Literary Contracts

I've been reading Kirsch's Guide to the Book Contract in preparation for the hypothetical day when a publisher offers me a book deal. The horror stories of authors who entered into Faustian bargains by signing the publisher's first offer are manifold. The tragic tale of Jerry Siegel and Joel Shuster is the classic example.

The sage advice to always read and negotiate a book contract has been repeated from many quarters, but  I didn't realize how important understanding the terms of any legal agreement is until I actually read a sample contract. Publishers have had a couple of centuries to refine their dealings with authors, whereas every new author is a private individual who's starting from scratch. As a result, most boilerplate literary contracts heavily favor the publisher.

A few deal points I've learned to watch out for are language that makes broad (or even total) transfers of rights from the author to the publisher--even rights that the publishing house can't exploit directly such as film, TV, and merchandising. Other points of contention include clauses that grant the publisher total control over the form, content, and exploitation of the work without author approval (or even involvement). Unfortunately, it seems to require a lot of clout on the author's part before a publisher will relinquish this kind of control. Sometimes arrangements like this can be good, since the publisher likely knows a lot more about marketing than the author does. However, problems can arise if author and publisher have differing ideas about licensing IPs from the book to a flamethrower manufacturer.

The stuff that really requires the author's careful attention are the warranties and indemnities. This section lays out the writer's duties toward the publisher, including guaranteeing that nothing in the book will get the publisher sued. Indemnity clauses often stipulate that if someone does bring a claim, the author has to pay the legal fees. There are other things that a careless author might be forced to pay for under a standard contract, including late revisions, artwork, additional research, proofs, etc. These clauses seem to be included as incentives for the author to do his job on time.

Finally, off-the-rack book contracts feature a whole slew of escape clauses and other conditions under which the publisher can back out of the deal. If these clauses are invoked, the author won't get an advance, or worse--will have to refund advances already paid.

Luckily, publishing is one industry in which negotiating isn't only acceptable, it's expected. There are few better ways to prove that you're an amateur than immediately signing your first contract un-negotiated. Read the document. Don't be afraid to ask questions, and don't hesitate to haggle for what you want. Chances are you won't get every deal point, but life is compromise.