Other common contract clauses deal with warranties, indemnity, and the grant of rights, many of which are basic boilerplate. It is best to just leave most of them as is, rather than trying to nitpick small points, which could lead a publisher to think of you as a difficult writer, which would kill the deal. Just ask for changes in some of the more important terms, and you are likely to at least get some of them, or all of them in many cases. Here are details about dealing with warranties, indemnities, and the grant of rights.
–Warranties and Indemnity. This is a clause where you warrant that you (and any co-writers) are the sole author, originator, or owner of all of the copyrightable material in the work or that you have gotten the written permission for any material from someone else. You also agree that, if requested, you will show this written permission statement or letter to the publisher. Or alternatively, you agree that the publisher, if it wishes, can secure these rights at its own expense and charge those expenses against any sums due to you, including unpaid advances, or the publisher may require you to pay these fees, or it can reject the manuscript for a lack of permissions.
However, often there is no need for any permissions if you are relating your own experiences or are citing sources, such as articles, books, or websites, because of the fair use doctrine, whereby you can generally cite up to about 250 words from any source without needing to get permission.
You also warrant that you have the full power to enter into the agreement and there is nothing in the manuscript that is libelous or an invasion of privacy, and you further agree that any instruction or advice will not result in an injury to anyone. Or as necessary, you agree to include the appropriate warnings and safety precautions.
In addition, you agree to indemnify and hold the publisher harmless from any legal claims, suits, damages and related legal costs due to a breach of these warranties. Also, you agree that the publisher can remove or clarify any passages that its legal counsel deems actionable. Moreover, the publisher can extend your warranties to third parties, including the licensees of subsidiary rights, and these warranties and indemnities will survive even if the agreement is terminated. In some cases, this section indicates that the publisher will similarly indemnify you from any claims.
In general, consider this clause as boilerplate, and any legal action based on such causes outlined in this section is unlikely in the case of most books. So I generally accept this clause as is.
– Grant of Rights. In this section, you grant the publisher the right to produce, publish, license and sell the work, or any part of it, in various forms. Typically, this grant will include electronic rights, as well as audio rights, dramatization rights, film rights, TV rights, and commercial and merchandizing rights, usually on a sole and exclusive basis. In some contracts, these different rights are listed separately. This is where you might want to be more specific in what rights you are granting, based on the size and reach of the publisher, and what you can realistically do yourself in terms of marketing these other rights to potential buyers, such as film and TV producers.
In the royalties section of the contract, you might work out different percentage arrangements for the different rights, based on whether you make the connections and negotiations or the publisher does, though the basic split is 50-50 for the sale of subrights.
For example, if you are working with a small publisher and hope to reach out to the foreign markets yourself – or if you have a foreign agent you work with, you might only assign the publisher the English language rights, and you can even specify that these rights are only for certain countries, such as the UK, Canada, Australia, and New Zealand. Commonly, you need to give the publisher the electronic and print rights (although there are some companies that only want the e-book rights these days), but you can often reserve the audio rights, dramatization rights, film rights, TV rights, and commercial and merchandizing rights. However, in deciding what rights to seek for yourself, consider whether you are in a position to contact people in the film, TV, or other industries yourself.
If not, it may be better to leave these rights with the publisher. And often, a film or TV project based on the material in your book may turn out to be very different, so unless the book has sold well and you want to use the title, it may not be necessary to have the subrights to produce this new project.
This grant of rights section will also normally include a non-compete clause, or sometimes that clause is separated out as a separate section. However it is stated, much like in the non-compete clause, you agree not to create for anyone other than the publisher a work that is similar, covers essentially the same subject matter, or is likely to compete for sales with this work. Asking for these restrictions is certainly a reasonable request, if the publisher is investing in publishing and promoting your book. However, it is best to specify more clearly exactly what it means to say something is substantially similar, covers essentially the same subject matter or is likely to compete with the sales of this work.
For example, spell out what the book is about, so you limit the claims of what’s similar, the same subject matter, or what’s directly competitive. To illustrate, if your book is about caring for dogs, state this, so you are free to write books about other pets or animals generally or even write a humor book with a cartoon dog character. Or say you are writing a serious book about the criminal justice or political system. You might clarify what your content covers, so you might be free to do a true crime book or memoir of a criminal or politician. In other words, consider what you want to write about in the future, so you can specify in this clause the particular nature of your book, so any restrictions only applies to that.
In some cases, this section may also specify that you have to give the publisher a first option on any related books, or a first option generally. In this case, where you are writing about a related topic, you might agree to submit the book, with the understanding that within 30 days, the publisher will either publish on the same terms as the first book, but then you have the right to pitch the book elsewhere. Another variation on this first option clause is that the publisher has the right to match any bona fide offer which you get from another publisher.
It seems reasonable to include such an option when the book is related or a follow-up book to the one the publisher is publishing. But ideally, request that any first option clause be deleted from the contract, because it can be a hassle to have to submit books to the publisher on other subjects, particularly if these are books that wouldn’t be of interest to the publisher. Moreover, if your book is being published by a small or medium sized publisher, you want to be able to find a larger publisher for subsequent books.
In any case, publishers will normally agree to delete any first option clause, and if not, this could be a deal breaker. For example, I publish books on a wide variety of topics, and I would not want to limit myself with a right of first refusal or option clause, and as long as the book is not directly competitive with the book they are publishing, I have found that publishers readily agree to delete the clause.
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