Do I need an editorial services contract, and, if so, where can I go to find a sample contract?
For a discussion on whether you need to have a contract with an independent editor you have engaged to work on your manuscript, see http://www.ivanhoffman.com/editor.html. Sample contracts for editorial services can be found at http://www.judykingedit.com/Sample_Contracts/sample_contracts.php#editing%20contract, http://freelancebank.com/resource.asp?id=14114, and (for Canada) http://209.197.81.79/hire/sfea/index.html.
Where can I find a sample ghostwriter contract?
If you contact a credentialed ghostwriter, he/she should have sample contracts you can examine. These, of course, should be compared with samples you find on your own, though, to ensure that the provisions are balanced and that everything you need for your protection is included. The Canadian Writers Union at, http://www.writersunion.ca/up.html has a pamphlet you can order ("Ghost Writing" by Marian Hebb, for Canadian $9.00) that discusses ghostwriting contracts and provides a sample contract. Tad Crawford has a couple of books out with sample contracts that can be adapted once you have an idea what you want the ghostwriter to do for you. These are Business and Legal Forms for Authors and Self-Publishers (Allworth Press, 2000) and, with Kay Murray, The Writer’s Legal Guide (Allworth, 2002). A discussion on ghostwriting and what should be included in a ghostwriting contract can also be found at http://www.pma-online.org/scripts/shownews.cfm?id=886.
Where can I go to find out what should be in a good literary agent contract and what one looks like?
An author’s contract with a literary agent should include such elements as what work(s) the contract covers; whether the agent has first refusal on future works; what agent activities are to be performed and for how long; how payments for expenses and royalties are to be handled; what form and frequency progress reports are to be given, including whether the author is to be shown all rejections and offers; how the contract is to be terminated; and how amendments to the contract are to be handled. A sample author-literary agent contract can be found on the Science Fiction and Fantasy Writers of American Web site at http://www.sfwa.org/contracts.
I don’t understand how agent contract signing works. Will I have to go to where the agent is and read and sign a contract on the spot?
Unless you are located near your prospective agent’s office, you probably will receive the contract by mail and will be asked to sign (and have notarized) two copies of the contract and return them to the agent by mail. If the agent has signed both copies before sending the contract to you, you need only send one copy back. If you have signed first and had two copies notarized, the agent will sign the copies you return and send a signed copy back to you. Whether you are presented with the contract in a face-to-face meeting or by mail, however, there’s no reason you should sign the contract before taking it to a lawyer or publishing expert for review. (If possible, consult a publications, entertainment, or contracts lawyer; general lawyers rarely are experts in publishing issues, and a criminal, bankruptcy, or real estate lawyer would probably be of no use to you at all for this purpose.) If an agent pressures you to sign the contract on the spot without review help, this is a good sign that you don’t want to sign this contract with this agent.
What questions should I ask about what’s in a contract with an agent before I sign it?
One the biggest mistakes an author can make is to be so overjoyed at getting an offer of representation from an agent—any agent—that she/he doesn’t bother to determine through verbal communications whether the agent is a good fit for the author or to pay attention to what is in the agent’s contract before signing it. This, however, is exactly the time that you should be asking detailed questions about the agent’s credentials and success stories, how they plan to market your manuscript, what the relationship and means and timing of communications between the two of you is to be, what the compensation agreement is, whether/how the agent will be developing your ongoing writing career, and what the exit strategy will be if the relationship doesn’t work out.
All of this should be covered in the contract as it has been discussed; there’s no such thing as an unchangeable "standard" literary agency contract. One of the axioms of the business is that having no agent is better than having a bad agent or an incompetent agent. For a good discussion of what topics should be dealt with in a conversation between author and prospective agent, see the anonymous article by a known and vetted literary agent on the WritersNet Web site at http://www.writers.net/articles/writers/ask_before.php.
Who represents the author in publishing contract signing negotiations?
