Dear O'Abby: Do I need a lawyer if I have an agent?

 Dear O'Abby,

I'm agented and my agent has just sold my book to a publisher!  I'm super excited, but also want to make sure everything is being done properly, so I'm wondering if I need to get a lawyer to look over the publisher's contract?  Or is that something my agent does?  Not ever having been in this position before, I'm not sure...

Do you have any advice?

Best Wishes,

Contracted

Dear Contracted,

Congratulations to you and your agent for selling the book!  How exciting!

In terms of getting a lawyer, it's one of those things you are perfectly welcome to do, but if you do, there are a few things you should think about.

Firstly, let your agent know you are doing this. Agents often have previously-negotiated contracts with publishers they can use as a basis for any new contract and an outside lawyer isn't going to know what has already been discussed.

Secondly, make sure the lawyer you hire understands publishing or they may want to try to negotiate things that are standard in the publishing world.  Like most industries, there are things unique to publishing that can't be changed and it's better to have a lawyer who understands these things.

But generally speaking, while an agent is unlikely to object to you hiring your own lawyer to look over a contract, it isn't really needed.  Agents are (or should be) experts in reading and negotiating publishing contracts and as your advocate, will be looking for the best possible terms for you and your book.  They are far more familiar with the publishing landscape and any specificities of the industry than most lawyers, and also of any new trends moving through.

So my advice is to save your money and trust your agent unless there is something you see in the contract that sends up re flags.  And even then, I'd talk to your agent about it before you rush out an hire a lawyer.

Make sense?

X O'Abby

Dear O'Abby: Does this contract clause sound okay to you?

 Dear O'Abby,

A small press has accepted my novel for publication!  I was over the moon to finally be on my way with the writing career I've dreamed about since I was a little kid. But then the contract arrived and now I'm not so sure.

Most of the contract looks pretty standard and nothing stood out to me as being a red flag.  Until I reached the termination clause and found that should I wish to terminate my contract with the publisher, they will charge me a termination fee.  Plus, they will charge me for any editing, cover design, formatting and marketing they have done to date.  And any other "title-related costs".

Is this standard in publishing contracts?  Or is it something I should be wary of and run as far as I can from this publisher?  I'm obviously not planning to terminate my contract early, but you never know what might happen in the future...

Kind regards,

Future Uncertain

Dear Future Uncertain,

A termination fee is not always a red flag.  Sure, it's hard on an author who wants out of their contract, but if a publisher does a good job publishing a book and invests time, money and effort into editing, design and marketing, they probably do have a right to try and make some of that cost back if an author decides to walk before the book has earned back the cost of producing it.

Where termination clauses cause issues, is when publishers use them as a tool to punish authors, or to hold them in house even when they are unhappy with the way the publisher has handled their book(s).  And to me, that very vague "title-related costs" does sound somewhat ominous.  Unless a publisher can outline exactly what costs you will you will be liable for, I'd be uncomfortable.

Ideally a publisher will work with an author if they are unhappy and try to resolve any issues without invoking a termination clause.  Generally speaking, if the contract period is for a reasonable length of time, a clause stating an author can terminate after a certain period is more fair in that it gives the author a way out, yet also gives the publisher time to earn back some of the money they spent on producing the book.  Do check that part of the contract too - a life-of-copyright contract with no clause to terminate once sales drop below a certain level is also a big red flag.

I'm not a lawyer or an expert in publishing contract language, so I would suggest getting someone with real experience in this area to look over the contract if you're worried.  I know it will cost you some money, but potentially less than if you get caught in a bad contract you may want to get out of later.

And for some more information, here's an article I found about publishing contracts and clauses to look out for.  Please check to make sure your contract doesn't have any of these clauses as well. 

Best of luck!  I really hope this isn't a bad contract and that your publishing dreams will come true.

