A Publisher's Conversation with Authors: What Does My Contract Mean and Should I Sign It? -- Initial Verbiage and Paragraph 1 (Rights)

 

It is Tuesday. Time to tall turkey. Monday's madness is over, and Wednesday will take us over the hump, so Tuesday it is--for some serious discussion with authors. Tuesday talks mean to address authors in waiting and self-published authors who would like to go a more traditional route or who would at least like to take their steps with a publisher by their side.

Today's topic addresses contracts -- what is a good one, what is a bad one, and what do the specialized terms actually mean? I will answer these questions in a series of posts, using, to start, our contracts, and will go through them paragraph by paragraph. Then, I will look at some other publishers' contracts for differing. So, for today, let's take paragraph 1 (all paragraphs are numbered in a contract; that makes it easier for refer formally and legally to specific clauses).

Before paragraph 1; 

• Name of the publishing company
• The words, MEMORANDUM OF AGREEMENT, or something similar, establishing that this is a lawful contract
• The words, "in consideration for publishing," or something similar that sets up the exchange or bargain: what the publisher is giving to the author in exchange for the rights of publication
• The words (or similar ones) that indicate who is the author and who is the publisher, usually with shorthand given to be used through the contract (e.g., "In consideration of MSI Press LLC ("the Publisher") publishing What a Great Book ("the Work"), authored by...; the words in parentheses (the publisher, the work, the author will thereafter be used throughout the contract in lieu of the actual names
• the author information: name, address, phone, email, W9 information (usually a signed W-9 will need to be attached or sent separately)
• the words (or similar ones), "the author hereby agrees" -- following these words will be the several paragraphs about the author's responsibilities and what the author is bringing to the agreement

Paragraph 1:

• To grant and license for the duration of this Agreement to the Publisher -- this sets up the understanding that the author is giving up a portion of the control of his/her work in exchange for publication; what is being given up will be delineated in sub-paragraphs of paragraph 1; be sure, before signing, that you want to give up these things and make sure that whether they are temporary or permanent is specified in the contract; do not sign a contract that is not specific as to content, rights, process, dates, and the like.
• Sub-paragraph a will like state what rights are being granted by the author to the publisher; these could be English language rights, these can be exclusive or non-exclusive rights (if non-exclusive, other publishers or you can also use the  material -- most publishers will not agree to this), an example would be "the sole and exclusive right and license to produce and publish or to cause others to publish the Work in its English-language form throughout the world, to include print, electronic, and audio book rights:
• Sole and exclusive right means no one else can use the work; this is typical
• publish means that the publisher will do this directly
• "cause others to publish" means that the publisher can subcontract the actual publisher -- if this is the case, the information about the "other" should be provided to the author upfront before signing
• English-language form means that the author retains the rights to all translations and may make agreements with other publishers for publication of translations; alternatively, the publisher can ask for rights to all translations (I would not agree to such a condition unless the publisher had reliable plans for publication in other languages and had a practice of doing that with other works)
• "throughout the world" is generally accepted as the norm nowadays; it used to be that publishers would acquire North American rights or European rights, but the world is smaller now
• whether the publisher is being granted any rights for other formats -- e-books, audiobooks, etc, -- should be stated upfront so as to avoid confusion and potential conflict later; we do not acquire audio rights, for example, and those are omitted from the contract with the note that the author may produce his/her own audiobook alone or through another source 
• sub-paragraph b will address aspects of marketing (it might not be sub=paragraph b; it could be elsewhere, but it needs to be in the contract), e.g., "the right and duty to market the work within the scope of its sales and marketing program;" 
• it is important that the words "and duty" be there because otherwise the publisher has the right but not the obligation to market the work, and you could find that the book is not being marketed; 
• it is important, as well, to find out the scope of the publisher's marketing program -- what does it consist of, who does it, when and how (be aware that most publishers expect authors to do a considerable amount of the marketing, and the market is now such that if authors do not, chances are the book will not sell well); 
• work out a generalized marketing plan together with the publisher prior to signing the contract; that can be put into the contract but generally is not; however, email notes also are legally binding
• sub-paragraph c contents may or may not be in a contract because in general it is a given: "The sole and exclusive right and license shall not limit the Author from quoting from the Work in her own materials, whether in subsequent books or in blogs initiated by her/him;" however, if there is any concern that there might result some misunderstanding, it is good to request it. 

The bottom line is that you live well or suffer by your contract. The terms are difficult to understand sometimes, but understand them you must. Take them to an intellectual property rights lawyer if you do not understand them; it is worth the money.  

Lesson for today's Tuesday talk: Once you understand your contract and have other kinds of desires, do not hesitate to negotiate with your publisher. Many things can be negotiated; some cannot. You will never know if you do not ask.

Read more posts about publishing HERE.

The Tuesday talks reflect real discussions between the management of MSI Press LLC and our own authors or those would-be authors who come through our doors but don't make the cut--yet. If you have a topic you would like addressed, leave the question in the comment section. Chances are, in our 18 years of publishing first-time and experiences authors, we have had a conversation with one of our authors that we can share with you.

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