Radio Interview with the Al Cole on the People of Distinction Show November 17, 2020
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.
In particular, some of the rights to exclude if the publisher is agreeable are:
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Some additional clauses in contracts deal with publicity, book excerpts, pay to play, and co-author or co-publisher deals. Here’s what to expect and how to deal with them
Often specific details about publicity aren’t included in the contract, but the general idea is that the author agrees to help support the book through PR efforts. In turn it is to the advantage of the author to do as much PR as possible, and often authors hire their own PR people to supplement whatever the publisher does, which often isn’t very much beyond sending out review copies for a book by a non-celebrity author.
Whether the contract calls for it or not, an author is normally expected to provide a photograph and complete an Author’s Questionnaire, which includes questions about personal and social media contacts and suggestions for sources of contacts (such as the members or leaders of organizations in the subject area of the book). In addition, you will usually be expected to use your best efforts to promote your book through the social media and participate in marketing the book.
Also, the publisher may ask you to be available for publicity purposes, such as being on call for 10 days starting on the book’s publication date or appearing on any and all radio, TV and other publicity venues the publisher feels will increase the book’s sales. The contract may also state that you shouldn’t engage in any actions that will detract from sales, such as getting caught engaging in illegal or unethical activities, which you don’t want to do anyway, since this may subject you to shaming on the social media or arrest. So if this kind of language is in your contract, there’s nothing to object to, since you want the same results – more sales.
The publisher may also ask for the right to publish without any payment a short excerpt from the book (say up to 2000 words) to help promote it, and you will normally have this right, too. Many contracts won’t have these specifics, but if it does, it’s fine, since such efforts will help the book.
In some cases, generally for non-fiction books, the publisher may ask for a non-exclusive right to use brief excerpts from your book in a compilation it creates or hires a writer to compile and edit, or which is written for it by another author. Then, the publisher will typically indicate a price you will be paid for an excerpt, such as for $100 for up to 15 pages, $200 for up to 30 pages, and $300 for up to 45 pages, and you will get all of this money, without a percentage to the publisher. Since this payment for excerpts is basically found money, should the opportunity arise, such an agreement is fine.
If you are writing the book with another person who is named as a co-author, normally all of the authors will be asked to sign the agreement. This clause simply restates the obvious, that it is assumed that all of the authors equally share in the rights and responsibilities, although if the contributions and royalty shares in the book aren’t equal, this should be spelled out, such as indicating that a certain percentage goes to each author (or if you have an agent, the agent will commonly receive the payments and pay the amount due less the agent’s commission to each author, though sometimes you can arrange to have the payments sent directly from the publisher to you, any co-authors, and the agent – which is ideal, since you get your money right away.)
In the event you are have set up a corporation and the contract is with the corporation, you normally have to agree that you will be personally responsible for any obligations of the author.
Sometimes the agreement will specify how the author’s credits should be listed where there are two or more authors, such as stating they will be credited alphabetically. But if there is one lead author, that name should go first; if more than two, the other authors can be listed alphabetically or in an order based on the relative contributions of each author to the book. If this clause is included, revise it to indicate the way in which you are apportioning credits or leave it open, so you can later work out the specifics with your editor. If there is only one author, the clause won’t apply.
Still another clause in some contracts will indicate that you agree that the publisher publish this book under an imprint or with another publisher or entity, if the publisher wishes, but the publisher will remain responsible to fulfill all of the terms and conditions described in the contract.
So far only a few traditional publishers have a clause which commits you to buy a certain number of books, but this clause can be a problem if the purchase commitment far outweighs the amount you get up front as a royalty. Commonly, such a requirement is only imposed on new writers or writers who have had a small number of sales on past books with that publisher or with other publishers, based on the rationale that the publisher wants to limit its risk if the book doesn’t sell as well as expected.
Another reason is that this requirement might motivate the author to do more promotion and publicity to sell more books or well more books through speaking engagements, workshops, and seminars. The publisher may also describe this as a “win-win arrangement for both the writer and publisher,” as one publisher’ rep told me, since it helps to motivate the author to more actively market and promote his own books.
But whatever the publisher’s rationale, this is a bad deal for a writer, unless you are already doing a number of programs where you are fairly confident you can purchase and sell the number of books required. For example one writer who made most of his money speaking, normally sold at least 2000 books a year, so this purchase requirement was fine, though the publisher didn’t do anything else to promote his books beyond sending out some review copies. But if you are not in a position to sell all of these books, you can end up with hundreds or thousands of books you can’t sell but are obligated to buy.
