-lag (or at least strict territorial controls) before any online use may be made of all or parts of your work could be important. (iv) If you would like first refusal on reading the audiobook yourself, clarify that with the publishers. (v) If you want to be able to reuse parts of the work on your own website, secure the publishers’ agreement, and ask for a link to your site in copies of the book. (vi) The contract should make clear that, where relevant, your Rental and Lending Rights will be administered by the appropriate collecting society. 13(b) Scholarly, professional and educational works (i) Publishers will probably insist on controlling all electronic rights, because in these areas online availability of a work may well rapidly become its main route to market (to use a publishing expression). Consider whether you want to hold out for any of the controls recommended at point 13(a)(i), but bear in mind that securing good termination/non-compete provisions may be more important – see points 21 and 22. (ii) If the publishers ask you to create material for a supporting website, you should be paid for such work. If you are asked to maintain it, and are willing to do so, insist on a clear timescale (e.g. monthly updates for two years) and a fee or monthly/annual retainer to cover this potentially substantial use of your time and expertise. (iii) If you want to be able to reuse parts of the work on your own website, secure the publishers’ agreement, and ask for a link to your site in copies of the book. (iv) The contract should make clear that, where relevant, your Rental and Lending Rights will be administered by the appropriate collecting society. 14 Ebook and Audiobook Royalties 14(a) Fiction and general non-fiction (i) The royalties on online and download sales should reflect the fact that many of the publishers’ traditional costs do not apply (there are almost no run-on printing costs after the creation of the ‘master’, and there are no warehousing costs, nor the risk of losses caused by unsold stock and returns). On ebooks and download-audiobooks, we believe the author should receive at least 25%, preferably 35%, rising at an agreed level of sales. Some publishers offer 50% of net receipts, most others offer 15–25%. Resist anything less than that. (ii) On other forms of electronic access – e.g. rental or pay-per-view – the author should be receiving at least 50%, preferably nearer 85%, of the publisher’s net receipts. (iii) If you are at all concerned about the proposed royalties on ebooks or download audiobooks, your publishers should be willing to confirm that the royalties are subject to renegotiation in, say, three years’ time. Ideally add the proviso that at that time the percentages may be increased if there is justification, but will not be reduced (on the grounds that if sales in that form are minimal, the question is academic, if they are unexpectedly high, the author should share in the success of that version). (iv) The royalties on sales of audiobooks in cassette or disc form should be broadly in line with book royalties (possibly slightly reduced to take account of the cost – almost always a one-off fee – of the reader, adaptor or abridger). (v) Books other than in conventional form are subject to VAT – this cost should be absorbed by the publishers. 14(b) Scholarly, professional and educational works Your publishers may insist on absolute freedom to exploit the work, in whole and in part, in all electronic forms; and offer deplorably low royalties across the board. Some will pay 15%. Failing that, insist on a minimum of 10% or your volume form royalty (whichever is the higher). Alas, many authors in these areas of writing are in a weak bargaining position (and the impact of similar material being available free online cannot be ignored). If you have the clout, insist on improvements. If not, consider: are the poor terms justified because publication by this particular publisher, or inclusion in this particular work or series, is of value (e.g. for RAE purposes); or because you are being paid a sufficiently generous sum up-front? If not, would self-publishing (not to be undertaken lightly), or simply saying no to the commission, be preferable? 15 Subsidiary Rights 15(a) Fiction and general non-fiction Subsidiary rights can sometimes be as valuable as the basic publication rights. If you use an agent, some/many of these rights (notably those marked *) will probably be excluded from the publishing contract and be marketed by the agent. In particular, for film deals, specialist advice is strongly recommended. If the publishers control film, dramatisation or merchandising rights, any licence should be subject to your agreement, or at least discussed with you before acceptance. If no agent is involved, your publishers are probably in a better position than you to market certain rights (e.g. foreign editions) effectively. However, try to retain the rights marked **. *First serial rights the right to publish one or more extracts from the work in a newspaper or periodical, before book publication: [generally 85–90%] Second serial rights the right to publish one or more extracts from the work in a newspaper or periodical, after book publication: [not less than 75%] Paperback rights [not less than 60% and preferably on a rising scale] Anthology and quotation rights [not less than 50%, often 60%] Large-print rights [not less than 50%, often 60%] *Translation rights [not less than 75%] *US rights [not less than 80%] Readings on radio or television [not less than 75%] Audiobook rights as cassettes/discs [not less than 50%, often 75%] Mechanical rights this vague heading can cover uses such as ‘film micrography’, but also sometimes includes DVDs and similar. If it is not satisfactorily defined, try to get it deleted: [not less than 50%, often 80%] **Print-on-demand: it should be clear that print-on-demand rights will not be sub-licensed (other, possibly, than with the author’s agreement). **Sub-licensed download audio rights [not less than 50%, preferably nearer 85% or rising to 85%]. Seek an undertaking that the publishers will not sub-license these rights for more than, say, three years at a time. **Sub-licensed ebook rights [not less than 50%, often 80%]. Seek an undertaking that the publishers will not be sublicensed for more than, say, three years at a time. **Sub-licensed other electronic version rights [not less than 50%, often 80%]. Seek an undertaking that these rights will not be sub-licensed for more than, say, three years at a time. **Dramatic, film, TV and radio broadcasting rights (other than straight readings of or from the work) [generally 85–90%] **Merchandising rights [not less than 80%; or if the merchandising agent’s commission is coming out of the publisher’s share – not less than 50%] **Any rights not specified above: should be reserved by the author. 15(b) Scholarly, professional and educational works (i) Where subsidiary rights will be of only marginal relevance (at least in commercial terms, as far as the publisher is concerned), traditionally the income is divided 50:50 between author and publisher. But that is not writ in stone, so if any rights could be of importance, try for a higher percentage – or ask for them to be excluded e.g. dramatisation and TV rights (which could include documentaries). 15(c)(i) Rental and lending Rental rights are currently virtually non-existent but could easily become much more important if downloading or pay-per-view catch on, in which case they may well be best administered on your behalf by ALCS. If rental rights are mentioned in the contract, they should be reserved by the author (or shared 50:50 with the publisher). Public Lending Right (PLR) goes, by law, 100% to the author. 15(c)(ii) Collective licensing For practical reasons, some rights (e.g. photocopying in schools and universities) can only be handled on a collective basis. The organisation handling such rights for authors is the Authors’ Licensing and Collecting Society (SoA members have free membership of ALCS, but you need to complete an ALCS mandate). Your contract should include a clause granting ALCS the licence to handle appropriate rights – NB including rental rights – on your behalf. 16 Accounts (a) Whether the contract provides for royalty statements to be sent to the author twice yearly or only once – twice is usual – the monies due should be paid within three months of the date to which accounts are made up. Once the advance has been earned, money from sub-licences (over a certain sum e.g. £100) should be paid to the author within, say, 28 days of receipt. (b) There should be a clause giving you the right upon written request to examine the publishers’ books of account, at your own cost unless errors exceeding, say, £50 or 5% are found in which case the costs should be paid by the publishers. (c) If you are registered for VAT, you must give the publishers your VAT registration number. (d) If there is a ‘reserve against returns’ (i.e. holding back a percentage of the royalties due to an author in anticipation of unsold copies of the work being returned by booksellers), it should be limited, e.g. not more than 15% of the royalties due on the hardback edition, or 25% of the paperback royalties. The publishers should only be entitled to withhold any reserve at the first accounting date following publication or reissue of the work, and the balance should be repaid to the author not more than 12 months later. (e) The publishers should be entitled to offset any unearned part of the advance, or any sum owing in respect of returns, only against income generated by the book in question. References to ‘any other agreement’ should be deleted. 17 Copyright Notice and Moral Rights (a) The publishers should undertake to print a copyright notice in all copies of the book in the form ‘ © [author’s name] [year of first publication]’. (b) The moral right of integrity is the right not to have the work subjected to ‘derogatory treatment’. Some publishers ask for a partial waiver of the right of integrity. This is not unreasonable if the waiver extends only to changes necessary for the work to be adapted for other editions e.g. an audio cassette (although you may want a veto on any attempt to adapt the work to American-English). There should not be a blanket waiver of your right of integrity without very good reason. (c) The right of paternity is the right to be identified as the author of the work. Unlike the right to integrity, it has to be ‘asserted in writing’ and it is sensible for this to be done in the publishing contract and included under the copyright line in the book. The precise wording is unlikely to be critical. (d) Moral rights do not apply to work published in a newspaper, magazine or similar periodical, or to contributions in an encyclopaedia, dictionary, yearbook or other collective work of reference. 18 Author’s Copies Publishers almost invariably undertake to supply the author with at least six free copies of a hardback and ten of a paperback. Many offer double this number (if asked), plus a copy of any sub-licensed edition. If those granting permission (e.g. for an anthology) request a free copy of the book, clarify that such copies will be supplied by the publishers. It should also be clear that the author can buy further copies at a discount. Many publishers now offer a discount of 50%, if payment is sent with the order. 