Ask the Publisher: Anatomy of a Publishing Contract

Happy Monday, everyone. I was recently asked, “What goes into a publishing agreement and how negotiable up front are they by the author?”

So, let’s go through the standard sections of the agreement and I’ll note, at the end of each one, just how negotiable it really is in our experience at Common Deer Press. Hint: All of that negotiation happens with me.

I apologize in advance⎯these agreements, like all legal agreements, can be…tedious. If you are only interested in a couple of sections like, say…royalties, then skip ahead (Sections 15, 16 & 17), my feelings won’t be hurt!

Sections 1: Granting of Publishing Rights, 2: Copyright and 3: Author’s Warranties and Indemnity

These are standard legal clauses basically granting the publisher the right to publish and confirmation from the author(s) that they are the sole author(s) of an original work.

Negotiable? In terms of who has control over legal fees if disputes arise.

Section 4. Right of First Refusal

This is where the author commits to submitting to the publisher their next book-length work in a series. The publisher has 60 days after receiving the manuscript to notify the author of their decision. If the publisher declines the manuscript then and only then, is the author free to take it to another publisher.

Negotiable? Rarely. The reason this clause is in here is that publishers invest significant resources in a series not only in terms of bringing the books to market but in committing to shaping and building an author’s career.

Section 5. Editing

The publisher reserves the right to assign (and pay for) an editor to edit the work. The editor works with the author on an agreed upon timeline and the agreement can be terminated if the author fails to meet those deadlines.

There are financial penalties if the author requests the rights to the work back after a significant portion of the editing has been done.

This section also gives the publisher final approval over the title of the work (with every effort made to use the title suggested by the author) the right of final approval of the manuscript and the right to advertise, distribute, and promote the work as the publisher sees fit.

Negotiable? The financial penalties might be negotiable.

Section 6. Cover Art, Interior Art, and Back Cover Blurb

Unless the book is author illustrated, the publisher will provide the cover and interior art (as required). The author will be asked to write a draft back cover blurb and also for suggestions for the cover art. The publisher has the right of final approval or refusal over both the cover art, interior images and the back jacket blurb material.

There are financial penalties for the author if they request further changes after the cover/back jacket blurb has been finalized.

Negotiable? With the exception of the financial penalties there is little room for negotiation. The cover and back jacket blurb are key marketing materials for the book (yes, books are judged by their covers!) and can make a significant impact on sales – especially for a first-time, or still emerging, author.

Section 7. Formatting

The publisher will be responsible for preparing the work for release in all the relevant formats in a manner acceptable to their distributors.

Negotiable? Not usually relevant.

Section 8. Author Changes to the Work

This section talks about late-stage author-requested changes to the work up to a threshold amount. Typically, if the cost of the changes exceeds that sum, then the balance will come out of the author’s future royalty payments.

Negotiable? Possibly the threshold amount.

Section 9. Style, Price, Promotion, Distribution

Typically, the publisher has the right to price (normally market-driven), promote and distribute the work as they see fit. The author has input on the style of the work (cover or covers) as discussed in Section 6.

Negotiable? Not usually relevant.

Section 10. Advertising and Promotion

The publisher has the right to devise the advertising and promotion plan and to use the authors image and bio as appropriate and after the author has given their approval. Any events requiring the author’s presence require prior consultation and agreement which shall not be unreasonably withheld.

Negotiable? There may be situations where an author feels they can’t make public appearances and that would be inserted in the agreement from the start.

Section 11. Subsidiary Rights

These are the rights for:

• First and second serial rights

• Recording and photographic reproduction of all or part of the text (audiobooks would fall in here)

• Dramatic rights: stage, tv and film

• Translation rights – the sales of the work to a foreign publisher to be translated and distributed in another country.

These subsidiary rights have a cost sharing percentage between the publisher and the author. The publisher has the right to sign contracts for these rights after consultation with the author.

Negotiable? The percentage split may be negotiable. The secondary rights staying with the author might be negotiable. For example, if the author is also a film director/producer they might negotiate up front with the publisher to retain the dramatic rights for a financial consideration.

Section 12. Reserved Rights

Any rights not specifically outlined in this agreement stay with the Author.

Negotiable? No idea why you’d want to.

Section 13. Revision

This section contemplates the publication of a new edition after discussion with the author. Or, if the author wishes to undertake a new edition, after discussion with the publisher. This section also states that the author won’t write anything that will injure the sale or distribution of the work in question.

Negotiable? Not relevant.

Section 14. Force Majeure

This exonerates the publisher from the terms of this agreement if publication is prevented by any reasons beyond the publisher’s reasonable expectation of control (changes in laws, labour disputes, inability to obtain the materials necessary).

Section 15. Royalties

This section lays out the advance on royalties and the timing of the advance payments. Advances are typically spread over three periods: one portion is paid on signing, another when the final fully edited manuscript is complete and the manuscript heads into layout and production and the third payment comes on the publication date.

Negotiable? Yes.

Section 16. Royalties

After the author’s advance payment has been earned out this section lays out the royalty percentages on net revenues (revenues after vendor discounts over which the publisher has no control, most vendors, like Amazon and the big book chains, take about 50% of the retail price) paid to the author. These typically are based on thresholds for copies sold. For instance, 10% on the first 5,000 physical copies sold and escalating in increments such as 5,001 – 10,000 copies, 10,001 and up. Digital copies of the work will usually get a higher royalty than physical copies because there are no production or freight charges involved.

Royalty percentages for other types of sales like translation rights, book clubs etc. are also laid out in this section.

Negotiable? Yes, if you already have a publishing track record or a particularly large platform established.

Section 17. Statements & Payments

Royalty statements and payments are usually sent out twice a year. The publisher is allowed a reasonable reserve against returns (booksellers can order huge numbers of books and then return 80% of them, heartbreaking for all concerned).

Negotiable? Not relevant

Section 18. Termination & Reversion of Rights, Section 19. Notices, Section 20. Successors and Assigns, Section 21. Term of Agreement, Section 22. Waivers, Section 23. Amendments, Section 24. Laws Applicable, Section 25. Severability, Section 26. Entire Agreement.

These are all standard clauses and not relevant for negotiation.

Whew, we made it! It’s an important document and one the author needs to fully understand before signing.

As always, I’m happy to hear your thoughts or questions on the matter. And, I promise something more fun for next time!