A Bad Publishing Contract Deconstructed, Part 2 – The Ugly Truth

See other posts in the series: Part 1 | Part 3

Okay, so we’re deconstructing THIS contract from a Maine university site. Apparently, several small start-up publishers have latched on to it and are using it as their “standard” contract for digital-first presses.

Ugh.

I’m using it as-is from the website. Some of the publishers made a few additions or changes here and there, but many of them used it as-is, except for one who now has their jurisdiction clause being governed by their home state, yet litigated over a thousand miles away in MAINE because they weren’t smart enough to change it. Remember, I’m not an attorney. This is my lay interpretation of the contract based on my reading of over 60 of my own contracts, as well as reading countless others from other publishing houses. Many attorneys are NOT skilled in publishing contracts or IP law, so find one who is.

THIS AGREEMENT (hereinafter called the Agreement) is made this ____ day of ___________, 20 , between _________ (hereinafter called the “Publisher”) and___________ (hereinafter called the “Author,” which term shall be deemed to include the Author’s executor, devisees, heirs, and literary assigns).

WHEREAS, the Author desires the Publisher to publish the Author’s work titled _______, (hereinafter called the “Work”), and Publisher desires to publish the Work;

NOW THEREFORE in consideration of the promises hereinafter set forth and for valuable consideration,
receipt whereof is acknowledged, the parties agree as follows:

That’s all pretty standard, as far as I can see.

1. Grant of Publishing Rights
A. The Author hereby grants and assigns to the Publisher, its successors, representatives, and assigns, the sole and exclusive right to publish (i.e., print, publish, and sell) the Work in the English language in all forms in the United States of America, its territories and dependencies, and Canada, during the full term of copyright and any renewals and extensions thereof, except as provided herein.

RED FLAGS!!!! Never sign a contract that blanket says “in all forms” or “during the full term of copyright and any renewals and extensions thereof.” In the United States, full term of copyright is currently life of the author plus 70 years unless it’s a work for hire.

Yes, this means you’d be signing a contract for a term THAT WOULD OUTLIVE YOU.

No. Just… NO. Make sure the contract term is LIMITED to YEARS. 2, 3, 5, 7, even 15 are all terms I’m commonly seeing for small presses.

B. The Publisher shall have the sole and exclusive right to publish or to license the Work for publication in the English language or in any other language in the United Kingdom and in any other foreign country, except as provided herein.

C. The Author shall execute and deliver to the Publisher any and all documents which the Publisher reasonably deems necessary or appropriate to evidence or effectuate the rights granted in this Agreement.

B. means you are now giving up foreign language rights. Standard language in contracts usually now state something along the lines of “worldwide English rights in ____ formats(s).” Because the Internet IS the world, unless there is a reason not to (some traditional publishing houses still have territories, so that would be a valid use of splitting the world into pies by territory in the contract) there’s no reason to get all complicated divvying things up. But do NOT give up foreign language rights unless you know for sure the house has a proven track record selling foreign rights. You stand a better chance finding an agent who handles that, or even negotiating them yourself.

C. is over-broad and not necessarily a red flag, but it is indicative of a contract that is neither well-written nor up to date by current digital press standards. Now it is common for the contract simply to state that the author warrantees the work to be free of any encumbrances, and that if it was previously published, the author can provide proof all rights were returned to the author by the previous publisher. Otherwise, what the publisher might claim is “reasonable” might mean you’re caught in a paperwork nightmare.

D. If, at any time during the effective term of this Agreement, a claim shall arise for infringement or unfair competition as to any of the rights which are the subject of this Agreement, the parties may proceed jointly or separately to prosecute an action based on such claims. If the parties proceed jointly, the expenses (including attorneys’ fees) and recovery, if any, shall be shared equally by the parties. If the parties do not proceed jointly, each party shall have the right to proceed separately, and if so, such party shall bear the costs of litigation and shall own and retain any and all recovery resulting from such litigation. If the party proceeding separately does not hold the record title of the copyright at issue, the other party hereby consents that the action be brought in his, her or its name. Notwithstanding the foregoing, the Publisher has no obligation to initiate litigation on such claims, and shall not be liable for any failure to do so.

