The Author Contract
Week 17 – in which we slowly work our way through submissions, and assemble our author contract, clause by mind-numbing clause.
We’re still working through the submissions, and have just finished the second phase. The first phase was just to rule out those that were obviously not a good fit (romantasy, academic treatises, memoir); the second is more about style and voice. You can generally tell if an author has command of these within the first few paragraphs. To be on the safe side, we read the first 30 to 40 pages. Does it grab us? Is there too much backstory or exposition? Is the dialogue well done? From this, we earmark those with potential for phase three (which we’ve just begun), where each remaining submission is read further.
For those we reject at whatever stage, we try to give meaningful feedback. As I’ve said before, this is generally a thankless task. No one wants bad news, no matter how kindly or skilfully you dress it up. But we said we’d be different in this regard by giving more than boilerplate responses, and we’ve already received some thanks for our feedback from some of those rejected, so that’s heartening.
The key thing about rejections is not to take them personally – easy to say, I know, and as an author myself I know how glib that sounds. But for every no, there is potentially someone out there willing to say yes – perhaps not now, and perhaps only after certain issues with the manuscript have been addressed, but eventually. Anyway, as creatives, we have to think that or we’d go crazy.
Speaking of flirting with madness, we’re just finalising the WoodPig Press standard author contract. This has been a bit of a nightmare, mostly because publishing contracts have traditionally evolved to enable one party to screw over another, and the language that has traditionally been used is traditionally impenetrable. It’s also just mean. In illustration, I was going to quote here a single clause from Clark’s Publishing Agreements (the literary contracts bible), which consists solely of a single, two-hundred word sentence of purest legalese, but ironically I’m unsure of the legality of doing that, so you’ll have to make do with picturing the sort of terms and conditions you routinely scroll past every time you sign up to something online.
Anyway, like one of those naive fluffy little creatures in the woodland tales (the sort that loses all their inheritance in the woodland gambling den to card-sharping squirrels – it’s always squirrels, isn’t it?), I said to myself, “I’ll just make it simple and easy to understand and author friendly!” Months later, it’s nineteen pages long, approaching six thousand words, and has more sub-clauses than an NDA for [insert some reality TV show for humorous comparison]. In my fluffy naivety, I also thought, “I’ll share the whole thing with the public and be really transparent!” Except – aside from being really boring – it would also be really wrong, as I’d thereby be publicly exposing the details of the agreement that every future author would sign. (Did I tell you the naive fluffy little woodland creature is also surprisingly dim as regards certain legal issues?).
So instead, you’re getting a rough overview of our main approach – a brief summary of my fluffy little journey through the dark forest of contractland.
I should probably just state that I am not a lawyer, and that anything below does not constitute legal advice. We were lucky enough to find two very nice and reasonably priced lawyers to help us with all of this, so if you are an author (or publisher) with questions about contracts or other related issues, then please seek proper legal counsel.
Here goes…
Rights
The first thing I discovered during my research was that almost every writing contract I’ve ever signed has pretty much screwed me over. I don’t single out any publishers here, because it’s an industry norm to screw authors over, and it’s almost reassuring to note how generally consistent that industry has been in doing this. Contract after contract grabbed more rights than the publishers could possibly use, for longer than they could conceivably need them, and for comparatively little recompense. “Let’s not be them!” I said to myself, in the misguided optimism reserved for founders of tech megacorporations.
An author owns copyright to his or her work the moment it takes physical form (even if that is a weird sort of physical, such as digits on a computer screen, or the back of a beer mat, or something hidden under a mattress that never sees the light of day). The publisher then licenses certain aspects of these rights from the author for specific territories, formats and duration in return for an advance and/or periodic royalty payments.1 So it shocked me to my core to see just how many of my author contracts wanted worldwide rights for all formats until I was dead in the ground for 70 years. The received wisdom for this is that it’s just “more convenient” not to have to deal with the pesky question of having to check whether this or that usage was covered. Which is fine – for an appropriate amount of money. But it tends not to be. Anyway, I’m not here to run down trad publishing (that’s a post for another day), but just to make a comparison, and to see if we could do it more equitably. So, what do we want?