If the author has an agent, then that agent handles the contract negotiations with a publisher. Typically an "Agency Clause" is included in the contract whereby the publisher pays all royalties to the agency rather than directly to the author. The agent then takes out his/her share before sending the rest to the author. If the author does not have an agent, she/he has to either negotiate the contract with the publisher’s lawyers alone (which is not wise unless the author is also an expert in publishing contracts) or needs to be represented by a publications lawyer.
What if the agent doesn’t even want to sign a contract with me; just says we can work with a handshake? How great would that be?
In the mystique about the working relationship between authors and agents in the "good old days," there supposedly were no author-agent contracts—and, in fact, often there really was no written contract in real life. The author and agent worked closely together with complete mutual trust and with all agreements ratified solely by a handshake. So, the concept of working without a contract is not alien to the world of publishing. Many authors still seem to long for these days of simplicity and mutual trust as symbolized by "only a handshake." But the world of publishing has become much more complex (not to mention much more crowded), and, to some extent, authors have grown to realize that such a no-contract arrangement can unfairly place them under the agent’s control. Having a formal, written contract with your agent protects you, the author, and your interests. It also gives you power in the author-agent relationship, which can be just as rewarding with a written contract as with a handshake.
How does the agent get his/her money out of a book sale, and is there a standard pay rate?
The agent normally gets his/her money out of a book sale in physical terms by taking it off the top whenever the publisher sends an advance or royalty check. Such checks normally will come to the agent, and the agent will rake of his/her percentage and send the rest to the author.
The agent normally takes an agreed-upon percentage out of the author’s profit from any advance for and royalties on the book sales, and the rate of this percentage should be clearly specified in the author-agent contract. Most agents currently are working for a 15 percent rate for domestic sales and 10 percent on foreign rights, but there are circumstances, such as the agent being engaged after the publisher has been found or being engaged to handle either only the initial sale or just subsidiary rights, in which the agent may only receive 10 percent of the author’s profit.
Some agents wish to contract for reading and/or submissions expenses fees up front, but this is not the norm in publishing, and most such agents are considered to be neither reputable nor desirable. It is still the norm to only charge minimal submissions (to publishers) expenses fees and not to collect these until after the book has been contracted by a publisher, although increasingly even the reputable agents are charging for reasonable submissions expenses as they are expensed or from the advance. The contract should clearly specify what, if any, fees will have to be paid before the books is sold as well as what submission and/or handling fees will have to be paid by the author if a publisher never contracts the book.
If I have an agent but I find my publisher myself, do I still have to pay my agent all or part of the rate specified in our contract?
Unless your contract with the agent specifies that all bets are off if you, rather than the agent, directly lands a publisher, the agent is due the stated rate of sale no matter who found the publisher. Often agents will sign a contract at a lower-than-standard percentage of the sale if the author has found a publisher before signing with the agent—but this rarely happens if the sale occurs after the sale to the publisher. Remember also that the actual sale of the manuscript to the publisher is only part of the services the agent normally provides in an author-agent relationship. The agent represents author’s interests in the contract signing and also represents the author in other business matters with the publisher, takes care of the business arrangements, and, usually, helps with the development toward the sale of the next book.
This situation makes it extremely important that an author completely close out on contractual obligations to the first agent before changing agents. If a book sells while more than one agent has contractual claim on a percentage of the sale, they both have legal claim to their full cut—and 30 percent is an awfully big slice out of the royalty check coming to the author who didn’t get everything in order before moving to a new agent.
Once a contract is signed, and I am contractually obligated to promote said book and to make myself available for signings, etc., is it still worthwhile to obtain an agent?
If you were interested in moving right on to other writing projects after contracting with a publisher, but without an agent, for your current book, it probably would be worthwhile for you to obtain an agent to help manage the business accounts for your now-contracted book and to help sell your subsequent projects. However, this would be a tough time to be attracting an agent unless you are willing to give the agent 15 percent up front of what you have already received from the publisher. There’s little money for the agent to make from the book you’ve already assigned to a publisher otherwise, and you don’t yet have any new manuscript the agent can try to sell. If you’ve landed your own publisher for a book but think you probably should have an agent, the best times to bring an agent in are while you are still negotiating a contract with the publisher and later, when you have a subsequent manuscript ready for submission.
