The basics of book contracts, part 3 - the promises made and what they mean

 

So you have a book contract. Wonderful! And you’ve looked at the key elements I’ve talked about so far — licencing, termination clause, advances and royalties — things that will benefit you if you get them right.

But what about the promises — often called “warranties” in your parts of your contract? And the guarantees the publisher makes to you? Because this is a legal contract, and if you break any of these promises, you might find yourself in a load of trouble.

Warning: I am not a lawyer or an agent, so what I say here is not legal advice. It’s knowledge and experience from 25+ years of book contracts, and too many writers are ignorant of things that could cost them a lot. Or even everything.

What you promise the publisher

Let’s start with the first thing you promise them — the date you will hand over the final edited draft of the manuscript, after you have worked with their editor. Whether you have disputes with the editor or not (and it’s a good idea to avoid this or sort it out early), publishers usually create a schedule for publishing your book that starts with the publication date and works backwards.

If you hand in your final draft two months late, you stuff up their whole schedule. They might have decided your book should come out in early October to gain Christmas sales. You being two months late means they’ll be struggling to get your book out there by early December, and will be pretty upset at missing two months of sales.

Of course you can’t avoid catastrophes, but if something like that happens, you will have to talk to them pronto. Just not handing over the manuscript by the due date means you have broken the contract. Communication is key.

Warranties are also your promises

Now for the section called warranties. Firstly, you warrant that the work belongs to you and you are entitled to enter into the contract. You also warrant that you own the copyright, and the book has not been previously published in the territories you are contracting for.

BUT you also warrant that the work is original — that means you wrote it. Now, to the best of my knowledge, nobody is seeing a clause under warranties YET that specifically says your original work has not been written with the use of AI or ChatGPT. But it would not surprise me if it’s coming.

(I think the use of AI is going to bring quite a few changes to this section of the contract, and you will have to be on your toes about what it means for you. Look at the legal outcomes — and what you might have to prove.)

You also warrant that in writing your work, you didn’t use anyone else’s work and present it as your own. Everyone talks about academic writing and quoting properly to avoid plagiarism, but this happens even in novel writing. A recent example is a novel shortlisted for a prestigious prize that turned out to be not the author’s work.

What would happen if you did this? Apart from your book being pulped and your reputation shredded? Your publisher may require you to return your advance, and they may decide to sue you.

The same could happen if you break your contract because of another warranty — the one where you warrant that you have not included anything libelous, defamatory or obscene. You wouldn’t think this would apply to fiction, but there have been cases of not-so-carefully disguised “revenge” characters where the real person can be identified.

In non-fiction, this can be a real issue, especially in biographies, and you also have to warrant that you have not included anything that can cause harm (statement, advice, information, instruction, recipe, formula etc). Sure, books inciting hatred are published — this is the nasty world we live in now — but those publishers would already understand what risks they are taking. However, if anything went really pear-shaped, guess who would get blamed?

And the ultimate clause that follows the warranties? That the author will indemnify the publisher against any loss, damage or injury caused by breaching those warranties.

And by the way, if you do use material or words that belong to someone else, where you can get permission for the use so it’s all legal — you have to pay the permissions fee. That can cost you hundreds or thousands of dollars. It’s a clause you really need to negotiate if you are in this position. It’s why editors tell writers not to use song lyrics, for example. Two lines of a famous song can cost you $2000 (which happened to a friend — who decided to make up her own lyrics for the story instead).

Now, what does the publisher promise you?

Firstly, that they will publish your book AT THEIR OWN EXPENSE within a certain date. It can be six months or twelve months from the date of contract signing. It might be longer, depending on the book.

I’ve capitalized “at their own expense” because this is important — when you are being scammed by a vanity publisher, you won’t see this promise, because they’re going to make you pay for almost everything. If your book is being traditionally published, by a genuine publisher, they pay for publishing costs, including editing, design, printing and distribution.

If you are presented with a contract where you are being asked or expected to pay ANYTHING, then please get proper legal advice, from a writers’ organization or an arts lawyer. I once had a student come to me very excited at receiving a publisher’s offer for their picture book — all they had to do was pay the publisher 8000 pounds. No. That’s a scam.

The publisher also promises to publish the book in a professional manner — so that includes good editing, page and cover design, blurbs etc. You may be consulted about covers etc, but don’t expect to have the final say. They do (and they usually know a lot better than you what the market is and how to present the book).

They also promise to market and sell the book in a professional manner, trying to get you as many sales as they possibly can. Here, you need to understand that the marketing budget is also out of your hands. If you are a debut author, you may get extra in the budget, especially if you or your book has an “angle” that can be promoted.

I would add here, too, that some contracts will stipulate that you make yourself available for publicity and marketing — this might mean speaking at writers’ festivals, doing interviews on various media, doing appearances at events. If you are afraid of public speaking, you may need to find a way to get over this, or discuss it with them first.

I have not seen any contracts that stipulate you must do your own marketing via social media, but there is certainly an expectation that you try. Some authors are really good at this. Most at least give it a try. We do our best. But if you do want to engage more on SM, start now, and get your website sorted ASAP as well.

The takeaway from all of this

A contract is exciting. But it is also a legal document, enforceable in court, so it’s a good idea for you to look at these sections of your contract and understand exactly what they mean for you and your book.

Part 1 of these articles looks at licencing, copyright, termination clauses. Part 2 looks at the money — advances, royalties etc.

Warning: I am not a lawyer or an agent, so what I say here is not legal advice. It’s knowledge and experience from 25+ years of book contracts, and too many writers are ignorant of things that could cost them a lot. Or even everything.

This article was first published by me on Medium. https://medium.com/@sherrylclark/why-you-need-to-know-the-basics-of-a-traditional-book-contract-part-3-promises-promises-37526c0e4409