Thus, if there is such a clause, do the math to determine exactly how much the publisher expects you to buy at what price. Then, you can deduct that from any future royalty payments to determine the balance payable to you, or more commonly, the balance which you now owe to the publisher.
For example, a typical pay-to-play clause may say something like: “The author agrees to commit to purchase at least 2500 books at the wholesale price of 50% off.” The specific number may vary, but generally ranges from 1000 to 10,000 books. In some cases, you may be able to get the clause eliminated, as I was with one publisher that initially wanted a commitment of 1000 books.
In other cases, you may be able to get it reduced, such as when one publisher reduced the number required from 3000 to 2000 books but wouldn’t go any lower, while offering me an advance of $5000. Even so, since the books were priced at $29.95 retail and I could buy them at 50%, that’s $15 a book or $30,000 for 2000 books, or $25,000 after deducting the $5000 royalty. So no deal.
In effect, such an arrangement is akin to a self-published book, where a traditional publisher is trading on its name to get writers to agree to this expensive deal, where you could well end up with thousands of books in your basement or garage. But if you decide to self-publish, there are much less expensive paths to that end – from free to about $1000-1500 for design and set up; and you buy as many books as you want. There is no large upfront commitment. Thus, if you can’t get this clause eliminated or get the number of books reduced to the number you might realistically sell or give away for promotions, consider this clause a deal-breaker and walk away.
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If the book does well, your publisher may want revisions or updates to keep the book current. Also, the publisher may hope for future books from you. On the other hand, if the work doesn’t do well or the publisher has financial difficulties and declares bankruptcy, you may get your rights back under certain circumstances. These contract provisions deal with these topics, and this is where you should ask for changes if you are dissatisfied with these clauses, and publishers may be quite open to these changes if requested.
An Option for Future Books
Sometimes publishers will include an option clause, which provides for the right of refusal on your next book or next two books at the same terms as your present contract, and commonly the publisher will get 60 to 90 days to exercise this option. This clause can be fine if you really like dealing with this publisher, like your current agreement, and don’t want to go anywhere else. But however you feel about your publisher and current arrangements, this option can be a trap, so ideally, get this clause removed, and you can always continue to work with this publisher on future books by mutual agreement. For some writers who write many books on different topics, such as myself, this option would be a deal breaker, because it can conflict with making deals with other publishers.
It is reasonable that a future book you write not conflict with your book which the publisher is currently publishing, but this situation is already covered under the non-compete clause, so there is no need to tie up your next books under this agreement, and I have found that most publishers will willingly remove it. After all, they want a harmonious future arrangement, where you mutually agree for them to publish your next book. Also, it is possible for a dissatisfied writer to defeat such a clause by submitting one or two terrible proposals or book manuscript that they have no intention of writing, whereupon the non-compete clause will expire anyway.
Alternatively, if the publisher does want a future books option clause, it is easy to make this restrictive, as in making the non-compete clause specific to the type of book you are already publishing with that publisher. For example, if you have a self-help book on overcoming alcohol abuse and addictions, you could specify that the future option will only apply to books dealing with alcohol and addiction problems.
However, the simplest arrangement is to remove the clause, which a publisher might do by taking it out of the contract and renumbering the following clauses, or by writing the number and name of this clause (i.e.: Option Clause) and stating that it has been “Removed by agreement.”
Revised or Updated Editions
This clause describes what you can do if the publisher wants an update or rewrite after the publication of the initial edition, say after two or three years. Typically, this is an offer for you to update, edit, or revise the work for an additional payment (such as $500 or $1000), which will be considered an additional advance against future royalties. However, you can choose not to do any further work on the book, and in this case the publisher has to right to hire someone else to make the change or can arrange for someone to do the work in house. In either case, the publisher can charge the reasonable cost or value of that work against future royalties. Presumably, that should be the same amount as the publisher is offering you, so you might get that amoun spelled out in the agreement, so the publisher can’t pay someone else much more than you would be paid and charge that against your future royalties.
In some cases, the publisher may bring in another author to share the author’s billing with you on a future edition, in which case, that person will not only get an up-front payment but will receive a share of the royalties on future publications of the book. The publisher might even revise the credited authors on the cover to reflect this, such as happened with one of my books on a legal topic: collecting on a judgment. While I wrote the first book and the publisher revised the book in-house for the second edition without any charge to me, for the third edition, the publisher brought in a lawyer to share the credits and royalties with me, resulting in 25% of the payments on the third edition going to him and 75% to me. Eventually, after another round of revisions, the publisher gave me a payment to buy me out from future editions completely, since I was no longer contributing anything to these revisions, nor did I want to.
