Publishing A-Z

I is for Indemnification

by Steve Laube

open-book banner

Publishing is not without risks. Plagiarism, fraud, and libel by an author are real possibilities. Thus within a book contract is a legal clause called indemnification inserted to protect the publisher from your antics.

The indemnification clause, in essence, says that if someone sues your publisher because of your book, claiming something like libel (defamation) or plagiarism etc., your publisher can make you pay the fees to compensate for their losses. This is to “indemnify” which is defined as “to compensate (someone) for harm or loss.” Bottom line: The publisher has the right to hire its own attorneys (at the author’s expense) to defend against these claims.

Doesn’t sound like a happy clause does it? But you can understand why it is there. This clause and the Warranty clause are notoriously difficult to negotiate. (The Warranty clause is where the things the author guarantees or warrants are listed; i.e. the book is original, it is not libelous in content, etc. This clause will be more fully covered by me at another time) The language has been written by the publisher’s attorneys and are usually set in stone.

At the very least try to indemnify only on a final judgment or ruling for actual damages in a breach of the warranty section of the contract. Try to avoid language that reads “any claims” because anyone can sue for any frivolous reason nowadays. Normally a publisher will handle the frivolous cases and are covered by their publishing insurance.

In addition try to limit the indemnity to material you submit to the publisher. If they add illustrations, or text, or charts that trigger a lawsuit, you should not be held accountable for their additions. I know of a case where an author did not do this. The publisher put something on the cover of the book that triggered a lawsuit. The publisher looked at the indemnification clause and said “Hey Mr. Author, you get to pay these legal fees!” Cost the author $5,000 for the defense. By the way, that publisher is now out of business so you don’t have to worry about them. The author decided they should have had a literary agent and secured my services, but it was too late for the situation above. [Side note: this an illustration of those times where going alone without a good literary agent is a bad idea.]

On occasion the publisher may require that a legal reading be done of your book if there are concerns regarding your content. This was done for one of our client’s non-fiction book last year. There some highly charged things that happened to the author so because that story was being told the publisher did a legal reading. The manuscript passed the scrutiny without a hitch. But if there had been issues the publisher would have asked for changes to avoid legal action. So if your book is a memoir or a “tell-all” or something where you “name names” you should talk to your publisher and have their legal department do a reading (whether you pay for the reading or they do or a 50/50 split may be part of your contract).

If you are so concerned that you want to buy your own liability insurance for something called “Media Perils” check out these two articles by Tara Lynne Groth “Get Covered: Media Insurance for Writers” and by Daniel Stevens “Do You Need Liability Insurance?”

You might think, “I write fiction, that will never happen to me.” But what if, during your research, your assistant copied word-for-word an article on “how to start a campfire without matches in a wet forest.” You then used that material word-for-word in a scene in your book because you thought your assistant had summarized the article, not copied it. Your book is published. The author of that article notices and accuses you of plagiarism and copyright violation. An unlikely situation? A variation of this scenario actually happened to an author I know.

Remember that writing becomes a business once you enter into a contractual arrangement. So be aware and be careful.

Publishing A-Z series:
A is for Agent
A is for Advance
B is for Buy Back
C is for non-Compete
D is for Dispute Resolution
E is for Editor
F is for Foreign Rights
G is for Great
H is for Hybrid

Leave a Comment

H is for Hybrid

by Steve Laube

To state the obvious, the publishing industry has changed rather dramatically in the last few years. The possibility for a writer to inexpensively produce their own books (in e-book form) has shifted the sands. In addition the economic challenges facing the brick-and-mortar bookstore has reduced the amount of shelf-space available to launch a new book via traditional methods. It appears to be an either or choice: go Indie or go Traditional. But there is a third way, the way of the “hybrid author.”

The hybrid author is one who chooses to follow both the Traditional and the Indie routes. Thus the hybrid moniker. They are neither one nor the other, they are both. And just like the hybrid car that is a mix of both gas and electric, the circumstances dictate which form of transportation their words use to reach the public.

