We field a lot of questions at Writers SA about publishing contracts and while we can’t give you legal advice, we can give you general advice on what the brightest red flags are to watch out for, so strap yourself in for a long read! At the end of this post we’ll also give some resources for getting legal advice (and you should if you can afford it or the contract is not simple).
Keep two things in mind as you’re reading your contract.
1) If the publisher is asking you to pay for anything, or order a minimum number of print books, this could be a vanity publisher and you should read this before reading the contract or entering agreements.
2) That it’s always going to be in the favour of the publisher or the party putting together the contract. If you can only change one thing on a contract, it should be the rights and reversion clause/s but no contract is ironclad. If you can’t make changes, it’s likely not a publisher you want to be with. There should always be a degree of flexibility.
Your details and theirs:
Your name and tentative title should be listed as should their company name. You will want to make sure it’s the publisher details and not a parent company or corporation you’re signing rights over to. The contract should be dated – this day Tuesday 28th February 2023 – and not 28/2/23, and a print by date or release date should also be listed. You don’t want to give them an endless timeline to produce your novel or exploit the rights.
An advance is usually a quarter or a third of what the publisher reasonably thinks they’ll earn from your book/s (Australian standard for new authors is between $3k and $10k). If you’re signing a contract with multiple books in the deal, you need to ask them if your advance is paid on each book or if it’s all of the books. If it’s paid on all of the books, you only get it once and you won’t receive another royalty on any of the books until it earns back. If you get it for one book and that book doesn’t earn back the entirety of the advance, you do not have to pay it back and it should not come off the other advances or books you sell, it is tied to the one title.
Whether you’re with a small or large publisher, the rights you’re assigning are always going to be digital, and then print, maybe ‘read-how-you-want’*, and then the run-on list of audio, TV, film, radio, translations etc.
Do your research on what the offering publisher is producing. Are they producing audio titles? No? Don’t give them audio. I would also not assign rights for TV, film, etc. An agent would sell those for you, not a publisher. A dodgy publisher might option them to another dodgy producer so they get a cut of something rather than a cut of nothing and you can bet it will all be badly handled. If someone seriously wants to produce your novel for viewing, you’d get an agent involved. Translations are incredibly costly and it’s likely only the large publishers in world markets will do this but have the conversation with the publisher and make sure there’s a clause that states that have a finite time (like 2 years) to exploit the other rights like audio or translations if you give it to them.
So if you’re signing with a publisher who only does digital (ebook and never print), they don’t need your print rights and theoretically you could sell the print rights to another publisher or self-publish the print copy.
*‘Read-how-you-want’ is large print or braille and it’s good to see if the publisher will do these for libraries (you’ll get PLR for these).
Your contract should state a period of time you’re assigning rights for and should never state ‘life of the works’ or ‘while available in print’. In print only means that the work can be accessed to purchase to read, it does not mean the print version. Life of the works is forever (like forever, forever) or copyright terms which is your natural life, plus 70 years after your death. Industry standard is five to seven years, or, under 250 units in a quarter or calendar year. This means if your book isn’t selling, you can request your rights back and the publisher has to make all possible efforts to increase sales if they want to retain the rights.
You might not know this but if you sell all rights to your work and the publisher enters an agreement with a third party, say, for audio, this contract cannot be terminated when your rights contract is terminated. For example, I got the rights back to a historical title which means I can resell, or recover and reprint, the title, but only in digital and print. The audio contract with a third party carried on for three more years after my rights reverted. This is standard but as above, you don’t have to give them audio rights if they’re not going to pursue them (keeping in mind the average production cost for audio starts at $4k).
The industry standard is between 10% and 15% of the net income on the print version, and between 25% and 50% for digital/ebooks. The net income is what the publisher gets paid by the third-party sellers. It isn’t a percentage of the cover price. And it’s only paid to you once you earn out any advances. If you didn’t get an advance, it will be paid around 6-9months after it’s earned. (this delay is also normal and depends on reporting periods). You have to reasonably expect not to be paid much in the first 12 months after your books hits the shelves.
If you’re publishing with a print publisher who will print a run of books in the realm of 3,000 to 10,000 units in Australia (not print on demand), they give special allowances to discount department stores and some booksellers. When they order your book, you get paid, but if they have to send back unsold copies, this is then deducted from your royalties. Most large publishers hold back some royalties in the event of returns. This should also be in your contract. You should at this stage ask if you can buy the returns at a discounted rate if you want copies for festivals, signings, etc.
Changes without permissions:
Do not ever give the publisher the rights to make changes to your work without your consent in writing. Once the edits are completed and the book is out, they should not need to make changes, especially sneaky changes!
The options clause is also tricky. This determines who gets the first right of refusal on your next novel or next novel in the same universe or featuring the same characters. If you’re super happy with your publisher and they you, they shouldn’t need this clause, and if you do have to put one in, make sure it’s only the ‘next work in the same universe’ (the world you created) or ‘with the same (including secondary) characters’. If you’re unhappy and write something new, you do not want to give them the next book because this little clause said so.
There’s usually talk of termination of the ‘agreement’ in the reversion clause and there’ll be one sitting on its own line. There might be language that says – ‘this agreement will automatically roll into a new period (of five or seven years) if the writer does not put into writing their request for a rights reversal within sixty days of the date’. You want to flip this so the publisher has to write to you to request a roll over into a new period. If you both forget about this, it’s probably for the best and you can request a rights reversion at any time after the first period.
The other termination language will be for gross negligence, something sue-able, despicable behaviour, etc. You want it to be about the publisher’s behaviour also, not just yours. If they publish a hate-fest book by an awful phobic author, you might want the option to cut and run.
This might also be in the rights clause but if there’s any mention of handing over rights for ‘forms or formats not yet invented’, strike it out. Authors who remember the rise of the ereader got shafted in the early days by only getting 10%-15% royalties until their contracts were renegotiated. The publishers pocketed the rest.
Transfer of rights:
In the case of a publisher closing or going into liquidation, you want to make sure your contract will be terminated and not sold on by the publisher. If this is a clause, it also needs to be struck out.
Now you’re suitably terrified of contracts and all the pitfalls they might have, another lesson as you sign is, convert the document to PDF before sending it back to the publisher. This means everything you struck out is there for everyone to see. It’s hard to manipulate a PDF but very easy to manipulate a Word doc. You should also let the publisher know you’ll be making changes to the contract. Don’t just slap them with it. Keep every email you send and receive. A reasonable publisher will come back to the table and tell you what is and what isn’t possible.
If after reading everything above, you still want to sign a contract for the life of the book and you know what you’re getting into, you can. Being published is an honour and a privilege and only you can know what your own journey will look like.
Resources (click on the line):