Clauses Coming to Town

As a humble service to authors who are considering hiring a you-pay (vanity) publisher, I’d like to offer my comments on a draft contract that was sent to me this afternoon. I have removed all identifying information from the contract and added my own comments, but I have not altered the text in any way.

As a caveat, note that I am not a lawyer and am not qualified to give legal advice! However, I have negotiated several contracts with publishers myself, without the aid of a lawyer or agent. My guiding principle is that if you don’t know exactly what a term means, you would be well advised to seek clarification from an attorney. You’ll find a bit more discussion of this at the end of this post.

There’s a great deal about this contract that concerns me. I’ve flagged the obvious stuff, but I may have missed a few relevant bits.

***

Dear James Aikin,

I am pleased to confirm that your manuscript, Xxx Xxx Xxxxx, has been selected for publication by [Name of Publishing Company]. [This brief cover letter ignores the fact that I haven’t sent them a manuscript at all. I only asked to see their contract. It may or may not be a valid inference that they’ll send a contract that’s already signed by the head of their company to anybody who talks to their salesman.] Below is the basic agreement for publication. Please sign and return the final page of this document. If you have any questions, feel free to contact me.

Congratulations and welcome to [Name of Publishing Company]!

Sincerely,

Executive Editor

[Name of Publishing Company]

This publication agreement (“Agreement”) is made April 6, 2022, between James Aikin (“Author”) and [Name of Publishing Company] (“Publisher”) with respect to the book provisionally entitled Xxx Xxx Xxxxx (“Book”). [As an aside, at no time in my dealings with them did I identify myself as “James.”]

1. [Name of Publishing Company] agrees to act as Publisher for the Book, and the Author retains all rights to the Book, including rights to any derivative work arising from the original Book including but not limited to adaptations, translations, screenplays, teleplays, television serials/series and stage plays, courses, workshops and any products and other materials. [Missing from the contract is the standard paragraph stating in what jurisdiction disputes will be resolved. I’ve never seen a publishing contract without such a provision, which strongly suggests this contract wasn’t drawn up by a lawyer. Also missing are the author’s warranties and the indemnification clause in which the author agrees to hold the publisher harmless from any claims made. I would never suggest adding an indemnification clause to a contract if the contracting company omitted it, because such clauses are vile abuses of the legal process, but the fact that it’s not there tells us, again, that this contract was not drafted by a lawyer. Another missing element is the standard reference to the heirs and assigns of the author and publisher, who shall be bound by this agreement. Finally, there’s no language specifying what happens if the publisher takes the author’s money and then fails to publish the book. It says (near the end) that the author gets a full refund if the company terminates the agreement, but it never says what happens if the company does NOT terminate the agreement but fails to publish the book. Also, termination clauses usually refer to the receipt of a registered letter. A lawyer would have inserted that language.]

2. The Author asserts that the Author is the sole proprietor and owner of the Book, and has the right to publish all elements of the Book provided by the Author. For elements of the Book not owned by the Author, Author takes responsibility for rights acquisition and proper crediting. [Missing from this section is any stipulation by the author that the book has not been previously published. I would hazard a guess that an author-subsidized publisher may not care about that.]

3. [Name of Publishing Company] will utilize distribution sources affiliated with their printer to market Book to other outlets. [The terms “utilize” and “other outlets” are undefined, as is “partners” in the following sentence; and the printer is not named. Given that print copies will be print-on-demand through unnamed outlets, it’s not even clear what the term “printer” means in this clause.] Current partners include Amazon, Ingram, and myriad other retailers. These affiliations may change and [Name of Publishing Company] will only use distribution and printing partners actively in use by [Name of Publishing Company] at time of publication.

4. Cover and interior design, as well as editorial decisions, are collaborative efforts, in which [Name of Publishing Company] will be dedicated to Author’s happiness [The term “author’s happiness” is meaningless. It’s inserted in the contract as a sop to naïve authors.]with the outcome. With this in mind, [Name of Publishing Company] will solicit input from Author on design and editorial moves, and will not go to press with a design or final text that Author does not approve. [The term “editorial moves” is not only undefined, it’s weird. Perhaps they wanted to avoid the term “editorial changes” because it might alarm those naïve authors.]

5. Unless otherwise agreed to by the Author, [Name of Publishing Company] agrees to make no more than ten percent (10%) of the Book viewable on the [Name of Publishing Company]’s website, or partner websites that have entered into agreement with the [Name of Publishing Company], in order to facilitate sales of the Book.