Our agency has a number of hybrid authors. These authors continue to have flourishing relationships with their traditional publisher and are receiving new contracts all the time. But at the same time they have certain books that they publish on their own. They are very entrepreneurial and work tirelessly self-promoting their Indie books but also work tirelessly to promote their traditional ones. Some have extremely modest Indie sales and others are quite pleased with the revenue their Indie books produce. The range of sales is rather dramatic, everything from an author who has sold less than 60 of their Indie e-books to another who is in the five figures in Indie ebooks sold. However, each of these hybrid authors continues to maintain a presence in the traditional market as well.

Read More

G is for Great

by Steve Laube

“There are a lot of good manuscripts out there. What we want are those which are great.” I’ve said this may times but thought I should elaborate. Please note the following applies mostly to non-fiction projects.

When it comes to the non-fiction books that attract the major publishers I believe the author must have at least two of three “great” things:

Great Concept
Great Writing
Great Platform

Let’s look at the various combinations to see how this plays out.

Read More

F is for Foreign Rights

by Steve Laube

Publishing is a global concern. The new Penguin Random House (co-owned by Bertlesmann from Germany and Pearson from the UK) is the largest publisher in the world. The fourth largest publisher is based in the Netherlands. (See this link for a list of the top 50 largest publishers worldwide.) There are thousands of publishers outside the U.S. most of which publish in their native language. Therefore, in most contracts, the foreign rights or translation rights are negotiated.

Some publishers have a dedicated rights division which handles the licensing of your book into other languages. Your contract defines how any income is to be split between you and your publisher. (It is usually a 50/50 split.) Often we have negotiated with the publisher who is doing the English language edition to also manage foreign language licensed. However our agency has also handled the licensing for book published in Korean, Dutch, German, and Slovakian. It is quite fun to look on our shelves and find our client’s books also printed in Russian, Polish, Czechoslovakian, Indonesian, Spanish, Portuguese, and French.

Read More

E is for Editor

by Steve Laube

Your editor can be your best friend in the industry (besides your agent, of course). Or your editor can be your worst enemy.

Bad Side First

An editor who doesn’t reply to your email inquiries or return your phone calls is either ignoring you on purpose or is so busy with other pressing matters they can’t get to yours. If you have this problem make sure you didn’t create it in the first place by incessantly poking your editor with minor questions. It is likely many of your questions can be answered by your agent, unless they are related to the specific editing of your manuscript.

Read More

D is for Dispute Resolution

by Steve Laube

Pray that it never happens to you. But if there is a situation where you find yourself in a legal battle with your publisher regarding your book contract there are terms that will dictate how that disagreement is handled.

Here is one version from an old contract:

Any claim or dispute arising from or related to this Agreement shall be settled by mediation and, if necessary, legally binding arbitration in accordance with the rules of a mutually agreed upon alternative dispute resolution service. Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction. The parties agree that these methods shall be the sole remedy for any controversy or claim arising out of this Agreement and expressly waive their right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision.

Regardless of the place of its physical execution, this contract shall be interpreted under the laws of the State of XXXXXXXXXX and of the United States of America.

If you read this carefully you’ll see it lays out the rules that keeps a dispute out of the court system and forces the two parties to use binding arbitration instead.

Read More

C is for non-Compete

by Steve Laube

Both Tamela and Karen wanted “C” to stand for coffee or chocolate since both seen to be must-haves for any writer. Instead I’m going to fudge a little (pun intended) and write about the “non-Compete” clause in your contract. This clause has become the latest playground for negotiations.

Here is a simple version of a non-compete clause:

The Author will not publish or authorize the publication of any other work which would adversely affect the sale of the Work without the Publisher’s prior written consent.

Seems fairly innocuous, and it is. This publisher is basically saying “don’t write another book similar to this one.”