E. Nothing contained in this Clause shall be construed as limiting, modifying or otherwise affecting any of the rights granted to the Publisher under this Agreement.

D. The bold and underline is my doing. On the surface, this would seem to be a clause about copyright infringement. Okay, however, the unfair competition wording concerns me. Depending on what else is in the contract, that could possibly be construed by an unscrupulous publisher to keep an author tied to their house by limiting who they can write for, under what pen names, and genres. Let’s keep reading.

E. Well, that’s great, but what about the author? Next.

2. Copyright
Copyright of the Work, if not heretofore registered, shall be registered by the Publisher, upon first publication, in a timely manner in the name of the Author, in the United States and in such other countries as the Publisher deems feasible or desirable, and the proper copyright notice or notices necessary to protect copyright to and in any work shall be printed on the reverse side of the title page or in another appropriate place, in every copy thereof, in the name of the Author. The Publisher shall also have the right to effect any renewals of copyright provided by law and the right to any assistance from the Author or Author’s heirs, successors, or assigns, essential thereto.

RED FLAG. No. Not only no, but HELL no. NEVER GIVE UP YOUR COPYRIGHT. PERIOD. Unless it’s a pre-arranged work-for-hire, NEVER give over your copyright. Most current standard contracts have language specifying that if the author has registered the copyright, that they will provide that info, or that the author is responsible for filing for copyright but the author’s name will be listed in the book as copyright owner, something to that effect. Many contracts also state that if the author doesn’t file for copyright it might reduce their chances for financial damage recover in case of a lawsuit. However, good publishers WILL file for (at their expense) ISBN numbers. That is different and is NOT relating to copyright. (Ironically, this contract does not mention ISBN numbers at all. Another red flag.)

Some might argue this clause says the author still owns copyright. But it doesn’t clearly state that, it says they’ll file in the name of the author, NOT that the author retains the copyright. It does NOT say that the publisher will file on the author’s behalf. Look at the end where it gives the publisher rights to renew the copyright, and the “right to assistance.” Um, NO.  Just…NO. At best, it’s poorly worded even if someone doesn’t have ulterior motives. At worst, an unscrupulous publisher will interpret this clause to give them copyright, meaning you’d have a fight on your hands to get your book back.

3. Author’s Warranties and Indemnity
C. If the Author unreasonably disapproves of any out-of-court settlement recommended by the Publisher and the claim or suit proceeds to trial, the Author shall be liable for all the Publisher’s fees, costs, damages, and expenses connected with such trial regardless of outcome. The Publisher shall have the right to reasonably extend the benefit of the indemnities to any person, firm, or corporation at any time, and the Author shall be liable thereon as if Author’s warranties were originally made to such person, firm, or corporation.

D. The provisions of this Section 3 shall survive the termination of this Agreement.

I don’t see anything too bad with clauses A. and B. (which is why I didn’t copy them over) in section 3, even though they aren’t exactly standard language. It’s not uncommon now for there to be contracts with language stating the publisher can withhold payments to the author if there is pending litigation.

However, C is another HONKING red flag. “If the author unreasonably disapproves.” Who determines that? So if you aren’t happy the publisher rolled over, they can make YOU foot the bill for everything. And, as I read this clause, it means the publisher can basically sell off the debt they claim that the author owes them to a third party. Sooo… NO. Just no.

And as far as D, well, of course they want those to survive. They want to protect their interests and screw the author. I’m always leery of these kinds of clauses. An IP attorney might tell you they’re standard and allowable. In a situation like this, I’m not so sure. I would make sure to consult an attorney about it.

4. Delivery of New Work Manuscript
A. The Author agrees to deliver to the Publisher one (1) copy of the final manuscript of the Work, in content and form satisfactory to the Publisher, on or before _____________________, 20 , (hereinafter referred to as the “Initial Delivery Date”), in proper shape for the press. The Author agrees that one (1) additional copy shall be delivered on floppy disks, formatted to be compatible with Microsoft Word, Version . The Author agrees to make and keep at least one (1) complete copy of the manuscript and such disk. Failure to deliver in all respects as defined herein shall be just cause for the Publisher to terminate this agreement.