6. As part of Author’s financial contract with [Name of Publishing Company], Author agrees to pay $4200 (all figures in US Dollars) for all hereafter stated editorial, design, publication, and promotion services. This is payable in either one or two installments; if one, upon receipt of this contract, and if two, half upon receipt of this contract and the second half prior to the ordering of a hard proof copy. The Author also reserves the right to make the payments in installments, with editorial services beginning after ½ the complete balance is paid, and the hard proof copy ordered after the complete balance is paid in full. [Per my phone conversation with the salesman, the figure of $4,200 is for a novel of 100,000 words. The salesman was told several times that my novel will be substantially longer than that, but the draft contract he sent makes no provision for variable length, either up or down. As a result, if I did actually sign the contract, they would be on the hook no matter how long the manuscript was.]

7. For the fee above, [Name of Publishing Company] agrees to provide the following:

Editing

a. Two rounds of developmental editorial evaluation emphasizing big-picture recommendations for content, flow, consistency, accuracy and structure based on target audience and purposes of book which will be provided via: 1) written commentary and 2) a phone conversation. [The meaning of a “round” is undefined. Neither the name of the editor nor the editor’s qualifications is specified.]

b. After Author revision, [Name of Publishing Company] will accept editorial changes recommended and agreed to by Author and editor. [This is very tricky, or just badly worded, but I’m betting on tricky. It states that the editor must agree to changes. This clause could give the publisher an opportunity to demand unreasonable changes in the text.]

c. One round of proofreading by a professional proofreader for the purpose of minimizing textual errors will take place prior to layout design and interior finalization, and Author assumes final responsibility for the accuracy of the text. [In other words, “Our proofreader could be a high-school dropout. We assume no responsibility for poor proofreading. That’s the author’s lookout.”]

Cover Layout and Interior Design

d. Full layout of paperback cover design—front, back, and spine—with up to three rounds of pre-publication revision included. [Having gone about ten rounds with one of my cover designers, I would have to say this is flagrantly inadequate. Plus, there’s no mention of multiple rough designs for the writer to choose among.]

e. Full layout of interior design of the book including front matter, back matter, and author text. [No mention here of any requirement that the author approve the interior design. Also no mention of any checking of the e-book formatting.]

f. Implementation of design concepts of the interior including advising and placing of no more than thirty externally contracted/created illustrations, photos, charts, graphs, sidebars and/or graphic elements.

g. Upload of final cover files and manuscript files to printer/distributor.

Indexing, Publishing, and Title Set-Up

h. Account setup and upload of all metadata to Ingram, Amazon, etc. for print-on-demand and global distribution.

i. Conversion of manuscript to e-book format and upload of e-book to Kindle and any other venues [Name of Publishing Company] deems suitable. [The contract never states what retail price these venues may choose, or what percentage of the retail price will be paid to the author. If the publisher “deems suitable” a venue that offers the book for free, the author has no recourse.]

j. Purchase and registration of ISBN(s), if ISBN(s) are not already provided by the Author.

Book Promotion

k. A one-on-one phone call with a dedicated digital presence specialist to discuss your Book’s non-print presence, audiobook viability, and author website opportunities and strategy. [One phone call? No indication of the length of the phone call or the identity of the “specialist.”]

l. A one-on-one phone call [See previous comment.] with a dedicated marketing and promotion specialist to discuss sales strategy, pricing, supplemental promotional opportunities, and release schedule for your Book.

m. Author’s ability to opt-in to the Author Connect program, which links [Name of Publishing Company] authors with each other for teamwork and promotional purposes. [A service for which there may, I would infer, be additional charges.]

n. Advertisement including inclusion of the Book on [Name of Publishing Company]’s website.

o. Promotion of the book on [Name of Publishing Company]’s social media platforms. This includes [Name of Publishing Company]’s sharing of book news, events, successes, and announcements that you provide.

p. Consideration for inclusion [Utterly meaningless.] in [Name of Publishing Company]’s exclusive monthly newsletter, which has a subscriber base of 15,000 monthly recipients.

q. A 25-page tutorial document on how to navigate authorhood, including advice on launches, readings, tours, libraries, bookstores, and reviews.

r. A database of more than 1000 bookstores including contact information, which can help in setting up tours and getting your Book stocked.[Ridiculous. Is the database current? This item is strictly designed to dazzle the unwary author. It doesn’t mean that a single bookstore will ever stock your book.]