If I don’t think my agent is doing a good job of selling my book or if my agent gets too sick to handle my book sale, can I go find another agent?
You can certainly change agents as long as you do so within the provisions of the contract you’ve already signed with the first agent. A contract is a legally binding document. Chances are very good that a new agent would not take you on until/unless you were formally severed from your previous agent. If you did engage a new agent without severing legal ties with your old agent, however, and the second agent did sell your book, the first, still legally valid agent would be able to claim her/his full contracted percentage share of the sale—in addition to the percentage share the second agent would get for the sale.
Whether or not you can drop a contract with an agent who is ill or otherwise incapacitated depends on what performance or exit provisions are specified in your existing contract. If there are no such provisions covering such contingencies, you are stuck in this contract on this book for the specified duration of the contract (which, it is hoped, has been spelled out in the contract) if the agent doesn’t release you.
When two or more authors collaborate on a book project, who signs the agent and publisher contract and what do they do about reaching binding agreements between each other?
All authors involved in a book project will have to sign both the agent and publisher contracts, but both the agent and the publisher likely will want the contract to include the identification of one of the authors as a conduit for all decisions. All authors involved should also negotiate and sign a formal agreement between them specifying who must provide what, at what compensation, and how long-term interests of the book are to be handled. A sample coauthor contract can be found at the Adler and Robbins Books Web site at http://www.adlerbooks.com/collab.html.
I am legally a minor, and although agents say they like my work and offer representation, they back out of their contract offers when they learn my age. Are they being guilty of age discrimination?
If you are too young to sign a contract where you live, then agents aren’t discriminating against you when they withdraw contract offers upon finding out how old you are—they are merely following the law. Your parents or legal guardian can sign such a contract on your behalf if the agent is interested enough in representing your work that they are willing to deal with more than one author representative of the book at one time and to go through some extra paperwork. Authoring a marketable book when you are still a legal minor is normally a marketing advantage for a book project, and would usually be seen as such by most agents.
Can I have more than one agent at one time?
You wouldn’t want to have more than one agent for the same project (unless you were willing to pay each their full contracted share of the profits), but, since agents specialize by genre, it would be possible that you would have different agents representing books you write of different genres. However, if you already have an agent for a book in one genre and you are looking for representation for a book in an entirely different genre, don’t assume that your first agent won’t be interested in representing that one too. In all cases, you need to discuss representation of this second book with your first agent—first because the agent may want to represent this one too (and your contract may even specify that this agent has first refusal rights on any book you write) and second because any subsequent writing you do, no matter what field it is in, affects the author biography and promotional campaign your first agent is using to sell your first book to publishers.
If I’ve signed a contract on my own, for nonfiction, does that increase my chances of finding an agent on a fiction project?
Your chances are improved to a limited degree for finding an agent for a fiction project after having contracted with a traditional publisher for publication of a nonfiction book. (But they are not improved at all if you are self-publishing or using a vanity press for that nonfiction book.) The agent won’t presume you have a marketable novel just because you had a marketable nonfiction book—the two disciplines are quite different. But the agent likely will assume that you are able to write well and to finish a book project if you were able to find a traditional publisher for a nonfiction book.
What aspects of author and publisher responsibilities are typically covered in publishing contracts?
The Publishing Agreement includes the title, introductions that include the parties involved, the date the contract goes into effect, and the location where the legal laws apply. The book, or screenplay, is usually described as "the work." If it’s a nonfiction work, the description is sometimes vague, written in general rather than specific wording.