Take a look at this language from another publisher’s contract:

Author will neither publish nor authorize the publication anywhere of any Competing Work, including any Competing Work co-written by Author, in any form equivalent to a Physical Version, Digital Version, or in any form hereafter devised. A “Competing Work” shall be any work on the same or similar topic contained in the Work, treated in the same manner and depth, and directed to the same audience.

Imagine you have written a book about anger in the workplace and then later want to write about anger as a parent for a different publisher. Are those “competing” works? Would the second adversely affect the sale of the first?

Read More

B is for Buy Back

by Steve Laube

Many authors are also speakers and as such usually have a book table in the back of the room where the audience can purchase a copy of their book during an event. This can be a very valuable source of income for the author if they have negotiated a “buy back” price (also known as the author’s discount) at the time of signing their book contract.

Check Your Contract Restrictions
It is crucial that you read your contract if you plan on selling copies of your book. No publisher will allow you to resell your books to a commercial account. In other words don’t try to buy thousands of books at your author discount and then re-sell them to Wal-Mart at a special price. That is a no-no. And is a logical restriction.

Also, there are a couple publishers that do not allow you, by contract, to sell your books in any public venue. If you scoff at this after signing the contract and are caught, you are in breach of contract and could face the consequences.

Read More

A is for Advance

by Steve Laube

Whenever I lecture about money the room becomes unusually quiet. Instead of a common restlessness from listeners there is a thrumming impatience to reveal the punch line. The punch line that declares every writer will be rich.

Now that I have our attention let’s turn to the topic of the day. The Advance. This is defined as the money a publisher pays to the author in “advance” of the publication of the finished book. We read about the seven-figure advances in the news because they are unusual and quite substantial. The amount given to everyone else can be rather different. (Read the article where Rachelle Gardner answers the question “What is the Typical Advance.”)

Payout Schedule

The money is not given all at once. There is usually an amount given for signing the book contract and the balance comes at various stages of the writing process. Some pay half on signing, half on acceptance of an acceptable manuscript. Some pay one-third on signing, one-third on acceptance, and one-third on publication. There can be other triggers to create payments like an acceptable proposal for subsequent books in a multi-book deal. We even had one highly unusual situation where the total amount of the advance was divided up over the course of 15 months and the publisher paid the author monthly.

Read More

A is for Agent

by Steve Laube

I thought it might be fun to write a series that addresses some of the basic terms that define our industry. The perfect place to start, of course, is the letter “A.” And even better to start with the word “Agent.”

If you are a writer, you’ve got it easy. When you say you are a writer your audience lights up because they know what that means. (Their perception is that you sit around all day thinking profound thoughts. And that you are rich.)

If you are an editor, you got it sort of easy. Your audience knows you work with words and all you do is sit around and read all day. In my editorial days I was often told, “I’d love to have your job.”

But tell someone you are an agent and there is a blink and a pause. If they don’t know the publishing industry they think “insurance agent” or “real estate agent” or “secret agent.” Or if they follow sports or entertainment they think “sleazy liar who makes deals and talks on the phone all day.” I resent people thinking that I talk on the phone all day. (Hah!)

Even at a writers conference I always have someone ask, “What is it that you do?”

Deal Maker

An agent works on commission. Fifteen percent of the money earned in a contract they have sold to a publisher on behalf of a writer. I will be bold to say that any prospective agent who asks you for money up front is someone you should stay away from.

This is the category that most people focus on when defining the role of the agent. But it is only one small facet of what we do. Two months ago I published a list of the activities our agency had recently done as a way to help dispel the myth that we are only deal makers. It is how we earn our living but only a small part of our work.

Don’t get me wrong. This is a crucial part of what we do. Our contract negotiations are critical to the long-term health of the publishing/author relationship. Last Fall I taught a course at a conference called “Landmines in Your Book Contract.” Each time I read one from an “offending” contract there were gasps in the room. There is a good reason to have a professional review any book contract you are ready to sign.

Read More