From Morse:
The path to publication generally requires authors to sign a “publishing contract” that covers such topics as: manuscript delivery and acceptance, copyright ownership and grants; royalty advances, rates and payment; author warranties and indemnities; contract duration and rights reversion (out-of-print); options on new works; and limitations on competing works. But if you’re an author who can’t find, wait for, or afford a lawyer, how do you know what terms are standard, reasonable or fair?
The following is not meant as legal advice, but rather as a checklist and guide to the issues typically covered, and the terms publishers typically offer, so you can identify issues to consider and possibly address and thereby make the time spent with your lawyer or other advisor more efficient.
1. Rights granted (Form, Language, Market, Time):
A. Copyright ownership: Who will own and control the bundle of copyrights, in what media, and in what geographic regions (see below)?
- Author should own the copyright (though academic publishers often demand an assignment of the copyright); ideally it should state that rights not specifically granted are reserved to Author.
- If you can’t avoid “work made for hire” or express assignment to Publisher, be sure to address the termination of the grant/contract and reversion of rights to Author (see “out of print” below at 9.F and 15.E).
- Publisher ideally should agree to register copyright in Author’s name (or at least allow the Author to do so – avoid registering copyright in Publisher’s name).
B. Territories (EC & Australia considerations): Where can the rights be exercised? Some publishers will seek worldwide rights; but industry customs favor a more nuanced approach, given that translation rights are implicated. So, consider which territories it makes sense for your publisher to control and start from there.
C. Subsidiary rights: first serial (exclusive right to be first periodical to print story, article, excerpt, etc.), second serial (nonexclusive right to publish after first publication by another periodical), reprint (essentially same as second serial), British Commonwealth (publication in any of over 50 countries, mostly former British colonies), other foreign territories, translation, motion picture, TV, dramatic, audio, electronic, multimedia, podcast, commercial and merchandising – which of these rights are reserved or granted? Consider: how well placed is Publisher to sell such rights, and how successful historically? Here are other issues to address:
- Proportion in which proceeds shared (standard: 90% first serial, 75/80% UK and foreign, 50-66% other).
- Author or agent approval of sub rights licenses controlled by Publisher.
- Pass-through (after advance is repaid, ideally the royalties owed for sub rights – typically ½ of what Publisher receives – should flow through to Author 30-60 days after receipt).
- Hard/soft deal vs. Hard/soft separate.
- Author ideally retains dramatic, film, TV, radio, merchandising (today’s standard publishing agreement often retains these for Publisher; but consider arguing that these should remain with Author unless Publisher has affiliates, proven success or special expertise to do these things).
- Author ideally retains rights to characters, settings, title (if fiction with series prospects).
- Preserving and allocating electronic, audio, and video rights and rights in new technologies (ideally no right to add music or sound effects without Author approval).
- Book club rights – be sure royalties are fair (don’t become a free or low-cost giveaway).
- If Publisher takes subsidiary rights you care about, press to have any rights that Publisher has failed to exploit within a reasonable period (e.g., 2 –3 years after book published) revert to Author.
- Include general reservation of rights clause: any rights not expressly granted to Publisher remain with Author.
2. Advance and Royalties: Amount and Schedule
A. Advances – Ideally these should be nonrefundable; at worst, if manuscript rejected, Publisher may only recover from “first proceeds” under next contract for the same work
- Ideal: 1/2 on signing, 1/4 on delivery of half MS, 1/4 on final acceptance.
- Avoid “payment on publication” (though that’s what many Publishers offer).
B. Royalty Rate (but (i) understand base against which rate applied: ideally it would be cover or list price, but it may be net of freight pass-through (“invoice” price), or simply – and less favorably – net receipts, and (ii) if based on net receipts, ask what discount applies to their normal channels and what percent of their sales is at a deeper discount)
- Hard cover: 5,000 – 10%; 10,000 – 12 1/2%; 15,000 – 15%
- Mass market paper: 6/8% (on first 50-150,000), increasing to 10%
- Trade paperback: 6/7 1/2% (on first 25,000), increasing to 9/10% (often on “net price” or “amount received,” which is typically 1/3 – 1/4 off list)
- E-books: highest print rate; 20-50% net (35% increasingly common)
- Audiobooks: 10-25% net for physical copies, 25-50% for digital copies
- Academic and scholarly texts, including textbooks: 6-15% net
C. Bonus payments or increased payments in the event of:
- Book club sales
- Bestseller list appearance (identify which lists count, e.g., New York Times, Publishers Weekly, Amazon Charts)
- Award winner: Pulitzer, NBA, etc.
- Motion picture or TV development
- Earn-out advance
D. Discount Schedule: consider distinguishing premium sales to business from bulk sales to specialty stores, and request sharing “costs” of deep discounts.
E. Royalty reductions may be proposed for: deep discounts, special sales, mail order, premium sales, small print runs (typically 50% of standard rates or a flat low rate, e.g., 5%).
- If the royalty is lower for deeper discounts, learn what percentage of their books are sold at what discount levels.
F. If the book includes advertising or other third-party content (other than excerpts from other works published by Publisher), Author gets 50% of fees paid to Publisher.
G. Authors and Illustrators of children’s books generally share revenue 50/50, unless either hires other to do work.
H. Grants: Authors of textbooks and nonfiction may require grant funds to cover extra expenses, such as travel, research assistance or special artwork.
Link to the rest at Morse