No, I’m not punking you. It actually says “floppy disks.” Yes, I know that some current contracts still mention floppies in the context of providing files to third-party sites for selling them. Again, sloppy, sloppy, sloppy. Not a current contract. Do you really want to sign a contract for a house that is supposed to be on the leading edge of technology that uses language like this? And if they say, “Oh, that’s not what we mean, the contract just says that,” then demand they change the contract to reflect what they DO mean before you sign it. NEVER take someone’s word when it comes to contractual matters. If they’re legit, they’ll put it in the contract. If they say, “Don’t you trust me?” Tell them the truth: NO, you do not trust them, and walk away.

B. The Author shall deliver to the Publisher, not later than the Initial Delivery Date unless otherwise designated by the Publisher, each of the following materials:

i) The Author shall deliver to the Publisher, at the Author’s sole expense, written authorizations and permissions for the use of any copyrighted or other proprietary materials (including but not limited to art and illustrations) owned by any third party which appear in the Work and written releases or consents by any person or entity described, quoted or depicted in the Work (hereinafter collectively called the “Permissions”). If the Author does not deliver the Permissions, the Publisher shall have the right, but not the obligation, to obtain such Permissions on its own initiative, and the Author shall reimburse the Publisher for all expenses incurred by the Publisher in obtaining such Permissions.

ii) The Author acknowledges and confirms that the Publisher shall have no liability of any kind for the loss or destruction of the Manuscript or any other documents or materials provided by the Author to the Publisher, and agrees to make and maintain copies of all such documents and materials for use in the event of such loss or destruction.

C. If the Publisher, in its sole discretion, reasonably deems the Manuscript, and/or any other materials delivered by the Author to be unacceptable in form and substance, then the Publisher shall promptly advise the Author by written notice, and the Author shall cure any defects and generally revise and correct the Manuscript and/or other materials to the reasonable satisfaction of the Publisher, and deliver fully revised and corrected Manuscript and/or other materials promptly after receipt of the Publisher’s notice.

D. If the Author fails to deliver the Manuscript or other materials required under this Agreement, and/or any revisions and corrections thereof as requested by the Publisher, on the dates reasonably designated by the Publisher, or if the Author fails to do so in a form and substance reasonably satisfactory to the Publisher, then the Publisher shall have the right to terminate this Agreement by so informing the Author by letter sent by certified mail, return receipt requested, to the address of the Author set forth herein. Upon termination by the Publisher, the Author shall, without prejudice to any other right or remedy of the Publisher, immediately repay the Publisher any sums previously paid to the Author, and upon such repayment, all rights granted to the Publisher under this Agreement shall revert to the Author.

RED FLAG: B. i) and ii) don’t look problematic on the surface. However, it’s nonstandard, and anytime you sign a contract where you allow the publisher to charge YOU for anything without a set dollar amount already established, that’s an opening for you to be fleeced. The only time it’s acceptable for a publisher to charge an author in a contract is when specifying how the author can buy author copies. (Not that they must buy them, either.)

C. doesn’t look too awful, it just means you’re going to edit.

RED FLAG: D. It basically means if you’ve received an advance, they will hold your rights hostage. Now, again, some might say, well, that’s for an advance. Okay, fine. However, there is enough wiggle room in here an unscrupulous publisher could conceivably try to hold you hostage for a kill fee and for “expenses.” Yes, an attorney would get you out of it, but do you have an attorney handling it for you? Do you have the money to get an attorney? Or do you pay their extortion? Again, you need to KNOW YOUR CONTRACT. If you were paid an advance, you’d have to pay it back. It doesn’t say anything else about other expenses in this clause. (But it does elsewhere, so again, you have to be careful what an unscrupulous publisher might try to pull.)

