Saturday, July 6, 2013

Publishing Contracts: Red Flags and Warnings


Today, we're going to discuss contracts.

For crissake, get your fingers out of your ears and quit making "lalalalala" noises at me. If you want to make a living as a writer, contracts are part and parcel of the "not fun" part of writing.

So suck it up, buttercup, and deal with it. Once you understand them, believe me, they are NOT as scary as they appear.

You do, however, HAVE TO READ THEM.

Publishing contracts can sometimes be tricky to decipher, especially from traditional publishers. However, contracts for most indie publishers, especially if they offer digital-only, or digital plus print-on-demand, aren't so difficult the average writer can't decipher them. The truth is, unless your family lawyer is experienced in publishing law, they might be less than helpful to you for some of the clauses.

Off the bat, here is a quick checklist of things to look/look out for:

  • Finite contract length should be specified in years and NOT dependent on flimsy sales thresholds or "in print" statuses that are easily rigged by the publisher to benefit them. Beware of "perpetual renewal" clauses. (Different from automatic renewal, which can be ended after the initial contract period.)
  • Copyright must be retained by author. (And the contract cannot be for the "life of the copyright.)
  • Rights the publisher exercises should be clearly specified, not broadly grabbed in non-specific, future-looking ways. Rights the publisher doesn't exercise should be specifically awarded to the author. (Note: Contracts that are overly broad in terms of grabbing all languages and all print binding types, as well as all media types, and merchandising, are definitely a red flag.)
  • Royalty payment and royalty statement delivery timeframes should be clearly specified. (ie. every quarter, with the quarter end date specified, and a maximum number of days after that, such as 30 days after end of quarter, etc.)
  • "Net" royalties should be clearly defined. (ie. the publisher says they pay you a percentage of the actual amount of money they receive, not some cloudy "net profit" with poorly defined expenses -- expenses should be borne by the publisher, not the writer, and already figured into their selling price)
  • Payment method should be stated. (ie. wire transfer, check, fund type -- important especially for authors dealing with publishers in different countries and using different monetary types)
  • Audit clauses. Do NOT sign any contract without an audit clause.
  • Non-compete clauses. It is highly recommended you do NOT sign a non-compete clause, unless it's for a specific pen name you've already set up to write for that particular publisher. (That is not an uncommon occurrence, for a writer to contract a series under a pen name to a specific publisher, and it's also not a "bad" thing. AS LONG AS you understand up front what you're getting into and it doesn't limit you in any way to write similar types of books under other pen names for other publishers or self-published.) Any non-compete clause that limits you in what and how and where you can publish fiction under other pen names can be dangerous to your career if you don't understand it. For example, my pen name Tymber Dalton is now exclusive to my publisher for a set number of years for my fiction, but they allow me to self-publish non-fiction tutorials as Tymber. However, it does NOT limit me in any way to other pen names, publishers, genres, etc. Also, I participated in two special series with two different pen names created exclusively for the publisher, for those special series. Nothing in the contracts prohibited or restricted me under my other pen names.
  • First refusal clauses and next book clauses. Make sure these are specific to a book/series, and not broad by genre/pen name.
  • Kill fees.
Want some more info? Run a Google search for "publishing contract red flags" and you'll find a bunch. Here are just a few resources:


There are plenty more sites out there, those are just some of the top ones.

Never be afraid to go back to a publisher and ask for clarification on a clause. And if there is a clause in a contract that you don't like? Ask to strike or change it. If they won't, don't be afraid to walk away.

12 comments:

  1. Great article, Tymber. It was incredibly informative! The scary "contract" talk has helped ebb my worries. Take care, cheers.

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    1. Thanks, Stephanie! Glad you found it helpful.

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  2. Very informative Tymber. Thank you x

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  3. Very useful. I'm a long-time blogger considering a book and I will admit up front that I am completely clueless about how this all works. This was very helpful as are the links.

    Merci!

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    1. Contracts are definitely tricky, but not impossible. Just don't show fear. LOL :)

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  4. I always get good information from you. With all of the things a writer has to do, deciphering legalese ranks up there with 'yuck'. Thanks for sharing & removing some of the fear.

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  5. Nice article Tymber. I might add that authors should look for reversion of rights clauses and what the publisher's responsibilities are to the author and in the case of material breaches, what remedy does the author have. Also, specifics with regard to author copies, editing, proofing, formatting, etc. A seven year or more contract is outrageous, in my opinion. Two to three years is comfortable. I'd also say, negotiate the Right of First Refusal out of the contract. Those clauses are insidious. You agree to the same terms for each book in a series, without knowing how well the first book will sell. That one bit me hard with the Sapphire Club series.

    In my recent experience with a disreputable publisher, these issues are addressed in their contract, but they regularly breach but they don't see anything as a breach, including non-payment. That doesn't mean, however, that the law feels the same way.

    Many contracts are not author friendly. Don't let your excitement at the offer override your common sense.

    Along with Googling contract red flags, authors, please Google publisher names and read carefully. Your work, your time, your royalties, and your reputation depend upon a few hours research, before you sign on the dotted line.

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  6. Fabulous info, Tymber! Thanks for this. :)

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  7. Thank you for the fabulous post. Sadly I just had to share it again today. Another small press popping up and going the way of others. It's just not good.

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