Here’s a word you might have heard — boilerplate. And here’s a term — termination clause. If you don’t know what either of them mean, I’m going to explain — and more.
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.
It’s astonishing how little is understood about book contracts. Not all of this is the writer’s fault. Some publishers deliberately create 50-page contracts full of jargon to bamboozle you. They don’t want you to ask questions. They want you to sign and shut up. (That’s why good agents are worth their percentage, by the way. Good agents don’t shut up, and they shouldn’t get bamboozled.)
I was incredibly lucky — when I received my very first book contract, another writer with a ton of experience and knowledge took me through it, clause by clause, and explained everything, as well as what I should be asking for. I will be forever grateful to him. I had to negotiate more than twenty contracts on my own, and it was pretty nervewracking at times. But knowing what I was entitled to, and understanding what the parts of the contract meant, made all the difference.
I have since had agents, but I still read every contract and discuss it with my agent so nothing is missed and we are on the same page about what to ask for.
This knowledge is important. Without it, you could lose a lot, including the rights to your own book. So here is some of what I have learned to share with you.
Boilerplate
This is the name given to the publisher’s standard contract. This contract almost always favors the publisher. It gives them a higher percentage of many of the rights that can be sold. It often has no termination clause. It can also waiver your moral rights, and put the onus back on you if anyone sues.
In other words, never sign the boilerplate contract. How do you know that’s what it is? Because it will be the first one they offer you, expecting you to be so excited that you will sign without even reading it. I know quite a few authors who have literally done this. And been sorry.
One author signed away her copyright, not just on that book but the next one she had agreed to write for them. When the first book sold and sold, she never got another cent. An illustrator signed away everything for a flat fee rather than royalties and rights payments, so when the books became bestsellers and the publisher produced merchandise using the illustrations, the illustrator got nothing.
Publishers will say that they don’t deliberately set out to swindle you. But the fact remains that almost every boilerplate contract will have clauses that are in their favor which take money away from you.
Copyright and licencing
One of the very first clauses will be about “licencing the copyright” to the publisher. This is NOT the same as granting or selling the publisher your copyright — if you do that, you lose any rights whatsoever to the book from there on.
Generally, you licence the publisher. It will read something like this: The Author hereby grants to the publisher the exclusive licence to publish the Work in volume form (including electronic book, audio book and omnibus book form).
It will probably also stipulate the territory — in Australia, many publishers want world rights so they can sell the right to publish in other territories. It’s different in different countries (and if you have a good agent with overseas connections, he/she might limit the territories).
Where people get confused is over what the licencing means, because often this clause has another part that talks about duration — the licence shall be for the legal term of copyright plus any extensions. So they assume that is the same as selling their copyright.
Not so.
The termination clause limits the licence
You have to have a good termination clause to go with the licencing clause, and this termination clause may be much further into the contract. Without it, the publisher can insist that as long as the book is available as an e-book, it is still “in print”. Even if it isn’t selling, and hasn’t for ages, you can’t request a return of rights without “out of print” being defined to your advantage.
Once upon a time, before e-books, out of print usually meant it was no longer available to buy (they’d sold them all) or the book had sold less than 50 copies in a 6-month royalty period. You wrote a letter requesting a reprint, and if they didn’t want to reprint, they returned the rights to you. E-books have messed with this “out of print” clause.
I have contracts now where there is a “low sales” clause that covers this as effectively OOP after a minimum period of time. But the termination clause should also cover what happens if the company goes out of business. It needs to stipulate, as well, that if either party doesn’t comply with the contract, then the contract is terminated and rights returned to the author. This might include not publishing the book within the specified time, or the author not delivering the manuscript by the date it is contracted for. It works for both of you.
Finally, if the book does stop selling and your rights are returned to you, make sure you have an official “reversion of rights” letter, and keep hard copies of it as well. I was lucky that when a small publisher I had a book with was sold to a larger publisher, and I had asked the small publisher for my rights back first, I had printed out the email for my files. It was my only evidence, as my computer had died, but it was enough that the big publisher had to pay me some money they had inaccurately received for the title.
Your book is not just your pride and joy. It is also a product with various rights that can be sold, and you never know what might happen — so learn what it all means and how to protect what you have created.
I’ll write about other important clauses in the next article (Part 2 — the money).
(And remember, if you need legal advice, either find an agent or look for an arts lawyer. Not the lawyer your mom used for her will!)
This article first published by me on Medium - https://medium.com/@sherrylclark/why-you-need-to-know-the-basics-of-a-book-contract-if-you-want-to-be-traditionally-published-782514c78f7e