We are a very small British publisher. As such, our print reach is limited. We have a distribution agreement with the Books Council of Wales that gives us the opportunity to get our books into both major high-street and little indie bookshops, but only in the UK and Republic of Ireland. For the US, Europe and other markets, we’d either have to use established self-publishing channels like Ingram Spark (which I’m not a huge fan of), Amazon KDP (which I like about the same), or try to interest foreign publishers by use of something called a sub-agent (someone dedicated solely to finding foreign and subsidiary rights for publishers and authors). These include not only the rights to sell the book outside the UK and Ireland, but also in translation, in different formats and editions, or to be adapted into a Netflix series or a blockbuster movie (if such things actually exist anymore). One can’t help but dream. Sub-agents, it turns out, are very much like agents, in that they tend to ignore your emails, so we might have to put a pin in that until we have actual titles to pitch to them and where we can tout our amazing sales figures.
Which leaves us in a bit of pickle. I expect there are non-UK authors out there who have submitted to us in the expectation that they will see their books in every bookshop in the world (or at least, in those in their home country). So what we’ve decided is that we’ll do both: we’ll “swing for the bleachers” (is that the phrase?), and take the foreign rights we need for an agreed trial period in order to pitch to sub-agents; but we’ll also “bunt into the outfield”,2 by offering a print-on-demand copy available globally to bookshops and online retailers. Then, if we get a foreign rights deal at some later point, we will simply de-list the book from print-on-demand distribution in foreign markets. Of course, the other option is that the author keeps his or her own foreign and subsidiary rights, and pitches the book themselves to foreign publishers – and we’re not averse to that option either.
In formats other than print, everything is much simpler. Thanks to the global interweb, ebooks and audiobooks are easy to distribute all over the world, so we can do a good job of making sure your book is purchasable and downloadable from Stockton-on-Tees to Timbuktu.3
Duration
The other big question concerning rights is duration. As I’ve said, most publishing contracts now ask for “the period of copyright”, or “corpse plus 70”, as I’ve whimsically decided to call it. In all likelihood, your book will be long out of print before then, but publishers like to dream big (at least, when they have the money to bully a penniless author into accepting these terms). However, having talked snark about mainstream publishing for being money-grabbing swine, we’ve decided that we will offer our authors rights for “corpse plus 70”, but with the option for a lower, fixed-term if the author prefers that. The point here isn’t to grab all rights and then squat on them like a literary equivalent of Smaug, but just to make things simpler and not have to worry about which work is still licensed. Also, “period of copyright” doesn’t just benefit the publisher, but is a commitment to keep the author’s book in print for as long as the copyright exists. Hopefully, even after all the launch-fuss has died down, your book can continue to tick over happily in our back catalogue, supporting and being supported by its swelling literary brethren and sistren. And if it doesn’t? If it goes out of print (there are no physical copies in our distribution warehouse for a stated period), then after a few months you would automatically get your rights back to take elsewhere, self-publish, and do with what you will. Or, if you’re just not happy with your sales, then we can have a conversation like, you know, human beings do.
But as I say, if period of copyright is a problem, we can go for a shorter period, where both parties have the option to stick or twist after (e.g.) 3 or 5 years.
Advance
Advances seem to be a central strut of the romantic dream of Being An Author. “He had a six-figure advance!” “There was a three-way bidding war!” “Her book has already been optioned by Netflix!” Well, those are all lovely fantasies to have, but the truth is that (a) they happen to a small percentage of authors, and (b) most advances are never earned out.
