Answering Questions On Contracts, Part 2 of 2

Denise Grover Swank asked: What should an author do if they are offered a contract from a small publisher but don’t have an agent?

→ Do your best to understand it. Be ready ahead of time by reading (and maybe even printing out and keeping in a notebook) all the blog posts you can find about publisher contracts. Get a book or two if you want. You’re most likely not in a position to pay hundreds of dollars for a professional to look at it, since you may be getting a small advance or more likely, no advance. Watch carefully for language that ties up your rights forever—and ask the publisher to put limits on it. (Watch for my blog post coming soon on reversion of rights—this should help you understand how to do this.)

T. Anne asked: Are all of the publishers marketing strategies addressed in the contract?

→ No, the typical boilerplate contract doesn’t contain a single word of commitment on the publisher’s part for any marketing or promotional strategy. However, when we have authors for whom publishers are competing, we might ask publishers to submit a marketing plan along with their offer, as a way of helping us determine the best publisher for that particular project.

Beth asked: Is it easier to retain subsidiary rights for authors who are first time authors? Is it better to do this?

→ For the typical first-time author who’s project isn’t super hot (doesn’t go to auction), we don’t have a great deal of negotiating leverage, nor do we have compelling reason to retain many of the rights. I normally try to retain performance rights for my authors, but there are a few publishers who don’t want to release them for first timers.

Mary asked: I have read that publishers may eliminate advances as the new world of publishing unfolds. Do you have a perspective on this matter?

→ Well of course, many smaller publishers are already eliminating advances or offering small ones. I doubt the major publishers will do this, but things are changing fast so stay tuned. Personally, I think if the big publishers try to float an advance-free business model, more authors will decide self publishing is the way to go. The choice will be between having control and possibly making more money, or having the cache of a traditional publisher.

Erin MacPherson: I’m wondering how often your negotiations are successful? Like are you often able to negotiate better contracts for your authors or are publishers pretty set in stone and you’re lucky to get one or two of these things changed?

→ First, each contract negotiation isn’t like “starting from scratch.” We’re familiar with most of the publishers’ contracts, we know what to expect, and in many cases, we’ve already worked out the language the publisher will use for the initial contract template for our clients. Beyond that, we are reasonable negotiators—paying very close attention to detail and wanting to do everything possible to protect our clients and get them the best possible deal, yet also knowing what would make sense for the publisher. We want the final contract to be a win-win for the publisher and author. We also know how much leverage we have with each author, and we’re clear on what’s worth walking away over, and what’s not. I’m always pretty happy with the contracts we end up with, although occasionally we end up not being able to get something we requested.

UPCOMING:
In the next couple of weeks I’ll be addressing contracts further, doing separate posts on Reversion of Rights, Performance Rights, and Royalty Rates.

© 2010 Rachelle Gardner, Literary Agent

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  • Sue Harrison

    >Rachelle, I can't begin to imagine the effort that goes into negotiating just one contract. Besides keeping up with current legalese and publishing info, you must also need to understand the psychological makeup of the author you represent and that of the negotiator from the publishing company. Did you ever consider a career as a tightrope walker?

    With publishing companies that serve the CBA community, do you usually work with a "negotiator", CEO/COO, or with an acquiring editor?

  • Anne Gallagher

    >I've been avidly following these posts Rachel and just want to say thank you so much. It's nice to get the nitty gritty from an insider.

  • Heather Sunseri

    >Great information in these posts, Rachelle. Thanks!!

  • Wendy Paine Miller

    >I like how you mention each contract negotiation isn't like starting from scratch.

    Yet another reason why I know it will be helpful to work with an agent.

    ~ Wendy

  • Sharon A. Lavy

    >What incentive does an agent have to submit to a publisher who does not give advances?

    I'd think that is a slippery slope for publishers who want an agent to be their first reader.

  • Susan Bourgeois

    >Great information! Thank You!

  • Denise Grover Swank

    >Thanks so much for answering my question!

  • lauradroege

    >I'm going to bookmark your posts on contracts, etc., Rachelle. I know that they will be helpful when/if I get to that point in my writing career. Thank you for sharing your knowledge with us.

  • T. Anne

    >Thank you for answering my question. At the point when when my proposals are out with publisher's, I plan to delve into a marketing research exhaustive. I still feel as though the burden of marketing is upon the author, and I think those months before our books hit the shelves are crucial. However the bottom line is still a well written book with a gripping story, and I don't necessarily believe those two concepts are intrinsic to one another. (Except in my novels. ;)

  • Marilynn Byerly

    >A writer might not have an agent, but she should have lots of pro-writing friends, a professional organization which offers advice, etc.

    Ask around if you have questions, and you'll be pointed to various resources as well as a bit of advice from those who know their stuff.

    For example, EPIC, the electronic publishing author group, has some excellent information on e-publishing contracts as well as red flags to look out for.

    Go here and you'll find a link to the info link on the left side of the page.

    http://www.epicauthors.com/

    I also recommend the newest edition of KIRSCH'S HANDBOOK OF PUBLISHING LAW by Jonathan Kirsch. It's a resource every author, with or without an agent, should have.

  • Rick Barry

    >This discussion sparks a question about books being made into movies. How does that typically happen? Does an agent think, "This novel has fantastic movie potential" and then seek to get a producer's interest? Or do you just let the story be "out there," and if a studio comes calling, you reach for the contract and proceed from that point? (I'm not harboring unrealistic dreams here, just curious about that aspect of the biz.)

  • Bri Clark

    >Rachelle,

    I'd like to address the question that you answered about a small publisher. While most of us don't have the money to hire a professional that doesn't mean we don't have professionals as friends,such as accountants and attorneys. Or friends whose spouses hold these jobs. They may not be agents but they are more familiar with the vocabulary used in legal contracts. Maybe it wouldn't hurt for them to explain something you have specifically and perhaps even looking over the whole thing. In my own experience I have found that people delight in the opportunities that being published could offer you as an author. They want to support and help you along the way. Most want to do so they can have the opportunity to say "I knew her when…"

    Bri

  • Rachelle

    >Bri Clark: That's a good point – if we know people who can help, we should go ahead and ask them.

    However, it's really important to keep in mind that very few professionals who don't work specifically in publishing are familiar with the ins and outs of a publishing agreement. While they may understand what something means, they may not have a clue what's acceptable versus what's egregious (and everything in between). They may not understand exactly how we work to protect authors' interests in their own intellectual property – how we place reasonable limits on publishers, etc.

    That's why I advocate reading things like this on the Internet, and like another commenter mentioned, getting Kirch's Handbook if necessary.

  • Rachelle

    >Rick Barry: I have an upcoming post on performance rights, so watch for it.

  • Jan Cline

    >Great info..thanks so much. I can imaging how agents have to keep on their toes to stay on top of industry changes. Kind of like the tax laws for an accountant! We appreciate what agents do for us – still it's good for writers to be informed for whatever situation. I would much rather have an agent handle things for me…

  • KC Frantzen

    >This has been an extremely helpful series. Thank you very much.

  • Aaron E. Sharp

    >Rachelle,
    I am sitting here looking at my first book contract and I have a question. Is the royalty rate paid off of the retail price or some other figure?

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