Publishing Contracts

Kid asked a question in the lettercol for a previous post, and I thought I'd answer it here. It concerns the nature of book publishing and contracts by the New York houses.

Basic book contracts run eleven or twelve legal-sized pages, with small print. Most everything is laid out. Some of it, a good agent can negotiate, which is why, if you are inexperienced, you need an agent -- not to sell it as much as negotiate it. They will know what you don't have to give up.

You can also use an entertainment lawyer, but a regular attorney not in the biz won't do -- s/he wouldn't let you sign a book contract, because it will ask for your first born and a pound of flesh and they don't know how to get around it. What you can get away with changes -- this week isn't the same as last week, or next week.

Some of the contract is boilerplate, and if you want a company to publish and distribute your book, you must agree to the terms. No way around it unless you are King, Clancy, or Auel, and even they have limits.

Some writing organizations offer ideal sample contracts that favor writers. These are jumping-off places -- I suppose it is possible to get one, but I've never seen a real contract as good as the idealized versions.

The publisher assumes certain risks -- they put up all the money for printing and distribution. If the book tanks, they have to eat the loss. You don't have to give your advance back, though they will try to get basket accounting on a series, so that if one book falls flat, they can avoid paying on one that sells better until they get their money out.

Advances used to be half on signing, half on acceptance of the finished ms. Now, they tend to be broken into thirds -- third on-sign, third on-delivery of the ms, and the last third on publication. Since it might be a year after you turn the book in before it hits the racks, you don't want this.

For taking these risks, publishers want as much of the pie as they can slice.

As long as a book is in print, the publisher retains the contractual rights on the title -- unless they are renegotiated and revised later. To wit: They own that book for eternity. If I write another one in the series, they will usually have a first-look option, and the right to meet a competing offer from another house, if I want to go elsewhere. If it is a goose that lays golden eggs, they absolutely do not want to kill it.

If your book goes out of print, you can get all rights reverted, and sell them where you will, or can, but this is complicated by what exactly the term "in print" means, and never more so in the age of ebooks. It can quickly get to lawyers, guns, and money, if there is still money to be made on the title.

For things like audiobooks and the like, there are additional pages, and each foreign publisher adds in their paperwork along the way, as do any companies that want to do TV, movies, game, toys, or glow-in-the-dark condoms based on your novel.

I own the Matadors. The copyright is in my name, and I can write about them as long as I have the notion and my hands work. But the contracted books and distribution thereof, which countries wherein the books will be offered, movie rights, games, ebooks, comics, radio plays, stage plays, etc. that might arise from the book, are set once the contract is signed. Maybe I can keep Namibian rights in English, and the translations into Serbo-Croat, but the publisher will get a piece of the Japanese language rights.

That's how it has always worked.

These days, my agent is able to keep more for me. Back when I started, the standards for a new midlist writer were different, and my agent didn't have the clout to keep what I routinely keep now.

(Then to make it more complicated, your agent also gets perpetual rights for any title she sells, so if you switch agents, the former one gets a piece of what she sold forever. If the new agent manages to resell an old title, you pay two pieces instead of one -- unless you can renegotiate that ... )