19 Actions for Copyright Infringement It is usual for contracts to include a clause empowering the publishers to institute proceedings for infringement of copyright. The publisher should indemnify the author against any costs, and it should be clear that any monies recovered from such proceedings will be divided equally between publisher and author, after deduction of costs incurred. 20 Revised Editions (a) Many contracts require the author to revise the book for a new edition should the publishers ask him/her to do so. If such a clause is not relevant to your particular book, it should be deleted. (b) In the case of works requiring extensive revisions, you should be entitled to a new advance or fee to reflect the extra work that you will be doing. (c) It is not unusual (or unreasonable) for there to be provision that royalties on the revised edition will revert to their lowest level if changes necessitate the resetting of, for example, more than 20% of the text). (d) It is also not unusual or unreasonable for there to be a clause to the effect that if you are unable or unwilling to revise the Work yourself, the Publishers may procure some other person to do so and divide the royalties on that new edition between you and the reviser as seems appropriate. Some contracts add that if you do not participate in revisions, and the book has gone through two or three new editions since you were last directly involved, you will receive no royalties on later editions. This may be the only feasible way of ensuring that writers who are revising the work can get a fair royalty. (e) However, if you created the first edition of a major work, it may be appropriate for you to insist on being paid a modest ‘concept’ royalty on future editions even where you are no longer directly involved (such payments also benefitting your estate until 70 years from the end of the year of your death). It may also be fitting to insist on a guarantee that you will be credited as the originating author on all future editions. And you might want some say over who is chosen to replace you. (f ) For regular updating of an accompanying website or similar, an annual or monthly fee might be the most appropriate form of remuneration. (g) Where appropriate, you might also want to have first refusal to adapt the material for new media, or for a different market (again, subject if reasonable, to the payment of an agreed advance). (h) If you have created a course or series, it is important to clarify with the publishers at the outset who owns what rights in the development of that course or series, including the series title; and whether you have first refusal (or, where appropriate, the sole right) to write other components, levels, derivatives, or further works in the series or featuring the same characters. 21 Competing Works (a) It is only reasonable that the publishers should be able to prevent non-fiction authors from publishing with another firm a book which is virtually an abridged or expanded version of the work covered by the contract. The difficulty is to phrase any such clause so as to leave the author free to publish other books on his/her particular subject. It is sometimes possible to get such clauses deleted (which we recommend – in our view, publishers are adequately protected by their ‘exclusive licence’). Otherwise, it may be wise to exchange letters setting out the interpretation of any clause relating to competing works. Example: The Author shall not, within [three] years from first publication, prepare any work which may be an expansion or an abridgement or of a nature similar to the Work published in such a similar style and at such a similar price as to be likely to affect prejudicially the sales of the Work. (b) In addition to a time limit, try for a royalty income threshold below which the restriction is inoperative. Particularly important now works can remain available but selling next to nothing, at no cost to the publisher, in ebook form or as print-on-demand. (c) Ideally try to limit the clause even further, e.g. including some or all of the following: the intended principal target markets when the work was conceived; the work’s particular features/unique selling points (e.g. age group, or supplementary skills); and the nature of the author’s role (e.g. main author, consultant, series editor, etc). (d) If you are being paid a one-off fee, the contract should have no competing works restriction. Failing that, any restriction should be for a period of no more than, say, 18 months from signature of the contract. 22 Termination Every publishing contract should have a clause setting out the circumstances in which it is to terminate:. (a) Breach of contract and liquidation The contract should include wording along the following lines: If the Publishers fail to fulfill or comply with any of the provisions of the contract within one month after notification from the Author of such failure, or if they go into liquidation or have a Receiver, Administrative Receiver or Administrator appointed, the contract shall automatically terminate and all rights shall revert to the Author. Termination shall be without prejudice to any claim which the Author may have for monies due, or damages, or otherwise. New sub-licences may not be granted by the Publishers after the Author has served notice of termination, without the Author’s agreement. (b) The work becoming unavailable or sales negligible Print-on-demand (POD) and ebooks enable a work to remain available long after demand has ceased – with no active input from the publisher by way of stock-holding, marketing, or actively