Can I Negotiate the Terms of a Publishing Contract?
You’ve done it! You’ve got a contract in your hand from a publisher. Pen clutched in trembling hand, you can’t wait to put your signature down. But you should wait. You really, really should. Wait, think, and make sure you’ve read that contract from top to bottom. Because not all contracts are created equally and it’s absolutely OK for you to ask questions.
I am not a lawyer. I am not a solicitor. I am not a barrister or notary public. I have seen a lot of publishing contracts and learned the hard way not to sign a bad one.
Why I think it’s always OK to ask questions about a contract
If a contract is worth having, it’s worth having from a publisher who has picked your work out from a field of available talent. They want you, just like you want them.
What I mean by this is that there are some publishers who throw contracts around like confetti. Sometimes these guys are just chasing rights – they are landing grabbing as much intellectual property as they can in the hope that they strike some gold. Other times they are trying to build a publishing portfolio fast so that they can land-grab some space at Amazon and cross-promote their titles. Sometimes, people are just crazy.
I’m not saying that these guys don’t represent some good people, it’s just that, for the writer, it’s the publishing equivalent of playing the lottery… except you and your fellows are the balls. The publisher is not interested in who drops, just as long as someone does. Sometimes these publishers are the easiest to negotiate with but, in my experience, they are normally the ones who are the hardest.
These are the guys who will give you a hard time for questioning them, and say things like “It’s just a contract, everyone else just signs it, what’s your problem?”
These are the guys to run from. If they don’t understand their own contract, how are they going to cope negotiating with anyone else?
Trust your instincts. If the contract looks like it was downloaded for free from the Internet, it probably was.
No, the publisher you want is the publisher hard won. The publisher who wants to invest their time and effort in you and who therefore should be more than happy to answer your questions about the contract (even if the answer is “I’m really sorry, we can’t/won’t change that, and here’s why…”).
At the end of the day, always remember that your work has value. Signing a publishing contract that brings you no value is no better than giving your work away. In fact, in some instances, it’s worse because you’ve not only given away your work but you’ve given away the future of your work as well.
With that in mind, here are the things that I always look out for when I’m reading a publishing contract.
Christopher’s Top Things to Watch Out For in Publishing Contracts
Publishers asking for rights that they don’t need.
What rights are you actually signing away? If someone is putting your work in their print magazine, they should want something like the “First Worldwide English Serial Rights”. They don’t need all your rights and they don’t need them across all media.
Rights are normally made up of four components – Territory, Language, Medium, and Duration (or Sequence).
So, in the example above, we are selling the rights to be the first printing of the work in English on the entire planet. Ever.
Limit what rights you sell and you retain the option to sell secondary rights and first rights in other forms. I’ve been able to sell the same piece of work to multiple publishers this way, completely legitimately. Sell a slice, not the cake.
Batman – The Exception that Proves the Rule
Publishers who are asking you to work on a property that they hold the rights to. This comes up a lot working in comics where there tons of licensed properties. You’re never, ever going to “own” your work on Batman unless you’re a contractual genius sitting on a “must have” character. Mostly, this is going to be work for hire and whilst you will be creditted and paid and may receive additional royalties and credits on the back-end, the rights will belong to the owners.
Some creators do receive royalties from characters they have created but outside of “creator-owned” comics this is rare and often the result of long and bitter court action. The ownership of Superman, for example, has been being battled out on court since 1947.
Exclusivity and terrain
The world is shrinking, at least in n publishing terms. Many publishers will want rights “worldwide” to cover the eBook market. However, this is not a necessity. Amazon, the biggest eBook platform by far, is divided up into territories and releasing your book on the .co.uk incarnation is not the same as releasing it on .com, .de, .fr, etc.
In the book publishing world these are referred to as “secondary markets” and they can be very lucrative.
The bad news, by contrast, is that if you’re selling to a website or online publication only worldwide rights are going to cut it. Refer back to rule one, however, and ensure you are only selling the digital rights.
Not reverting rights that they don’t use.
Just because you have a publishing contract, that doesn’t mean you are getting published. There a million and one reasons why the publisher may choose not to publish your work, or be unable to publish your work, even after the contracts are signed and sealed.
