The last few sections described the various contract clauses you might encounter and what to do about them. Here is a summary of the major clauses to ask the publisher to delete or change (or ask your agent to make the request on your behalf, if your agent doesn’t already plan to suggest these changes). In many cases, publishers will readily make these changes; in some cases, they will offer a compromise; in other cases, they will say they can’t make the change.
Editors commonly have a general idea of what changes they can make, and they might be able to agree to some change on the spot. In other cases, they will have to ask the senior, managing, or executive editor above them or the publisher. Sometimes they will simply say no, because they know they can’t do something. Then, it’s up to you to decide if you can live with the changes the publisher agrees to make.
In general, if you see a lot of changes you would like to request, ask for the changes or deletions which are most important to you, and don’t ask for minor changes, so you don’t come across as difficult to work with. Following are some of the major contract clauses to ask to include, delete or change if they appear or don’t appear in a contract offered to you.
- Ask that the copyright be registered in your name (or your company name), whatever the arrangements for registering or paying for the copyright fee. (It’s only $35 to $55 and takes about 20 minutes to register online, so whoever files the registration shouldn’t be a big deal. Many publishers register the copyright in the author’s name as a matter of course, but to be sure it gets filed, you can check the record of copyright filings, or do it yourself.
- Indicate the approximate length and delivery date of the manuscript, based on what is realistic for you to do. Ideally, ask to submit the manuscript by email only, but agree to provide one or two hard copies if requested.
- Ask that you can keep any advance paid to you if the publisher decides not to publish the manuscript for any reason after you deliver it, or alternatively that you only have to return the money if you find another publisher. (However, if you don’t deliver the manuscript, then you do have an obligation to return the advance).
- Ask to exclude from the grant of rights the subsidiary rights which are unrelated to the actual publication of your manuscript, if you are able to exploit these rights yourself. If you aren’t able to do so, leave them with the publisher, or ask for a non-exclusive arrangement whereby you can initiate agreements as well as the publisher. If so, see if you can negotiate a higher percentage of these subsidiary rights paid to you (such as 75-25 or 60-40 to you and the publisher respectively).
In particular, some of the rights to exclude if the publisher is agreeable are:
- foreign language rights
- film, TV, and dramatization rights
- commercial and merchandising rights
- Limit the non-compete clause by asking that the contract specify exactly what types of subjects are considered to be competing, and keep this list as narrow as possible, such as specifying that you cannot write a book for another publisher on problems with drugs and addiction rather than writing books on mental health issues or self-help topics generally.
- Ask to delete any first option on future books or limit any first option to books on a limited selection of topics related to your book. If the publisher does have the right to look at a future manuscript as a first option, limit the length of time for the publisher to decide as much as possible – ideally 30 days or 60 maximum. If you plan to write or pitch a number of other books on various topics, consider this first option requirement a deal breaker, because it will interfere with your ability to find another publisher on future books.
- If the publisher indicates that paying for an index is the author’s responsibility, see if you can change this arrangement, so that the index is unnecessary or the publisher pays for it. If you still have to pay, see if you can reduce the price by getting your own quotes for someone to do the index to the publishers specs or by creating the word list for the indexer, so your cost of indexing will be less.
- While the publisher normally has the right to decide on the title and cover design, ask if you can submit your own suggestions, subject to the publisher’s approval.
- If the royalty rate is lower than the usual standards in the industry, see if you can increase it to common standards, such as 10% of net on a paperback book with increases to 12-15% of net after 5000 in sales. Likewise, if the publisher is only a 25% royalty rate on electronic sales, try to raise it to 40%.
- In the case of subsidiary rights that remain with the publisher, if you are in a position to locate potential buyers, try to work out an arrangement where you and the publisher can both pitch these rights. Also, seek an increase in the percentage to you if you initiate the sale, such 75-25 or 60-40 in your favor.
- Try to increase the amount of the advance, though suggst a reasonable increase based on the original offer. For example, if a publisher is offering $10,000, ask to increase it to $15,000; if the offer is for $5000, ask for an increase to $7000 or $8000; if the offer is for $2000, ask to increase it to $3000; if the publisher is offering no advance, try for a nominal advance to show the publisher is at least serious, such as $500 or $1000.
- While a common arrangement is getting half up front, ask if you can get the full advance if you have already completed the book. If the publisher is proposing to pay the second half of the advance on publication, ask if you can get this payment on acceptance.
- If there is a long delay in receiving the advance payment for signing, acceptance, or publication, ask if you can get the time for the payment reduced, say to 10 to 30 days instead of 45 to 60 days.
- While the advance payment is all you are likely to see unless the book does very well, see if you can get any future statements or payments in a shorter amount of time if there is several months delay between the close of a statement period and the issuing of a royalty check. For example, if there is a delay of several months, see if you can get the check issued in 45-60 days.
- Try to get more author’s copies sent to you, since you can use them to help with PR (and you can also sell them, though don’t use that as a reason to get more free books). For example, if you are only going to get 2 to 5 books, ask for 10 copies. Or if you are scheduled to get 10 copies, ask for 20 to 25 copies. But only ask if you are realistically going to do something with these books.
- If there is an option clause on future books, ask the publisher to delete this, or if the publisher insists on including one, limit it to the topic of the book the publisher is publishing (much like in limiting the non-compete clause). Also, limit the time the publisher has to consider the option clause, ideally to 30 days or 60 at most
- For the reversion of rights clause, if there is no specific indication of the number of sales to trigger this reversion, ask that the publisher put in a certain number of sales per year after an initial publication period (such as after 2 or 3 years). For example, the floor might be sales of less than 100 copies, or even 25 or 50 copies, but include something. Otherwise the publisher could technically have the rights forever, because in today’s market, something may continue to be in print indefinitely, due to the electronic books marketplace, where files of books can live on forever. Whatever the arrangements, the publisher should be allowed to sell off any stock it still has for a reasonable period, say 2 years, and you should get paid the normal royalty on those sales based on the rate already agreed upon for royalties.
- Make sure that you get the rights back if a publisher goes bankrupt or out of business rather than having the right to buy back the rights and any remaining copies at a value to be determined, which could end up be too high a price for being able to get your rights back and move on.
- If the publisher has a pay-to-play clause, where you are expected to commit to buy a certain number of books, ask to delete this clause. As long as there is some number of books to buy, you are essentially ending up in a self-publishing deal under the color of the publisher’s brand. But unless you have a way to sell these books through workshops, seminars, or online marketing, you are ending up with a lot of books you can’t do anything with, and even if any advance royalty payment is deducted, your commitment to purchase books could end up costing you $10,000, $25,000, $50,000 or more to buy all of the books.
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