One of the most important clauses is the Granting of Rights clause, which defines what the publisher’s acquired rights are regarding the author’s copyrighted work. Often a publisher will want the right to sell the book as a screenplay to a movie producer or to turn it into an audio or e-book format as well as a print format. Understanding your rights and obligations as an author is a must if you wish to negotiate a good contract. This is why good, reputable agents are so valuable to a writer who is marketing work to a publisher. Agents understand publishing contracts and work to get the most lucrative deal, because any potential contract with a publisher affects them as well.
Subsidiary Rights are basically subleasing of rights to third parties (other than the publisher and author). These include, for example, first and second serialization rights and one-shot periodical rights. Serialization rights allow for all or excerpts of a book to be published in a newspaper or magazine either before (first serialization) or after (second serialization) publication as a book. Deals to publish a serialization or excerpts of a book are usually appreciated by publishers, because they allow for advance buzz talk about the book before its official release. Periodical rights permit republication of all or parts of the work in journals or magazines. Reprint rights give the publisher the right to publish a different edition of the book, usually cheaper. This is an important right, because it may lead to a hardback book being reprinted as a mass-market paperback. Other subsidiary rights include newspaper syndication; performance rights; sound and recording rights; book club rights; the rights to produce and sell condensed versions of the book; and anthology, translation, electronic, and commercial rights. Harry Potter toys and clothing are examples of commercial rights derived from an author’s copyrighted work.
are basically subleasing of rights to third parties (other than the publisher and author). These include, for example, first and second serialization rights and one-shot periodical rights. Serialization rights allow for all or excerpts of a book to be published in a newspaper or magazine either before (first serialization) or after (second serialization) publication as a book. Deals to publish a serialization or excerpts of a book are usually appreciated by publishers, because they allow for advance buzz talk about the book before its official release. Periodical rights permit republication of all or parts of the work in journals or magazines. Reprint rights give the publisher the right to publish a different edition of the book, usually cheaper. This is an important right, because it may lead to a hardback book being reprinted as a mass-market paperback. Other subsidiary rights include newspaper syndication; performance rights; sound and recording rights; book club rights; the rights to produce and sell condensed versions of the book; and anthology, translation, electronic, and commercial rights. Harry Potter toys and clothing are examples of commercial rights derived from an author’s copyrighted work.
Whether or not you will be asked to grant all or most subsidiary rights to your publisher will depend on the size and the interest and ability of your publisher to market your work in various forms. If you don’t have an agent experienced in contracts, have a lawyer familiar with publication contracts take a look at it. Sometimes an author is able to grant the rights to a publisher, yet include a clause allowing the author the right to review any offers before a decision is made. Keep in mind that most publishers want to include in their contract the granting of some or all of the subsidiary rights. This doesn’t mean they are asking to take all of the profit from the use of these rights, but that they want to handle the use of these rights for a percentage of the profits. What is important in this regard is what relative percentage of the profit from these rights the author, agent, and publisher will receive. A publisher can get a percentage of up to half the profit from the exercise of subsidiary rights; agents normally receive 10 percent, and authors receive what is left.
For a nonfiction book project, the Manuscript Delivery clause shows a description of the work and specifies when the author will deliver the finished work. Included are the consequences the author will suffer if the work isn’t delivered in a timely manner and in the condition agreed on. Many times this clause is included in a novel contract as well, because of the revisions required by the publisher before a work is published.
The Royalties Clause defines the payments paid by the publisher to the author for granting the publisher the right to publish the work. Royalty rates vary from publisher to publisher. Some start off with lower royalty payments that increase as more books are sold. Traditional publishers offer return guarantees to bookstores, so they almost always will figure royalties minus the returns from bookstores.
The Advance Clause defines how much and when an advance will be paid to the author. Often only a partial advance is given at the contract signing, with the rest to be paid when the edited and reviewed manuscript is delivered all polished and ready for the publisher to begin production. An advance is just that, an advance on anticipated royalties. Additional royalties don’t accrue until the advance is made up. However, if total royalties don’t fulfill the advance that was paid, the shortfall does not have to be repaid (unless the contract specifies otherwise).