5. Author Changes to the Work
The Publisher agrees to allow the Author to makes changes in the Work, at the final proof stage, costing up to an amount of Two Hundred Fifty dollars ($250), other than for corrections of compositor’s errors. Should the cost of such alterations exceed this sum, the balance will be charged to the Author’s royalty account, provided, also, however, that the Publisher shall promptly furnish to the Author an itemized statement of such additional expenses, and shall make available the corrected proofs for inspection by the Author. The Author agrees to correct and return, no later than ten (10) days after the receipt thereof, proofs provided by the Publisher. The Author agrees to deliver to the Publisher final revised copy satisfactory to the Publisher in content and form.

RED FLAG: NO. In today’s digital world, if they’re a legit publisher, they can get changes made to the proof copies for nothing, in most cases, when we’re talking about digital versions. Print might be a different matter, but not to this extent if they’re using POD. (If they’re a traditional publisher, maybe, but with today’s digital age, again, I doubt it.) If they’re using an outside formatting service, maybe they will charge, but again, this is extreme. None of the contracts I’ve ever signed have a clause like this in them. And it’s a red flag about being able to charge the author for expenses. Expenses are supposed to be incurred by the publisher. Who’s to say they won’t take and  inflate them and charge them back to you and scam you out of royalties? (Oh, yeah, that pesky trust issue.)

6. Style, Price, Promotion, Distribution
A. After consultation with the Author, the Publisher shall have the right, but not the obligation, to publish and re-publish the Work at its own expense in such format and style, cover or covers, manner, and advertisement, and at such price, as it deems suitable except that the initial publication shall be with a title and price agreed to by the parties in writing.

RED FLAG: Basically, this could be interpreted to mean they could keep publishing this book over and over again and change the title and cover. Remember the earlier clause about “life of copyright?” Not to mention it is now common practice for the publisher to set the price and to have that ability spelled out in the contract. It’s to avoid a stalemate of the author protesting a price point. However, it also means they shouldn’t be charging the author for advertising/promotions. (One of the publishers I’ve seen contracts for has whacked authors for advertising fees when they were verbally told they would not pay for advertising.) Note: It’s not uncommon for a publisher to make a statement about a period of time where they won’t lower the price point of the book for X number of months. But usually it specifies the publisher has the right to set, raise, or lower the price.

B. If the Publisher wishes to make editorial changes or deletions in the Work manuscript, it shall consult with the Author prior to publication about these changes, and if the Author and Publisher cannot agree on the changes or deletions, the issues at question shall be decided upon by a mutually chosen third party. The Publisher reserves the right to reject the Work for any reason, up until , 20 , with written notice to the Author.

RED FLAG: It’s common now for contracts to specify the publisher can correct minor typographical errors. (Frankly, if the formatter finds I forgot to close a quote, or wrote “to” when I meant “too,” I don’t want publication held up for that.) However, the whole “mutually chosen third party” thing gets me. Yes, arbitration clauses are common for contract issues. I get that. But for editing?

C. The Publisher agrees to publish the Work within eighteen (18) months from the date of this contract. In case of delays from causes beyond the control of the Publisher, or in case the Author fails to return proofs within ten (10) days after they have been delivered to her, the period shall be extended to cover such delays. Should the Publisher fail to publish the Work before the expiration of said period, except as provided herein, its failure to do so shall be deemed cause for the Author, if he so desires, to terminate this Agreement.

RED FLAG: What delays do “beyond the control of the Publisher” refer to? Fire? Flood? Famine? My boyfriend left me and I haz a sad? Um, NO.

7. Advertising and Promotion
A. The Publisher shall have the right to use, and to license others to use, the Author’s name, image, likeness and biographical material for advertising, promotion, and other exploitation of the Work and the other rights granted under this Agreement provided the Publisher has obtained the Author’s approval which shall not be unreasonably withheld to said use and exploitation.

B. The Publisher shall have the right to determine the time, place, method and manner of advertising, promotion and other exploitation of the Work provided the Publisher has consulted with the Author, and provided that for any exploitation requiring the Author’s presence the Author’s approval, which shall not be unreasonably withheld, shall be obtained.

RED FLAG: Um, what? Okay, this clause was specifically in the contract of one of the authors who got whacked for promotions/advertising. Massive red flag there. But the whole “Author’s presence” thing, that’s a no. I’m sorry, I’m not going to sign off on anything in a publishing contract where they could require me to go somewhere they say, then get pissy about it because my feelings about what’s “unreasonable” differ from theirs.

