Whichever route you take to publish your book, one thing is certain. You’ll have to deal with contracts. They are long, boring and often hard to understand, but never make the mistake of signing on the dotted line or ticking the appropriate box on the website without being 100% sure what you are agreeing to. .
I’m not a lawyer, but over the years I’ve learned a little about contracts. The most important thing to remember is that everything in them is there for a reason. Don’t believe anyone, not even an agent, who says you don’t have to worry about a clause you don’t like because no one will actually put it into effect. If that was true, the worrisome words wouldn’t need to be there in the first place.
What rights are you giving up?
Your future income from your book depends on your copyright so it’s vital that you don’t part with it, either deliberately or by accident. However, as no one can produce a copy of your book without your permission, you will need to grant a license to any publishing companies that you work with.
Many publishers (especially the traditional ones) will want that license to grant them every right in your work that exists, with a proviso about ones later invented. But, before you agree to that, ask if they are in a position to use all those rights effectively. This is particularly true of film and translation rights. Before you license those, make sure the publisher has a good track record in selling them. Otherwise you can end up with the rights languishing unsold or the frustrating situation of having to pay the publisher a percentage when you’ve actually found the buyer for the rights yourself.
If you’re self-publishing, most of the companies you use will only need non-exclusive rights which leaves you free to work with more than one company at the same time. (eg Kobo and Kindle Direct Publishing). But traditional publishers usually ask for exclusive rights to protect the investment they are making. Before you agree to that, think carefully about the next point.
How long will the contract last?
Nothing lasts forever. Publishing companies go bust, and even your copyright expires 70 years after your death. As a result, a publishing contract needs to have some sort of termination clause. In the old days, this would state that your rights reverted to you if the book went out of print. However, that doesn’t work well these days because ebooks and POD books remain available for ever. So it’s better to have the reversion clause come into effect when sales drop below a certain level or, better still, to have a fixed term contract that automatically comes to an end after a set number of years. For self-publishing, you need flexibility as the markets change so it’s good to have the ability to cancel the contract after a set notice period.
It’s also important to have the rights automatically revert to you if the business ceases to trade or goes into liquidation. Otherwise you can end up in a legal limbo, with no one to ask for your rights back. I learned this the hard way as the first POD company I used years ago went belly up with no warning and disappeared completely. Luckily the contract was non-exclusive so I wasn’t totally stuck – just out-of-pocket and a little wiser.
Danger words
There are some words that should always sound alarm bells when you see them in contracts, agency agreements or website terms and conditions. Two that particularly worry me are permanent and irrevocable. If you spot those, read everything else very carefully and be prepared to walk away rather than commit to something you can never get out of. The word exclusive is sometimes necessary but the sight of it should always make you extra cautious. Be sure to check out how long the exclusivity will last and what benefits you’re getting in return.
Non-competing works clauses
These have become a feature of traditional publishing contracts and are a major reason why I prefer self-publishing. Originally they were fairly reasonable: the author only promised not to sell another publisher an abridgement or extension of the same book. But over the years, they have become more and more restrictive as publishers seek to control their authors future careers. I was once asked to sign a contract that stopped me publishing any book that competed with the one I was selling. When I commented that this seemed to mean I could never write another book for the same age group without their permission, the publisher said I was right and that was exactly what they wanted. That was totally unacceptable to me as it would have grossly restricted what I could do in the future so I turned down their offer and sold the book elsewhere.
You need to watch carefully for non-competing works clauses because they are sometimes hidden in other parts of the contract, especially the warranty. If you spot one in a traditional publishing contract, try to get it taken out or watered down as much as possible and time limited (so it expires after a year or two rather than lasting for the full term of the contract). And only agree to it if you are happy to live with the consequences. Don’t just cross your fingers and hope no one will apply it. You might live to regret it.
Any sort of non-competing works clause in a contract for self-publishing services should sound alarm bells so loud that they deafen you as you run away. If you’re paying all the costs, you should always keep full control and freedom.
Finding out more
Contracts are a huge topic so this post has only touched on some of the issues they raise. You’ll find plenty of other useful information on the subject at www.kriswrites.com and www.thepassivevoice.com.
Getting advice
If you have an agent, they will help you with the contract. But be careful – anyone can become an agent so there is no guarantee that yours knows what they are doing. If you haven’t got an agent or you don’t want to rely on the one you have, you can get contract advice from The Society of Authors and/or from a lawyer with relevant experience.
Diana Kimpton