Some publishers give a few Authors’ Copies to the author when the book is released. Provision for this is included in the contract.
Unless you are an established and best-selling author, it is likely your publisher will want full Editorial and Artistic Control. This could include changes in the manuscript as well as the book and cover designs and choosing the price and marketing approach for the work. If the author is to have any say at all in these matters, it should be specified in the contract.
The contract typically also includes Obligation to Publish provisions. If the publisher fails to go to print by an the agreed-upon date, these provisions lay out what the author can do as far as demanding that the book be published or compensation be given.
The publisher must also spell out in the contract what, if anything, it will do for Publicity and Promotion.
Typically, the author is given a periodic (often once/year) Reconciliation to Print right in a publishing contract. At this point in time, the publisher is required to review all the print run, sales, returns, inventory, and so forth data on the author’s book and give the author a bottom line figure of books actually sold and subject to royalties (and make the accounting figures available to the author). If you don’t have this clause in your contract, you may not be given the right to review the statistics.
Further discussion on publishing contracts can be found at http://www.textbookpublisher.com/ This Web site also includes an explanation of the elements of a publishers contract).
I am thinking of contracting with one of the POD producers for the self-publishing of my book. What provisions would be good in a contract with such a publisher.
A contract with a POD producer should include some clauses that are more author friendly than can be expected from even some traditional publisher contracts. You should be able to restrict the POD producer’s rights to the book to nonexclusive print and electronic production. This means both that you should be able to retain nearly all subsidiary rights to the book and that you should even be able to exercise print and electronic rights yourself simultaneously with the publisher (although be aware that it’s virtually impossible to find a traditional publisher willing to share simultaneous publication rights). You should be able to restrict the term of the contract more severely than you normally could with a traditional publisher. You should be able to contract for just two or three years. Regardless, your contract should clearly specify how and under what circumstances it can be terminated. You should also ensure that your work cannot be edited or otherwise changed without your review (although it is in your interests to have your work edited by a competent publishing house editor) and that there are no nearly hidden clauses in the contract that could trigger further expenses to you beyond the basic agreement.
So, when I’ve signed a publisher’s contract, does that publisher encumber my book forever?
Your publishing contract should specify how long it is to remain in force and the date and circumstances under which it is due for renewal or to be terminated. When it is terminated, all rights should return to the author, and the publisher will no longer have rights to publish or to exercise other rights that were included in the contract. The author should be aware, however, that while the contract is valid, all rights assigned to the publishing house are considered assets of that house. As more fully discussed below, if the publishing house goes into bankruptcy, the rights will be tied up, and if the publishing house is sold to another company, all of the rights and obligations of the contract go to the new company—so your children’s picture book theoretically could find a new home with a press specializing in pornography.
Where can I go for advice on improving my book, periodical, or electronic publishing contract?
The Authors Guild provides guidance on improving your publishing contract on its Web site at http://www.authorsguild.org/?p=100.
If my publisher goes out of business or is sold to or absorbed by another company, is my contract automatically canceled?
Your publishing contract is only automatically canceled if your publisher goes out of business or is absorbed by another publisher if you have included provisions to that effect in your existing contract. Through the contract, the rights as stated in the contract to the publishing of your book are part of the company’s assets. If you have no counter language in your contract, your rights can be tied up with all of the other company assets if the publisher goes into any legal condition of suspension or dissolution, and they, along with all the other assets are transferred to any new owner of the publishing house.
Is there any place I can go for updated information on developments in agent and publisher contracts?
The Web sites of the American Society of Journalists and Authors (http://www.asja.org), the National Writers Union (http://www.nwu.org), and the Publishing Law Center (http://www.publaw.com) provide information on developments in publishing contracts.
Where can I find sample contracts for other types of writing?
Sample contracts for both print and online journalism, magazine article writing, and e-books, in addition to both hardcover and paperback book writing can be found at the National Writers Union Web site at http://www.nwu.org/journ/jsjc.htm.