In any case, if you want to remain the sole author and retain control of future changes, by all means agree to do the revisions or updates. Possible, though, you might be able to negotiate a higher advance than the publisher originally offers – or make the amount contingent on the number of pages that require revisions or the number of words you will be changing or adding to the text.
Getting Back Your Rights
This reversion of rights clause spells out when your book is deemed out of print, whereupon you can request back the rights. This return of rights clause can be written in a number of ways, and you should make sure it realistically reflects the situation where your book is not selling a significant number of copies in any format after a certain time period. It is important to seek some floor for this determination, because otherwise, your book could conceivably never be considered out of print, because of the potential for e-book sales.
Many clauses about reverting rights do not include a number, but you should seek to add one indicating the minimum number of sales each year after a certain period of time, commonly two to three years after the book has been published. For example, you might ask that the book be deemed out-of-print where it has sold less than 100 copies a year – or even less than 25 or 50 copies. Just put in some small number, so you have some basis for claiming the book is now out-of-print to enable you to request a reversion of rights.
Normally, this reversion clause will require you to send a written request to the publisher asking for the rights back if the publisher fails to reprint, repackage, or publish a new edition; license the edition to another publisher; or advise you of its plan to do so. Under any of these circumstances, you can send the publisher a termination letter, asking that the rights now return to you. After receiving this letter, the publisher will typically have an additional time period, such as two weeks to consider your request and decide whether to republish the original book or an update or not. If not, the rights revert to you.
Additionally, this clause will often allow a publisher to continue to resell any books it has already printed for a certain period of time after termination (such as one or two years), with the understanding that it will pay any royalties still due under the original agreement. In some cases, even if it is not in the contract, if you get a series of statements showing a lack of a sales for a year or so, you can simply write to the publisher to request the return of your rights, and many publishers will agree, since they don’t expect the sales to improve and are already planning to retire the book.
Aside from getting a floor to define when a book can be considered out of print after a certain number of years of publication, the rest of the reversion clause is usually fine. Commonly, a publisher will send you a formal letter advising you that the rights are returned to you, with the provision that any agreements the publisher has already entered into with third parties (such as translation rights to a publisher in another country) will remain in force, along with the right to continue to sell any remaining copies for a specified period after termination. Once you get the publisher’s agreement to revert the rights to you, if it’s not already in a formal letter, such as if the publisher sends you an email, ask the publisher for this letter, since you can then use it to show other publishers who may be interested in republishing your book now that you have the full rights to it again.
While this isn’t necessary to include in the contract, sometimes a publisher will decide to remainder a book and get rid of all its stock, and will normally give the author the first option to buy any number of the remaining books. This is another condition where the book is considered out of print, so once the publisher announces this this sale to sell off its stock, whether to you or another party, you will get the rights back. In this case, you don’t need to send a request for the rights back or a termination letter, because the remainder sale means the book is now out of print. Just keep the letter to show other publishers, that the book is out of print and you have the rights back.
Finally, if the publisher goes bankrupt or goes out of business, this clause will state that you either get back the rights or are offered the right to buy back the rights and any remaining copies, whether bound or unbound, at their fair market value, as determined by an agreement between the publisher and author. Should you decide not to buy the books back, the publisher can sell its stock for the best price it can without having to provide you with an accounting or any payment. Preferably, make it clear in the contract that you get back the rights automatically in the event of a bankruptcy or if the publisher ceases operations rather than having to buy back your rights or set a value on the cost of these books, which should at most be a small percentage of the regular retail price.
Assignment of Rights and Beneficiaries
Just as the contract will state what might happen if the publisher goes out of business or wants to assign its rights to another entity, so it will provide for what happens in the event of your own death or if you want to assign your rights to someone else. Based on this clause, you have the right to assign any money due under the agreement, while the publisher can assign its rights and obligations to another party.
For example, if you owe someone money or want to give a friend, relative, or spouse a gift, you could assign your right in the manuscript to them. By the same token, a publisher could turn over its rights in your book to another publisher, such as in the event of an acquisition or sale of the business. Additionally, in the event of the author’s death, the publisher can agree to pay any future royalties to a beneficiary or the executor of the author’s estate, as long as this party sends the publisher the appropriate written notice and documentation to receive these payments.
