by Steve Laube
During the last six months we have run into some landmines buried within some small press contracts. In each case it was the author’s relationship with the publisher that helped land the offer, and so we proceeded to review the paperwork in order to protect the author’s interests.
In one case the small publisher was very grateful for our negotiations and contract changes. They plan to change their contract for all authors in the future. We were glad to help our client form that new partnership.
In two cases the publisher said they could not afford to hire a lawyer to review our requested changes to the contract and thus were unwilling to negotiate. We recommended the author walk away both times.
In yet another case the publisher wouldn’t negotiate and said, in essence, “take it or leave it.” We walked away. Our client terminated their relationship with us and signed the deal on their own.
A Couple Landmines (just a couple for the purpose of this discussion):
Royalties based on Net Profit not Net Receipts. This means the royalty the author receives is based on the Publisher’s revenue AFTER expenses. In the movie business this is called “Hollywood Accounting.” Read the linked article see how it is a clause that can be easily abused.
I laughingly told one publisher “You could go on vacation to Bermuda, call it a ‘research trip’ and charge it as an expense against my client’s book!”
The publisher did not laugh and said, “We would never do that.”
“Of course not,” I replied, “but how do I know that?”
“Plus,” I continued, “if your company is sold to someone else, the terms of this agreement will go to the next owner who may not have the same moral compass you have.” The Publisher was unwilling to change this clause in this case, although another publisher agreed to change their contract to “net receipts” after hearing our arguments on this point.
This was missing in one of the contracts. It means there is no mechanism for the reversion of rights if the publisher declares bankruptcy. We have heard too many author stories about books they can’t get back because of bankruptcy proceedings with their publisher. While I’d rather not assume a publisher will go bankrupt, the principle of “Expect the best, but prepare for the worst” is something to consider on this issue.
Such are the weekly frustrations of an agent. While these were small publishers we have to watch every contract even if we have negotiated with that same publisher before.
By the way, if you got to the end of this article, “Congratulations!” Most have their eyes glaze over when they see legal stuff in these posts, despite the importance of such dry information.