The Fine Print

If you aspire to have your book published by a real publisher, and if you’re lucky enough, persistent enough, or talented enough to reach that goal, you’ll find your eyes crossing as you scrutinize the fine print in a contract. If you have an agent, you’ll have a source of good advice on how publishing contracts work. Or at least, we can hope you will. But what if you’re on your own? A friend of mine is probably about to be offered a contract direct from a publisher, whom she queried directly without having an agent. I offered her a few suggestions.

Just to be clear, I’m not an attorney. I cannot offer legal advice! However, I have negotiated several book contracts for my nonfiction books without the aid of an agent or a lawyer. So perhaps I can offer a couple of thoughts. Scrawling your signature at the bottom, scrunching your eyes shut, and hoping for the best is not a recommended procedure. The more you know, the better position you’ll be in to negotiate a deal that will be fair.

First, it’s a mistake to assume that you know what certain specific terms mean. A term may have a legal definition that is quite different from what you or I would expect it to mean. I’m pretty sure a search engine will help you work this out, but advice from an attorney, while more expensive, will probably be more reliable than a random website or blog.

Second, you absolutely need what’s called a reasonable “reversion of rights” clause. This clause specifies that in certain situations (such as the publisher’s failure to publish the book, or if they allow it to go out of print), after a reasonable period of time all rights will automatically revert to you. And bear in mind, in the digital age, “out of print” can mean almost anything. If a downloadable e-book is still on their website but the print edition has become unavailable, is it “out of print”? This is the type of question that you need a knowledgeable attorney to answer — and that would be an attorney who is specifically knowledgeable about publishing law in your country, not just any old attorney.

Third, if the contract says you’ll be “consulted” about certain things, such as the cover layout or even editorial changes, that’s meaningless. They can “consult” you and then go ahead and do whatever they feel like, ignoring your input.

Fourth, the contract should state specifically what rights they’re acquiring. The lawyers who draft contracts for publishers are in the habit of inserting language that allows the company to grab anything that’s not nailed down. (This is the attorney’s job, in fact. They would be negligent if they didn’t attempt it.) If the rights they’re proposing to acquire seem too broad to you, you may be able to negotiate changes in that part of the contract.

Fifth, in principle everything in a contract is negotiable if you haven’t yet signed it. Don’t sign it before you know what you’re signing.

Sixth, some things the publisher will not budge on. One of those things, in my experience, is your warranty and promise of indemnification. This is a nasty bit of legalese, but I would not expect any publisher to be willing to compromise on it. The idea behind indemnification is that you, the author, are being asked to assume all of the financial risk in the event that someone decides to sue the publisher because they take exception to something in your book.

Typically you’ll be required to indemnify the publisher for any damages, including “reasonable attorney’s fees.” Attorneys’ fees are very seldom reasonable, so this phrase is an oxymoron. But what it boils down to is this: You’re being required to push all of your poker chips into the center of the table and hope that nothing bad will happen. If anything bad does happen, the money will come out of your pocket. The publisher will chip in as little as they can manage. (And their lawyers will probably be better than yours, so they’ll be able to manage.)

If you’re young and can recover from a bankruptcy, if you’re fairly sure you’re safe from any claims of copyright infringement, libel, etc., and if the publishing deal is in other respects a good one, signing a contract with a standard indemnification clause may not cause you any sleepless nights. Me, I’m an old guy with a retirement account and considerable equity in a home. That being the case, I’m allergic to indemnification clauses. This is not the only reason why I self-publish, but it’s a significant factor.

So there you go. None of that is qualified legal advice. If you want the real low-down, please — consult an attorney.

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