seeking to license subsidiary rights. Traditional out of print clauses are ever less relevant and unworkable – for example, giving nine months’ notice to reprint a POD work (which is what many contracts now state) is patently nonsense. In practice, you may well be content (indeed pleased) that your work remains available – and bear in mind how hard it might be to find a new publisher to take it on at a late stage in its life. Then again, you may no longer want to be associated with your original publisher; you may want to make revisions in which the publisher does not wish to invest; a new publisher may be keen to relaunch your backlist; you may want to publish yourself; or you may simply want to regain control of your material as a matter of good housekeeping. At the outset, publishers will be concerned to have a fair chance fully to exploit the work (in its own editions and by licensing subsidiary rights), and to sell sufficient copies to recoup the advance. On the other hand, most titles are – understandably – given no more than a few months in the limelight of publishers’ and booksellers’ frontlists before being consigned to the backlist (where copies sink or swim unaided by much direct support from the publisher). Where a publisher has paid an advance in excess of realistic sales expectations for a book (e.g. to outbid other interested publishers, or on a speculative hunch), such expenditure is made at the publisher’s informed, commercial risk. Any suggestion (so far unknown in the UK but occasionally seen in US contracts) that any part of the advance be refunded as a condition of termination should be flatly rejected. The Society has spent considerable time trying to come up with termination provisions which properly allow an author to regain dormant rights on request (not allowing a publisher, in effect, to play dog-in-the-manger), while recognising the reasonable concerns of publishers. The following may seem cumbersome, and is by no means perfect, but is the best we have so far devised as being a reasonable compromise between authors and publishers: (i): If, at any time, the Work becomes unavailable in volume form [i.e. as a printed book, rather than e.g. as an ebook], the Author may terminate unless either the Work is reprinted in a print-run of no less than [500 copies] within nine months from written notice by the Author, or the Work is made available as POD within one month from written notice by the Author. (ii): Should the work be available only as POD and/or as an ebook, and sales have been below [200 copies] in the preceding 12-month period, provided the advance has been earned out, or more than three years have passed since first publication (whichever is the sooner), the Author may terminate on one month’s notice. Termination is without prejudice to any sub-licences properly granted by the publishers during the currency of the agreement; and without prejudice to any claim which the Author may have for monies due, or damages, or otherwise. New sub-licences will not be granted by the Publishers after the Author has served notice of termination, without the Author’s agreement. (c) Reference works and textbooks There should be breach of contract and liquidation provisions, as at point 22(a). If you are assigning copyright, there should also be a statement that copyright reverts to you in the event of termination (it will not happen automatically). If you are writing/contributing to a multi-author book, or a textbook or reference work which will in future go into new editions not revised by you, publishers may be unwilling to include ‘out of print’ termination provisions. In such cases the crucial thing is to ensure that any ‘competing works’ restriction will cease to apply after a stated time, or after your income from the work falls below a specified sum. 23 Option on the Next Work Some contracts contain an option clause, giving the publisher first refusal on your next book(s). Agree, if at all, only after careful consideration. You may find yourself under a moral and possibly a legal obligation which you subsequently regret. If you give your publishers an option, limit it to first refusal on one book on terms to be agreed (not ‘on the same terms’ or including the ‘same rights and territories’), the publishers being required to come to a decision within, say, six weeks of delivery of the complete work or of a synopsis and specimen chapter. Specify the type of work covered, e.g. your next work of adult non-fiction, or the next book featuring the same characters. Exclude works you may be invited to write for a series published by another firm, and ideally specify a time-limit after which any option lapses. 24 Assignment of Contract It is advisable for a clause to be included stating that the publishers may not assign the rights granted to them in the contract or the benefit of the contract without the author’s written consent. 25 Arbitration Clauses about arbitration should be deleted. It is now generally accepted that arbitration tends to be slower, more expensive, than litigation – and it is often an inappropriate way of trying to resolve disputes. (We should stress that most problems can be resolved, sometimes with the intervention of the Society if appropriate, without recourse to either arbitration or litigation.) If the publishers insist on some form of arbitration clause, it should relate only to disputes about the interpretation of the contract and the arbitrating body should be the Informal Disputes Settlement Scheme run by the Publishers Association. © The Society of Authors, 2009 £10 per copy post free. Free to Members. The Society of Authors, 84 Drayton Gardens, London SW10 9SB