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Other contract clauses deal with how you get paid, the number of author’s copies you will receive, and how you can purchase copies. There are a few changes you might request here in the number of copies you receive and purchase arrangements, but generally, the payment arrangements are based on the publisher’s accounting system, so there is not much if anything you can negotiate.
Besides the specified advance payments described in the section on royalties and advances, the publisher will pay future payments after any advances are deducted based on the publisher’s accounting and payment cycle. Often this is a biannual system, where you get a statement and accounting every six months, though some publishers only pay annually, while some pay on a quarterly basis, and occasionally some pay every month, though these more frequent payments are more common with ebook-only publishers, who have online sales and make deposits directly into your bank.
If you are dealing with the publisher directly, the payments will be paid directly to you or split between you and any co-authors, with the payments made to the lead author or split between two or more authors, based on how you are splitting the royalties based on different contributions to the book. If you have an agent, commonly the payment will go directly to the agent, who will pay you the amount due less the agent’s commission within a certain period of time, such as within 10, 15, or 30 days of receipt of these funds. In the rare case where there are separate agents for different authors, the agents will work out which agents gets what.
Commonly, there is a delay of 45 days to a few months between the time the accounting period ends and when a check will be issued to you. For example, when statements are computed twice a year, the typical six month period runs from January 1 to June 30 and from July 1 to December 31. If a publisher pays within 45 days, your check for the January to June period will go out on August 15; for July to December 31 on February 15. In some cases, the delay will be much longer, such as with one of my publishers who sends out a check on or before June 15 for the July to December period; on or before December 15 for the January to June period.
The accounting you receive will include the net sales for that period, as well as the sale of any rights, along with the royalty rate for each type of sales, the reasonable reserve deducted for the returns, and the amount due. Commonly, if the amount due falls below a certain level – typically under $25 or $50 — that amount will be held over for the next pay period. Should you get an overpayment as a result of copies sold but subsequently returned, this overpayment may be deducted from this work or other works that the publisher publishers. In the event you don’t get your statements and checks in a timely manner, it is your obligation to write to the publisher within a certain period of time, say 12 months, to indicate that you didn’t receive the statement, that it was incorrect, or that you didn’t get the royalty payment due. If you don’t notify the publisher within this period, you waive any right to receive the corrected statement or any royalties not received for this period.
If there is a long delay between the end of the accounting period and the payment due, you might ask for a shorter time period, though the publisher may not be able to make any changes due to the way their accounting and accounts payable system is set up. But often, this future payments clause may prove to be moot, because many books do not earn out more than their advance, so there will not be any payments due for a long long time, if ever.
If you do have more than one book with a publisher, an important agreement to seek is that the sales of the books will not be combined in figuring royalties. In other words, if one book loses money, while another book does well and earns more than it’s advance, you don’t want the losses from one book to be applied against the book that is doing well. In my experience, publishers have agreed to this, though not all will do so.
This section of the contract will spell out the number of free copies that will be sent to you. Commonly, you will receive five copies, though some publishers only send two, while others may provide ten. Occasionally publishers may even send you 20 to 25 copies if you show how you plan to use those books for promotional purposes, though you have no obligation on what you do with these books, so if the planned promotions don’t work out, those are your books to keep. In some cases, authors sell their free books, before purchasing more books.
This section will also indicate how you can buy additional books at a discount, typically 40%-50% off retail, sometimes more for larger quantities, such as 55% or 60% off if you buy a carton of books or 100 books or more. If you purchase even larger quantities, you may be able to negotiate a better discount of 65-70%. Generally, you have to pay for the shipping and handling, and pay for these purchases in advance. Normally, these books are sold to you at the author’s discount and no royalty is paid. However, sometimes you can negotiate an arrangement where you are paid a royalty on any of your purchase. Another possibility which doesn’t need to be in the contract, though sometimes it can be added if you have a retail seller’s license for selling anything, is that you can buy your books at the regular retailer discount with the royalty paid on these. In this case, you buy through your company with the publisher’s sales department and get a discount based on the number of books you buy. If you are given this option, figure out which arrangement will give you more money – buying at an author’s discount with no royalty or a royalty, or buying as a retailer.
In any case, whatever your arrangement for author’s copies, the publisher wants to encourage you to sell copies at the work through a number of methods, which include at public speaking engagements, on your website, by direct mail, through newsletters, or as a premium to local retailers. However, you are normally restricted from selling to bookstores, which the publisher reserves for its own sales.
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