X O'Abby

#AtoZchallenge Publishing Contracts

A publishing contract is a legal contract between a writer and a publisher regarding a piece of the writer’s original work. It will outline the rights the publisher is licensing, the period of time, the share of revenue the writer can expect and many other things relating to the work and its publication.

But not all publishing contracts are alike. Before signing anything, it’s really important that you get someone who understands contracts – particularly publishing contracts – to look over it for you. If you have an agent, she will be familiar with contracts and will negotiate the best deal on your behalf. If you don’t have an agent, you really need to get a lawyer to look over any contract before signing it.

I’m not a lawyer, or an agent, but I do have some experience with contracts, so here are a few things to check for in any contract.

Make sure you retain the rights to your work. A publishing contract should only last for a stated period, and at the end of that period, you may wish to get the rights back so you can sell them to another publisher or publish the work yourself. A publisher should only ever be licensing publishing rights, not requiring you to sign over intellectual property rights.

What your share of the revenue made from publishing the work should always be based on gross receipts, not net profit. If you sign a deal based on net profit, you will never see any money because the publisher gets to recoup costs before any revenue is shared with the writer. And editing, marketing, distribution, printing and numerous other costs can eat up any chance of there being profit to share. If you have to sign a contract offering a net profit share, there will need to be a pretty substantial up-front fee paid to the writer to make it worthwhile.

It is important that any publishing contract includes a rights reversion clause – something I know about from personal experience! If a publisher closes, you want to make sure your rights return to you. Without this clause, getting the rights to your work back can be tricky, time-consuming and costly. Rights reversion is also important if your book goes out of print and in an era of digital publishing and printo on demand, what this means needs to be defined. For example, if a book sells less than (insert number) of copies over a period of time, it should be considered out of print.

There are various different rights associated with publishing, so it’s important that your contract outlines exactly what your publisher can and can’t do with your work, from publishing excerpts in magazines to assigning the rights to another company. It’s important to understand what rights your publisher holds, and to hold onto the right to approve any licensing of these additional rights.

Money is, naturally, one of the biggest concerns in any publishing contract. Make sure you understand what your share is, and how frequently the publisher reports and pays royalties. If your contract says you will get reports and payments quarterly, and six months goes by with no word from said publisher, that could be a sign the publisher is in trouble.

This is by no means a comprehensive list – just a few things I’ve learned over the years. So please, please do your own due diligence before entering into any contract. It’s amazing what you can discover just by Googling a publisher and the word ‘complaints’...

Perseverence, Patience, and the Payoff

I talk a lot about perseverance and writing being a marathon, not a sprint. Lately, I’ve been reminded of just how true that is. 

I’ve been working as acquisitions editor at Rebelight Publishing for almost three years. As I read through the slush, sometimes I come across manuscripts with concepts I love, then I start reading and realize, with great disappointment, that the manuscript is not ready for publication. More often than not, the troubles are issues with voice and telling rather than showing. As strange as it sounds, it actually makes me angry. It’s so disappointing to be introduced to this amazing idea, only to have the writing fall flat.

However, I do have recourse—the revise and resubmit. I don’t ask for many of these because I’m usually asking the author to make significant changes to their manuscript with no guarantee of publication. I only ask for R & Rs on works that I desperately want to say yes to.

Around a year ago, I received one such manuscript. Loved the concept. Loved it! But the voice needed work and author had created a lot of narrative distance between the reader and the protagonist. I wanted this story to work, but it just needed too much work to bring it up to Rebelight standards. So, I gave the author an R &R. A few months later, the revised manuscript came back to me. With other manuscripts in the queue to be read before his, it took me months to get to it. Finally, I was able to give it a read and, to my delight, it was greatly improved. It was now a manuscript I could wholeheartedly recommend to our editorial director. Upon reading it, she too was excited about it. In the last few weeks, the author was offered a contract. He’s since signed and is officially on his way to his first published book.

