[This article first appeared in the December 2011 edition of the Victorian Writers’ Centre Magazine. (c) Alex Adsett. 2011]
A publishing offer is an exciting thing. Your brilliance as a writer is finally being recognised, and you’re on your way to publication. Now you just need to make sure your rights are protected, while maintaining a good relationship with your publisher-to-be.
Most publishers will give you a formal written offer before they supply the contract. Negotiation starts here. Usually, the ‘big’ deal terms will be covered in the offer; advance, royalty, formats, territory, assignment or license, with the finer details such as subsidiary rights, reversion, options etc. covered in the contract.
Once you have agreed to the offer (in whole or part), it forms the basis of the contract the publisher then draws up for you. Although you can keep negotiating all points until the contract is finalised, it is considered unprofessional to start re-negotiating something you had previously agreed, and may well annoy the publisher.
Starting off negotiations, you may as well go in all guns blazing and ask for everything you want changed in the contract. As long as you are polite and back yourself with solid reasons, there is rarely any harm in asking, and (almost) the worst the publisher can do is say ‘no’. Publishers accept that negotiating is part of business, and a first round of negotiations would be unlikely to jeopardise the deal.
It is hard to mount a successful negotiation, if you and the publisher know that you’re desperate to accept no matter what. Decide in advance the changes that would be nice and which are ‘dealbreakers’. Be prepared to walk away if the contract does not meet your minimum standards, but never threaten to walk if you don’t mean it.
A standard publishing contract should include:
i) Description of what is being contracted for, including the proposed name of the book, the author a short description, and when it is to be delivered.
ii) License or an assignment. An exclusive license means you are still the copyright owner, but the publisher has the rights to control your work, subject to the contract. An assignment means the publisher becomes the new owner of the copyright, and you rarely have any further control.
iii) Rights, including print, digital, languages and territories. When the publisher acquires the rights, they are going to try to license as broadly as possible to give them the best chance of exploiting all the possibilities in your book and recouping their investment. Before licensing all or some of your rights you should ask: a) what is the publisher going to do if they get these rights and b) what would I be able to do if I kept them? If the publisher is likely to do a better job, and you still have some say, it is usually better to license the rights so that they can be used.
iv) Term of the contract. Is it for a set number of years or for the life of copyright (ie. 70 years from death of author)? Publishers try for as long as possible, but either way it is very important to have a clear ‘reversion of rights’ clause so that copyright reverts back to you if the publisher is no longer selling the book. With e-books now available, your book might always be available, so it is strongly recommended that you have a reversion clause tied to how many copies of your book are sold in any format.
v) Payment. When you license or assign rights in your work, the publisher will usually offer to pay you in royalties (a percentage of every book sold) or by a once-off flat fee payment. An advance is an upfront payment which is recouped against royalties as books are sold.
Royalties are a way for the publisher and the author to share the risk with a book. It means that the author will get a percentage share from each book sold, and so the more the book sells, the more income an author will receive. A flat fee is more common when the rights are being assigned to the publisher, and means the author will not receive any more income no matter how many or few copies the book sells.
It is important to look at whether your publisher has offered you a royalty based on recommended retail price (RRP) or net receipts, as this can make a big difference to your income. Be wary of high discount clauses which give you a lower royalty rate if the publisher sells at an unusually high discount.
As a very rough guide, Australian standards are: print book royalties 10% of RRP, ebook royalties 25% net receipts, high discount royalties starting at no lower than 55% discount, and subsidiary rights splits at no lower than 50% (and often much higher) to the author.
There are many other things to watch out for, so it is important for you, or someone you trust, to read every word of the contract you are signing. Always check to make sure the contract includes everything you agreed, and nothing sneaky that you did not. Do not make promises you cannot keep (ie delivery dates, warranty clauses) and do not sign anything that you do not understand. Seek independent advice if you do not understand the contract or need help with negotiation, but never be worried about asking your publisher for an explanation of the terms.