8. Subsidiary Rights
Additional rights which the Author grants to the Publisher in the languages and within the territories specified above are:

• Reprint of the entire Work and of selections and shortened versions in anthologies and other volumes;
• first serial rights and reprint of selections and shortened versions in any magazine or newspaper;
• second serial rights and reprint of selections and shortened versions in any magazine or newspaper (provided these rights have not been retained by the purchaser of the first serial rights);
• recording and photographic reproduction of all or part of the text; dramatic (stage, radio, television, motion picture) commercial visual and/or sound presentation, reproduction, recording;
• developing or licensing for use in all other mechanical or electronic visual and sound reproducing rights of the Work now known or later invented; and
• reproduction of the text for the physically handicapped.

All sums accruing from the sale of the above rights or materials produced under those rights shall be divided so that the Author receives fifty percent (50%) of the net amount received. The Publisher shall have the sole right to negotiate and sign contracts, in regard to these rights, provided it has consulted with the Author. The Publisher may publish or permit others to publish, free of charge, such brief selections as it thinks proper to benefit the sale of the Work.

MASSIVE RED FLAG: You NEVER give a little tiny start-up publisher all these rights. EVER. And you NEVER sign off on “now known or later invented” clauses. EVER.

Here’s the other MASSIVE fail of this clause: Let’s say, for example, your book hits lightning and goes FS0G famous, ‘kay? You’ll get FUCKED. Utterly, totally, completely FUCKED, because they could create a shell company, “sell” ALLL these rights you just signed off on to that shell company for a pittance, and THEY could keep the royalties at that point. AND, WORSE, it gives the publisher the sole right to negotiate those contracts. It says rights OR materials, NOT AND. It also says 50% of the net amount RECEIVED. It doesn’t specify “50% of all royalties earned via sales of rights and of sales of materials.” So they could easily fuck you over.

Screw that little “consulted with the Author” line, that means NOTHING. That could mean they sent you a note telling you they were doing it. You SIGN AWAY YOUR RIGHTS COMPLETELY in this clause. EVIL. FAIL. BEWARE. DO NOT SIGN!!!

If you are signing with a small press, there are only TWO rights you should be comfortable giving them: English worldwide digital text rights, and English worldwide paperback/POD/mass market pb rights. MAYBE hardcover. MAYBE. And only then if they have put out hardcover versions before and you’ve seen them and they’re good quality. (I could reasonably see graphic novel or collector’s editions or something falling under this.) But I’ve never had a digital-first, POD publisher want hardcover rights. But NEVER give away other languages, and NEVER give away other rights. English, digital, paperback and that’s it. Keep repeating that.

THAT’S IT. PERIOD. FULL STOP. Do NOT give away audio rights unless they have a PROVEN TRACK RECORD of handling them. Don’t be bashful: ASK them for numbers and references. Look up the products and BUY THEM and LISTEN TO THEM. Are they GOOD audiobooks, or did their teenager do it in their garage with the dog barking next door in the background? Do NOT give away ANY OTHER RIGHTS. PERIOD. Just because they want them, doesn’t mean they should HAVE them.

9. Reserved Rights
All rights in the Work now existing or which may hereafter come into existence, except those hereby specifically granted to the Publisher are reserved to and by the Author for Author’s use.

WHAT RIGHTS??? You’ve signed over text in English and other languages. You’ve signed over motion picture and TV rights. What rights are there left??? No, seriously? WHAT FUCKING RIGHTS??  Skywriting? Smoke signals? The right to be eternally pissed off that you let them fuck you over, up the ass, without lube, a reach-around, or kissing you goodnight in the process??

Yes, that is the sound of my head exploding. The ugly truth? If you signed this contract, or a contract based upon this contract, you have been royally and soundly fucked over, and it’s time to get an attorney involved.

And on that note, keep an eye out for Part 3 in the series, coming soon, where we finish deconstructing this monstrosity. You might think it can’t get any worse…

Unfortunately, you’d be wrong.