This article continues the discussion begun in
Author-Publisher Contract Tips
by Barbara Brabec
THIS ARTICLE DOES NOT CONSTITUTE "LEGAL ADVICE," but rather reflects what I've learned from years of working with several trade book publishers and observing how my literary agent negotiated each of my book contracts to get special clauses that offered me maximum financial benefits and legal protection. If you have an agent, he or she should take care of these details for you, but if you are negotiating your own contract, you should press for inclusion of the following clauses (which will be written in "legalese"), and then let a literary attorney check the publisher's contract before you sign it. (A "regular attorney" unfamiliar with the book publishing industry is not recommended for this kind of contract.)
IMPORTANT: Publishers may tell you that you have received the "standard author contract," but only nervous beginners will accept what's offered without asking for beneficial changes. In particular, try to get the following three clauses into your book contract:
1. DISCOUNT ON AUTHOR COPIES. You should have the right to sell your book at workshops or conferences, by mail to your own list of readers, or on your Web site if you choose. Try to get a 60 percent discount on case lots, but be happy if you can get at least 50 percent. Some trade publishers won't give more than 40 percent off the book's retail price. (NOTE: Some of the "electronic publishers" who are courting authors on the Web offer as little as 20 percent, which is totally unacceptable to any author who is serious about selling his or her own books. But these publishers and their publishing contracts are another whole topic. You'll find some general guidelines in my article, "Your Self-Publishing Options With Today's eBook and POD Publishers."
Since some publishers seem to fear sales competition from authors, getting a good discount on books you want to buy for resale may be difficult. If you plan to aggressively market and sell your book by mail or in workshops or other speaking engagements, you must emphasize this point during your contract negotiations. Explain that your promotions for the book will automatically generate publicity that will increase sales at the bookstore level. From years of experience, I can confirm the truth of this statement. In the many years that I sold my books by mail and in my workshops, I never competed with my publishers for bookstore or library sales, and in fact always encouraged sales at the bookstore level by adding a line to all my news releases that said, "Available in bookstores or by mail from the author for . . . ."
2. OUT-OF-PRINT CLAUSE. It's painful to think about, but someday the publisher will decide to let your book go out of print. (The less you promote your own book, the sooner this will happen.) Prepare for that day by negotiating a clause in your author contract that enables you to acquire the rights to your book as soon as possible so you can offer it to another publisher or take it to press yourself after you've updated it. Ask that the rights be given to you immediately, but expect that the publisher will normally want to hold them for three to six months or more after the book is officially declared out of print.
This out-of-print clause is getting dicey for authors now that so many publishers are trying to control the electronic rights so they can publish eBooks (and take up to 90 percent of the profits for them). The trouble is that while the print version of a book may be declared "out of print" and no longer be offered for sale, the publisher may keep selling the eBook forever, and as long as it's for sale, the book will never be declared "out of print" from the publisher's standpoint, and the author will not be able to do a new print version of the book with another publisher.
3. ROYALTIES. Royalties vary from publisher to publisher but generally start at five percent on paperback editions and ten percent on hardcover editions. Royalties higher than a publisher's norm must be negotiated and will be difficult to obtain without the help of an agent. Royalties are generally paid twice a year in one of two ways: a percentage on either the cover price of the book or the net price the publisher receives after discounting to buyers. The latter method is common, but not desirable, particularly if there is a clause in the contract that stipulates royalties will diminish (or be halved) on books sold at discounts greater than fifty percent. (Since some publishers sell MOST of their books at a greater discount than this, so accepting this clause could cut your royalties to the nubbins.)
Working With A Literary Agent
Although professional writers with a track record have more negotiating power than a rank beginner, beginners can often get better royalties if they can find a literary agent who will represent them.
At one time, I believed that because I felt comfortable negotiating a book contract I didn't need to give an agent a percentage of my royalties for doing what I could do myself. That was my argument until the year I finally accepted the fact that one person can do only so much. The demands of my business, coupled with the memory of frustrating publisher experiences in the past and all the stress this caused me, finally made me realize I needed a break. It is the tendency of entrepreneurs to want to do everything themselves, but after several years, burnout is a serious problem. The time finally came when I knew I had to ease up a bit and accept help from someone else.
After working with a terrific agent for several years (who now works only with established writers), I can state emphatically that she is worth every penny she earns and more. She first proved her worth the year she got me a sizable advance for doing a new edition of Homemade Money and wrote into my contract that all future updates would also require an advance. Having already updated that book four times for the first publisher without receiving an advance, you can bet I was delighted to give her 15 percent of my royalty advance for that edition.
Later, when we ran into quirky problems, I didn't have to stress myself over them because she took the whole load off my shoulders and resolved all misunderstandings to my satisfaction. She later sold four other books for me, getting all kinds of special clauses and benefits in my contracts that I never would have thought of in the first place, or been been able to successfully negotiate.
In short, an agent who is excited about your book project will work hard to get you the largest advance possible, the highest royalties possible, the highest discount on books you want to buy for resale, and so on. Although it's hard for beginning writers to interest a literary agent, if you have a solid book idea and can prove its marketing possibilities, it may not be as difficult to get an agent as you think.
Unscrupulous Agents on the Web
You shouldn't be surprised to learn that there are a number of unscrupulous literary agents and agencies operating on the Web. There are a lot of unscrupulous book publishers working on the Web, too. If you turned up an agent who quickly sent you a contract, don't assume it's because you've got a great book. Sorry to burst your bubble, but the fact that an agent is eager to represent you may have nothing to do with the quality of your writing.
In working with author clients, I've learned that some agents or agencies will take on anyone, whether they think they can actually sell an author's book or not. What some are more interested in is collecting the hefty fees they charge for every little service offered, payable whether they get a publishing contract for the author or not.
The good news is that you can give yourself a crash course on literary agents by first doing a keyword search for "unscrupulous literary agencies" on Google, and then by reading this excellent "Literary Agents" article on the Science Fiction & Fantasy Writer's Website. It offers a list of dishonest agenting practices, explains why there are so many amateur, marginal, and incompetent agents looking for clients on the Web, and how to tell a questionable agent from a reputable one. Also included is a list of resources for authors in search of a good agent.
Also check the Literary Market Place directory in your library or online to connect with reputable literary agents who work with book publishers that sell to retail bookstores, libraries and book clubs, etc. If you search Amazon for "guide to literary agents," you'll see that there are a few annual directories of agents to choose from.
Even when you believe you have found a reputable literary agent or agency that is interested in representing you to the trade, you would be wise to have the contract checked by someone who understands the lingo. If you have no one else who can help you decide whether the contract you have from an agent is a good one or not, I'll be happy to check it for you in the same way I now help authors understand the clauses in a book publishing contract.