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"What's Past Is Prologue." - William Shakespeare

Thursday, May 05, 2011

J. Gunnar Grey - Reading an Epublishing Contract

J. Gunnar Grey is guest blogging! She has been my critique partner for several years, and she's a great writer. For more information about the author, please scroll to the bottom of the article. Enjoy!

Reading an Epublishing Contract by J. Gunnar Grey

So the epublisher loves your story and wants to publish it. She forwards you a contract. You start reading and it's gobbledygook. There's no substitute for a good contract or intellectual property attorney, and I certainly don’t claim to be either. But here are some of the paragraphs likely to be included, what they mean, and what you should avoid.

First the contract should specify what it covers. This includes the name of the publishing company, the author's real name, the title of the manuscript, and the contract date. The date is important because contracts of this sort are bound by a time limit. More on this later.

Second is usually the publishing rights, which the author is granting to the publisher. This can take a number of forms, such as exclusive world rights, English language rights, North American rights, and so on. Rights can be further broken down by media, e.g., print-on-demand (POD) paperbacks, traditional print run trade paperbacks, audio formats, or the most popular right now, readable (text) digital format.

It used to be the case that authors jealously guarded their rights, selling different rights to different companies in different deals, which added together to total a more attractive sum than the straight paperback advance. In fact, this was considered an important part of the agent's job, getting the best deal possible for the author across a broad spectrum of the entertainment industry, including the movie option and audiobooks. This is less important than it used to be, because most epublishers don't want your movie rights in any case. Again, more on this later.

The third section generally covers what the author guarantees the publisher, and that's a manuscript that's free and clear of encumbrances. The author must warrant (guarantee, in layman’s English) that no one else has any right to the story. If it was previously published, all rights must have reverted to the author, who will generally be asked to provide written proof of this reversion.

Other paragraphs in the contract are likely to cover:
  • who provides the ISBN (usually the publisher)
  • who secures the copyright from the U.S. Copyright office (usually the author, if the author wants one)
  • who sets the selling price (almost always the publisher)
  • the conditions and percentages governing advances and royalties
  • who provides the cover art (generally the publisher but the author is often invited to submit, if he likes)
  • what happens if the publisher goes under (reversion of rights to the author) or the author dies
  • who pays taxes on the earnings (almost always each party pays their own)
  • whether the author has the right to audit the publisher’s books (if not, this is a red flag)
  • whether electronic signatures are acceptable, and
  • if there are any future disagreements between publisher and author, which state law shall govern (usually the publisher's)

Some specifics:
  • As mentioned above, these contracts are bound by a time limit, and for epublishing contracts, the duration is usually somewhere between three to ten years. While a longer duration allows the writer to build up a head of marketing steam with one company, that's assuming the two parties continue to get along.
  • It's important to specify when the contract begins running: from the date within the first paragraph, from the signature date, or from the date of the title’s release by the publisher. Theoretically, it's possible for a publisher to tie down the rights to a book and never publish it, if the contract runs from the release date. But before becoming paranoid, note that the publisher would have little to gain by such behavior, certainly not money. (Although that could be a lovely cozy mystery, couldn’t it?)
  • The writer should also note who has the right of final approval of the manuscript, him or the publisher, and whether his input is required for substantive changes. If an editor will be hired, who pays for her services?
  • The writer should maintain control of his name or pseudonym, his characters, and his career. The publisher may request a sequel, the right of first refusal (meaning she wants to be given first crack at any sequel or book featuring the same characters), or some deal of that sort.
  • There's usually a clause of mutual indemnification in these contracts. That means if anyone sues the publisher, this third party has no right to go after the company’s writing stable. Or if someone sues the writer, the third party can’t also attack the publisher through the contract.
  • Another clause is likely to cover who's allowed or required to take action in the event a third party infringes the book’s copyright.
There are so many possible red flags, there's no way to list them all. But here are some of the more common or outrageous ones.
  • The so-called "rights grab." This is where an epublisher ties down rights she has no intention of exercising, such as those for foreign languages or movie production. These are potentially lucrative avenues for the author, easily capable of replacing the advance (if the publisher doesn’t offer one). Note that if the publisher does intend to exercise these rights, and this is spelled out in the contract with a member of staff assigned to the project, it's not a grab.
  • A ridiculously long duration. Epublishing contracts are not meant to last forever and even ten years is seen as lengthy in this fast-changing environment. Twenty or thirty years, the length of the copyright, and "in perpetuity" all qualify as ridiculous.
  • Ownership of the characters. It's fair to say that an epublisher is merely renting the rights to your book for a set length of time. Any demand to own or control the characters or the serious is not a good thing.
  • Ownership of the author’s career. I'm not kidding.
  • Finally, any required transfer of money, time, or work from the author to the publisher. This does not include marketing, which is a necessary evil at any level of publishing shy of James Patterson or Janet Evanovich. It also doesn't include any volunteer effort the writer may put into the firm, such as a blog hop for all the house's authors. But if the publishing company requires its writers to pay for publication, that's a vanity press and it’s one of the reddest flags of all.
Some epublishing contracts are straightforward and easily understood, but others are complex, professionally prepared, tight legal instruments. There's something to be said in favor of a company that utilizes a basic contract, as it implies a willingness to be flexible and work out issues with its writers. But there’s also something to be said for a company that wants no grey areas where misunderstandings can form. Each writer considering such a contract should only sign if he's comfortable with the terms. And it's worth repeating—if there’s any doubt, there's no substitute for a legal beagle on your side.

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About the Author

J. Gunnar Grey has never wanted to be anything except a novelist, so of course she’s been everything else—proofreader, typesetter, editor, nonfiction writer, photographer, secretary, data entry clerk, legal assistant, Starfleet lieutenant commander, stable manager, dancer—and no, not that kind of dancer. Her long-suffering husband is just excited she’s actually using her two degrees, one from the University of Houston Downtown and the MA in Writing Popular Fiction from Seton Hill University. Gunnar writes novels that are mysterious, adventurous, and historical, but all sorts of other stuff can leap out of that keyboard without warning.

The first part of her novel, Deal with the Devil, is currently available from Astraea Press, Amazon, and Barnes and Noble (and you should go buy it - it's a great read!). She also published a handy book that every writer in e-publishing should have: Format Your eBook the Free and Easy Way.

You can also find her on Facebook and Twitter.

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NEXT UP: Writing Prompt - Chain Stories.

1 comment:

  1. Nice summary!! Great info, too. Thanks for "'splaining."