Book Contract Clinic, by Stephen E. Gillen ESQ.

If you’ve been published, then you’ve seen it before—a WHEREAS and a THEREFORE followed by eight or more pages of pre-printed, pedantic prose offered up by the editor as his/her “standard publishing contract.” Other than a few tiny spaces for your name, the title of your work, and the manuscript delivery date, the bulk of it looks as though it were long ago locked down in Century Schoolbook type.

But the truth is that there is more to review than the spelling of your name, choice of title, and projected completion date, and more to negotiate than you might realize. Here, then, are three critical points to get you in the right frame of mind, followed by an explanation of six typical clauses to help you understand what is (or ought to be) worthy of negotiation.

Point #1—You Have More Leverage Than You Think

Editors are under ever increasing pressure to sign new titles, meet publication dates, and deliver sales results. For many of them, these factors have a direct bearing on their year end compensation (a circumstance that can work to your significant bargaining advantage as year end approaches). While there are many aspiring first-time authors out there, only a relative handful will be published. If you have attracted interest or a contract offer, then you have already made the cut. A reasonable list of tactfully stated concerns and requested amendments will only reinforce the impression that you are a competent and thorough professional. Moreover, the editor will have invested a significant amount of time in reviewing your proposal, perhaps getting outside reviews, preparing a pro forma profit and loss analysis, and drafting a publication plan and recommendation for his/her superiors-if you are not signed, all of this effort will have been for naught and the editor will be back to square one.

Point #2—You Have To Do Your Homework

Negotiations are ultimately influenced by which side knows the most about the other side’s positions. The editor starts this contest with an advantage gained from experience in the market, experience doing other similar deals (undoubtedly many more than you have done), and the benefits of your perspective as reflected in your proposal. The way you get on an even footing with your editor/publisher is to learn more about your publisher’s plans for, and expectations of, your work—information that will help you evaluate your leverage and your editor’s weaknesses. Ask about these issues in the context of negotiating a book contract and the editor will evade them, hedge, or refuse to answer. Ask about them after the editor has indicated an interest in your work but before you engage in active, contract-focused negotiations—in the context of learning more about your editor/publisher, more about their list and their business, more about the market and your potential competition—and you may catch the editor still in his or her selling mode. Ask them yourself and in person or over the phone. Negotiations may be formal and may be best handled by your attorney or agent in order to preserve your relationship with your editor. But information gathering will be most effective if you do it in person. A question perceived as innocuous when asked by you will be viewed with suspicion if posed by your agent or attorney. It may take some prodding, probing, wheedling, and cajoling, but the information you gather will prove valuable so take copious notes.

Point #3—Decide What’s Important To You

There is no one-size-fits-all solution. If you make your living as a professional writer, then money issues will likely be at the top of your list—advances, grants, royalties, re-use rights should be the focus of your attention. If, on the other hand, you’re an academic living by the “publish or perish” mantra and in search of the inner peace that tenure will bring, then the money issues may well take a back seat to ensuring that your work is actually published—on schedule and intact. If you are a professional of another sort (doctor, lawyer, accountant) and you view your book not so much as a revenue generator, but more as a promotional piece and as your professional bona fides, then your principal focus may well be on the non-compete provision and ensuring that it does not preclude you from engaging in the kind of professional writing, speaking, and consulting that does pay the bills. Keep your goals firmly in mind as you review the clauses and the better/best alternatives that follow.

Odds are, you will not prevail on all of these issues. But odds are equally as good that you will not lose on all of them either. In any event, you will not get that for which you do not ask. So ask away…at the end of the day you will have a better deal and a more informed relationship with your publisher.


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