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