Here’s the take home—it took this gentlemen a year of waiting, then revising, then waiting again to achieve publishing contract. And he will have to wait again because the book won’t be published before fall of 2018. I don’t know how long it took him to write and revise the work before he sent it to us, but it will have been over two and a half years of process before he holds his book in his hands.

I had a similar experience for my own work. I wrote my first book five years before I got to flip through its pages. Some may think it’s a ridiculous amount of time. But, I disagree. I think it’s worth it. I’ve learned to persevere and my books are better for the time I’ve taken to make them the best they can be and to find publishers who can take them to the next level.

So, be patient. Think long term. You won’t be sorry.

*******

Melinda Marshall Friesen writes novels for young people and adults. When she's not writing, she works as marketing director and acquisitions editor at Rebelight Publishing Inc. 

9 Questions to Ask Before You Sign a Publishing Contract

Writers wait, many times years, for that big breakthrough in their career—a publishing contract.

When the call or email finally comes, it’s a moment of disbelief, excitement, and dreams come true. While it may be tempting to sign whatever contract they send you—after all, who knows if it will ever happen again—there’s a few questions you need to ask first because no contract is better than a bad contract.

 Every writer has different standards in terms of what they’re willing to sign, however I’ve spoken with more than a few authors who have deeply regretted signing bad contracts. Nowadays, there are too many options out there to allow yourself to be taken advantage of. While the following list may sound like an interrogation, if it’s all done politely and in conversation, it will help you and the publisher to align your expectations and get to know each other better.

1.       Marketing

Here’s the thing about marketing—the author needs to market! The days of the reclusive author clacking away at a keyboard from their writing shed are over. You need to plan on getting out there and working your butt off to sell your novel. But, your publisher should be your partner in this work. Ask how they plan to market your book.

2.       Terms

View this contract as a mini-marriage. Once you sign, you’re going have a relationship with this publisher for however long their contract states. These terms rang from a couple years to a lifetime right to publish. Ask how long they retain the right to publish. Are you comfortable with relinquishing your rights for the period of time they’re asking for?

3.       Advance

Personally, I’m not hung up on advances because it’s an advance on royalties, not bonus money.

You’ll get your royalties one way or another before or after publication. However, it’s a question to ask if it’s something you want. Also, ask what happens if you don’t earn out your royalties. I know one author who didn’t earn out his royalties and ended up with a bill in the mail for $500.

4.       Royalties

What percentage of royalties will you be paid? Is the percentage based on gross sales or net sales? How often will you receive a royalty statement?

5.       Rights

Never, ever sign anything that requires you to give up your copyright! Never! The copyright should always be yours. When you sign a publishing contract, you are giving the publisher exclusive rights to publish your book, not relinquishing your copyright. But, what exactly are they asking for—print rights? Electronic book rights? Audio book rights? Movie rights? Merchandising rights? Serial rights? Translation rights? You need to ask.

6.       Editorial process

Are they going to require revisions? If so, what is their editorial process? How many editors will work on your book?

7.       Business background

How long has the publisher been in business? Do an online search and make sure to check editorsandpredators.com to see what their clients have to say. Do they have a good reputation in the writing community? Don’t be afraid to ask to speak with one or two of their authors for references. Again, this is a long term relationship. Don’t go into it blindly.

8.       Termination clause

What if things go poorly with this publisher? Ask about their termination clause. Will you be able to get your rights back if something unexpected happens? What happens to your rights when the book is considered out of print?

9.       Obligation to publish

Ask if there is a publish-by date. Without an obligation to publish with a deadline, the publisher can sit on your book for years. You won’t be able to publish it yourself or be able to seek out another publisher.

Always read any contract carefully and seek legal advice. If you can’t afford a lawyer, many writers’ organizations have resources available to their members. Know what you’re signing, and if you don’t understand something, ask. Remember: most publishers aren’t out to take advantage of you. Most want what you want—a profitable partnership and a great book. It’s up to you to sort the good from the bad and to decide what’s best for your book and your career.

Do you have any contract advice? If so, leave a comment below.