In the film world this is referred to as buying (or selling) “an option” – it effectively means the buyer is buying the option to use the rights sometime in the next X years and, whilst they hold the option, nobody else can use those rights. Unused options should revert to the original owner of the intellectual property after the agreed period.
Make sure that unused rights revert back to you after a sensible amount of time. A year to eighteen months is not atypical, and quite common in the film industry for options, but I’ve seen as high as three years or more as well.
Back End Deals – Payment terms, timelines, and accountability
Back end deals – where you only get paid if your book makes the publisher a profit are rife at the moment. In the independent comic book industry, they are practically everywhere. You either “work for hire” (and own no rights) or you are on the back end.
You may have heard the refrain “Pay the Writer“. There’s no doubt that a lot of writers hate back-end deals and see them as little better than working for free. For many, back-end deals are little more than “Jam Tomorrow”.
I actually don’t mind back end deals, as long as there are some provisions in place to make sure that everybody is on the same page when it comes to how much profit your book is making.
The core of any good contract is reciprocity. It’s a cliche, but the contract should be a “win win“.
My approach to this is simple – there are costs associated with publishing a book, a magazine, making a movie, whatever. If you don’t see any money until these costs are covered, shouldn’t you know what these costs are?
For example, if the publisher is promising to advertise your book, then those costs will need to be covered before you see any money as well. So, doesn’t it make sense if you know how much the publisher is going to spend on advertising?
This stuff can get complicated when your book is one of a bunch being launched at the same time and there are some shared costs between publications, but that’s even more of a reason for everything to be transparent and agreed in advance.
For example, if you are sharing an advertising budget with five other books and yours outsells all the others, does that mean that you end up covering more than 1/5th of the cost of the advertising budget?
My rules are simple:
- Make sure you know the high level figures – what is going out vs. what is coming in.
- Agree on an accounting schedule – when will figures be calculated?
- Agree that both you and your publisher get to see those figures
If possible, try to also agree that any expenditure over a given figure requires the agreement of both parties. Don’t expect, or demand, infallibility from your publisher when it comes to making decisions – share responsibility as well as reward and your relationship should be a happier one.
What happens if the company becomes insolvent?
In the same way that rights should revert to you if they are unused, check to see what happens to your rights if the publishing company becomes insolvent. This is different to the expiry of an option.
This actually happened to me, back in my early comic book days. I signed, along with my artist, a contract for an ongoing horror series. We produced the first issue, it went to print, and then the company died.
We wanted to carry on with the story. The company wanted to sell our contract and intellectual property rights on in order to cover their debts. The contract was ambiguous on this point but, thankfully, we were able to negotiate with them and reach an amicable agreement (we got the rights back). However, it could have gone either way and I do know other people working with the same business were not able to reach the same agreement that we did.
Unavoidable problems, Acts of God, etc. When you put your mind to it, there are a million-million and one reasons that something could go sideways during publication of a book.
If there are any requirements upon you in your publishing contract, anything that you have to do, then make sure you have provision for “Force Majeure“. Heaven forbid but if you end up laid up in hospital, for example, you don’t want to be worrying about finding yourself in breach of your contract.
“Best Endeavours” and “Reasonable Steps”
The Devil, they say, is in the detail. Detail, therefore, is to be avoided at the all costs.
Watch out for phrases like “Best Endeavours” and “taking reasonable steps”. Ambiguity is not your friend and one man’s reasonable is another man’s completely unreasonable… At the end of the day there’s nothing wrong with having some wiggle room, just don’t expect to be able to hold your publisher to account too stringently on anything were “having a decent crack at it” is the measure of success.
Winning a publishing deal should feel just that – you are WINNING.
Your publisher is winning too – they are winning you, your work, and your talent. They have the right to win too.
Negotiation is about finding the “win win” and avoiding the “lose lose”. If you think you “won” and they “lost” there’s a good chance you don’t understand what just happened.
So, read your paperwork, dot and cross letters as needed, question anything you don’t understand, or that looks wrong, or that seems unnecessary or inappropriate. Then, and only then, if it still feels like winning… Sign the damn thing.
Congratulations, you’re published.