Other Agreements:

8. Author copies are to be available to the Author at manufacturer cost, with the Publisher applying no cost markup. Author is not obligated to purchase any copies. [The term “manufacturer cost” has an unknown meaning. Nothing in the contract refers to the retail price of the book, nor to the percentage of the sale price that the author will receive.]

9. The Publisher will take no royalties on book sales; 100% of sales proceeds will go to the Author, and are payable quarterly, on the 15th of January, April, July, and October, for any royalties amount greater than $100. Royalties amounts less than $100 will be compiled and disbursed in full once they exceed $100. [If your book tanks, they can keep your $97 indefinitely in their bank account and never disburse it to you. Also, I’m wondering if “payable” means the same thing as “will be paid.” I could be wrong about that; I’m not a lawyer.]

10. For security and record-keeping’s sake, financial transactions are best conducted through the [Name of Publishing Company] website’s payment portal. Venmo (@xxx) and PayPal (xxx@xxx) are also acceptable, as are personal checks made out to [Name of Publishing Company], and sent to [address of Publishing Company]. Publisher will pay Author through PayPal or other mutually agreed-upon channel.

11. Although rare, Publisher reserves the right to delay publication until Author remediates text elements considered to be unduly harmful to readers on the basis of hate, abuse, libel, gender, sexuality, race, ethnicity, religion, disability, pornography, or incitement to violence. [This could mean anything. Note the inclusion of religion among the things that might be construed (by the publisher in its sole discretion) as “harmful.” This could mean, for instance, that any criticism of Christianity, however mild, could delay the publication of the book indefinitely unless the author agrees to remove it.]

12. Editorial and design changes to the Author-approved Book (beyond typo correction) after upload to the printer are available for a fee of $500. [I can upload a replacement file to Amazon for free with changes that go somewhat beyond fixing typos. $500 is way too much for administrative overhead.]

13. Book will remain in print [This is an undefined term.] indefinitely and for no less than three years, the “print run” adaptive and unlimited, with copies printed as they are ordered and at the expense of the buyer. The Author is not required to fund prepayment of a print run, and will not be subject to annual print availability fees. Publisher is not responsible for printer or postal error, and Author is free to utilize other print and distribution options at his or her discretion.

14. Publisher can offer website-building and other additional marketing and promotional services and opportunities to the Author. It is at the Author’s discretion whether these services are utilized.

15. Outside of scheduled phone calls, communication between the Author and Publisher is best conducted through email, not text message or phone, as email keeps a stronger record and enables publishing team communication. Publisher will aim to respond to all messages within three business days. [Aiming to respond? This is a meaningless phrase.]

16. Modification or Amendment. This Agreement may be modified or amended only with the written consent of all persons who are parties to this Agreement.

17. Either Publisher or Author may terminate this Agreement at any time. If the Publisher terminates the agreement prior to publication for any reason, including business bankruptcy or closure, Author is eligible for a full refund of any fees already paid; if the Author terminates the agreement, Author is eligible for a $200 refund of any fees already paid. Upon termination, this Agreement shall automatically dissolve. [This is truly slimy. What it says is, if I pay them the full amount but they fail to publish the book for any reason, I only get a $200 refund. Also, is “eligible for a full refund” the same thing as “will receive a full refund”? I don’t know.]

18. This offer within the contract is valid for two months from April 6, 2022, after which it is renewable with same or different terms upon mutual Publisher and Author interest.

19. To reduce risk for both parties, and to encourage a congenial atmosphere of open discourse and friendliness, the signees of this contract state their good faith to avoid breach, and to resolve items of debate amicably, honestly, and openly. [This is charming, but it’s meaningless in any legal sense.]

***

So there you have it, folks. Make of it what you will. Just to be clear, I’m not trying to imply that this particular publishing company is doing anything even remotely under-handed, much less illegal. They could be very competent! Nor am I trying to imply that their contract is any worse than any other author-subsidized publisher’s contract. For all I know, this contract may be way above average. All I’m saying is, these are the kinds of things that a novice author needs to think about before signing anything.

This publisher might be a good fit for you, and you might be very happy with the outcome. But it’s up to you to educate yourself about what might or might not happen pursuant to an agreement with a publisher. If you’re in any doubt at all, please — don’t be guided by anything I’ve said, or failed to say. Consult an attorney who is knowledgeable about publishing law.

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