Creating an author-publisher contract can be a time consuming and, perhaps, awkward process. This is because there are no formulas for writing a contract, only guidelines and standard industry practices to help lead parties in the right direction. Contracts can change from author to author, publisher to publisher, and even from book to book (Levin, 2002). Certainly, a new, likely young, fiction writer will not have as much bargaining power when up against the Goliath publisher who claims to know more about the business. Actually, this claim rightfully belongs to the publisher (in the case that the publisher has published books previous to the one our prototype new, young fiction writer is offering). An author trying to break into the business of producing books only has a publisher to lean on (in most cases, and it will be assumed so for the purposes of this essay). So in a sense, the new author should be ready to make compromises and not be too difficult to work with, following the ‘norm’ of industry practices while being confident enough to not permit being taken advantage of (for this an agent is useful, and recommended). Truth be told, the publisher, even if not proven to be a good one yet, has many other sources from which to obtain a manuscript (Woodward, 2007). Yes, publishers need authors to survive, but there are far more ‘authors’ in the world than there are courageous businesspeople willing to enter the realm of book publishing. The author should keep this in mind when signing a contract. This essay will cover the two most fundamental matters discussed on the contract table: formats and territory. It will look at the issues from both the publisher and author’s side, assuming the publisher to be a small independent Canadian press and the author a new, young fiction writer.
While describing the Copyright Act, Levin says that “the author is the proprietor (owner) of all rights in the literary work…and the owner of all derivative rights.” In addition, Levin makes the important point that “any right not granted in writing [to a publisher] is automatically retained by the author” (2002). The contract is the “writing” that legally allows a publisher to reproduce the work in whatever specified form, which, in this case, is a book, but can also include subsidiary rights that reshape the book in order to squeeze the most profits out of the work (Woodward, 2007, Levin, 2002). The author may decide the time frame to which a publisher may reproduce the work, but usually the entire life of the copyright is given (Levin, 2002). The publisher invests a lot of time, energy and money into a work to make it publishable, and therefore can argue that full copyright and as many grants as possible be handed over (Finkelstein, 2005). However, in cases where the author cannot be sure that the publisher will make use of all the rights granted, it is advisable to “impost a time limit on the publisher’s window of opportunity,” according to Finkelstein (2005), and backed by Levin (2002). This is usually a compromise made when parties cannot agree on a clause. Where an author is a new one and a publisher small and independent (and Canadian), it is advisable that the author take advantage of the time cap strategy since the capacity of the publisher is unpredictable in the event the book explodes into a best seller. Perhaps certain contacts and resources will be required to keep up with demand that only a larger firm or agent can handle. According to Finkelstein, parties should “do their best to think long-term when negotiating the contract” (2005). This will ensure that the author makes the most profit possible out of the work while it keeps the publisher ‘on top of the ball’ by not delaying the production process, which can cost both the company and the author. However, while keeping this in mind, the author should also remember publishers’ stand on the matter, being that without the contribution of publishing services there would be no explosion of the work at all, and the publisher therefore deserves ‘a piece of the pie’ (Levin, 2002, Finkelstein, 2005).
Sometimes, it may also be wise to consider cost and profits when granting the rights to publish the work in certain forms. Levin gives the example of the hardcover-softcover deal. This type of agreement happens when a publisher produces both hardcover and paperback books and is advantageous for both the publisher and author. The publisher gets a deal because it is more economical to pay a larger advance in order to obtain rights to all three forms (hardcover, trade paperback and mass market paperback). The author, in turn, not only gets the larger advance, but also keeps all the royalties for the paperback editions when normally those profits would be split between both the publisher and author since a third party would be in charge of publishing in softcover, thus taking a cut of the deal (2002). Any author, whether new or matured, should opt for such a deal. Finkelstein also gives an example where costs can be reduced and profits maximized in allowing a publisher the right to make the work part of a book club. In the event that a deal is struck with a publisher and book club before the work goes to print, including the book club’s order in the print run will reduce unit cost. However, if a book club simply purchases books after the print run, a discount is involved which hurts both publisher and author (2002). Therefore, it is advisable, especially for a new author, in cases like this, to allow the publisher to have these rights since the publisher is in charge of printing in the publishing process and is in a position to negotiate with book clubs.
When considering the matter of territory in a contract, again “the only issue is the ability of the publisher to exploit the rights” (Levin, 2002). When a book is to be published in the English language, it makes sense that the publisher should be able to keep the rights to sell the book in other English-language countries, or at least use international contacts to do the publishing there. Even when the official language of the country is not English, it should be remembered that English is an international language spoken by many throughout the world as a second tongue. According to Levin, “it is difficult for the author, especially the first-time author, to substitute her judgment for the publisher’s, even one with limited overseas contacts” (2002). Therefore, it is advisable that the new author grant the small independent Canadian publisher the territory rights to at least English language countries. As mentioned before, if any uneasiness exists, a time cap can always be put in place so that if the publisher fails to live up to the author’s expectations, the author can have these rights back after a certain deadline and then go about spreading the work into new territory by other means (Levin, 2002).
When also considering territory rights that may require translation, it is important to take into account a few of Finkelstein’s points. First, because a new book is easier to sell before the print run to foreign publishers who are looking for “an exciting new discovery,” it is advisable to also grant these rights to the publisher. The publisher will already be marketing the book in catalogues and starting the investment process to make the book available to readers. The author will benefit from an early sale of rights, and thus royalties. Also, if the author is not in a position, or is not motivated to extend the book’s reach into other languages (perhaps because the nature of the book may at first seem unsuitable for such purposes), it is good to let the publishing company keep it on its catalogue list. That way, there is always potential for it to be spotted by outsiders looking for a new title for their market (Finkelstein, 2005). Just as it is not reasonable, or profitable, for a publisher to keep ‘dormant’ rights, it likewise makes no sense for an author to cling to rights that are simply ‘sitting on the shelf’. In these instances, the place where the right can receive the most light is the best place for it to be.
In conclusion, it is believed that an author should grant rights to a publisher where the publisher is fit, able and motivated to exploit the work in that form better than if the right were kept by the author. The author should remember that the publisher is in the business of publishing and, generally, will be in a better position to use the rights effectively. On the other hand, a publisher should not bargain for more than necessary, especially when certain rights are out of the league of the company. In that case, the author should be on the defensive.
Finkelstein, J. (2005). Blueprint for a Book: Formulating a Meaningful Author-Publisher Contract. In Lorimer, R. et al. (Ed.), Book Publishing 1 (pp. 43-72). Vancouver, BC: Canadian Centre for Studies in Publishing (CCSP) Press.
Levin, M. (2002). Creating contract literacy. In Be your own literary agent: The ultimate insider’s guide to getting published (3rd ed., pp. 131-154). Berkely, CA: Ten Speed Press.
Woodward, R. (2007). The Publishing Process: CMNS 372-4 Study Guide (pp.49-62). Burnaby, BC: Simon Fraser University.