In case you’re new to all of this, let’s break it down a bit. An advance is so called because it’s “an advance payment on expected royalties from future sales”. So, if you get a £10K advance, you won’t see a further penny until you’ve “earned out” that £10k via book sales (which you will creep toward at whatever very modest royalty rate your contract stipulates). Regarding all of my thirteen traditionally published works, I have only earned back my advance for my very first two books – some 20 years ago, both of which had tiny three-figure advances. You – as our American cousins put it – do the math. I used to take this personally, reckoning myself a failure. But all of these titles were for relatively large mainstream publishers, aimed at a commercial readership, with many overseas rights and subsidiary deals (I think my current total count for translated editions is ten languages – or thirteen foreign markets, if you include US, New Zealand and Australian editions). So you have to come to the conclusion that my general failure to earn back the advance is by design. In other words, the publisher expects this type of book not to explode – because most books don’t – so they offer just enough financial incentive to motivate the author. If it does take off, then great – everyone wins (sort of…); but even it it doesn’t, they’ve made a profit, because they’ve already factored in their costs and margins, and which don’t require you earning back your advance.
But all this is moot, because as a small press we can’t afford to pay you an advance anyway, so instead we’ve decided (a) to offer higher royalties, and (b) to pay those royalties quarterly. So, three months after publication, and every three months thereafter, you can expect to start to see a trickle of income – and, hopefully, for many years to come, because unlike mainstream publishers, we won’t stop promoting your book.
Returns
One interesting quirk of the traditional publishing industry is how it deals with returns. There are numerous ways in which publishing and bookselling are broken, and one of the most wasteful by-products of this struggling system is the policy of “sale or return”. This practice actually owes its existence to the Great Depression, when impoverished bookshop owners were too scared to take risks on new titles. So, under this scheme, bookshops get books for a certain period for free, and only pay for those they sell; for those they don’t, they return them to the publisher within a certain agreed window. But for the publisher, the cost of transporting them can sometimes outweigh the benefits of re-selling them, and not all are returned in pristine condition, in which case they are often pulped (as much as a third of trade paperbacks, apparently). I do understand the financial pressures on all parties, especially indie bookshops, but what a waste.
Big publishers can perhaps afford to take this hit, but it’s a real hardship for small publishers. The way most publishers of all sizes deal with this is to set a “reserve on returns”. This effectively means that when a publisher sells your book to a retailer or wholesaler, they keep back a percentage of those royalties – often 15% to 25% – against the likelihood that a similar percentage of copies will be returned to them. This reserve can then be used to offset the losses, and so that the publisher doesn’t have the awkwardness of clawing back money from an author who has already spent it on absinthe and escorts (probably).
That this continues to be a sore spot for most authors is revealed in Blade Runner 2, by K. W. Jeter, in the form of a delightful authorial Easter egg. (Yes, there’s a Blade Runner 2, which is actually a decent book.) At the risk of digression (and patronising you), the premise of Blade Runner is that there are non-human “replicants” (biological robots) whom it’s difficult to distinguish from real human beings. In this authorised sequel, it transpires that certain of these replicants are licensed clones of actual human beings, who get paid “royalties” for the use of their DNA (are you getting the parallel…?). In the following passage, one such human is complaining:
“I understand it was a pretty popular model […] Lots of orders came in for it.” His face darkened into a scowl. “Not that you’d know it from the royalty statements that I get from the Tyrell Corporation. I tell you, man. That reserve against returns they hold back … it just gripes my ass.”
So, not wishing to “gripe anyone’s ass” (the very thought!), we’ve decided not to employ a reserve on returns. This is a risk, but a manageable one, which we’ll do by (a) as I’ve already said, making royalty statements and payments quarterly, (b) encouraging retailers and wholesalers not to place recklessly large orders, and (c) doing smaller print runs. Quarterly statements mean that returns can be absorbed more gradually, and be offset by incoming sales, rather than hit us in one big wave. Because our distributor is flexible and sensible, through them we will also be able to manage and temper over-enthusiasm for orders.
Royalties
Surprisingly, this turned out to be one of the bigger headaches. Given that we’re not offering an advance, our ambition is to try to reward authors more equitably, and what could be more equitable than a 50-50 split? You’ve spent unpaid years writing your book; we’ve spent a chunk of money and time putting it through three flavours of editing, proofreading and typesetting it, giving it a cover, marketing it, and so on. Let’s just get what we can for it and split it down the middle. But it’s amazing how revolutionary a concept this was, to people both sides of the fence. Some contract lawyers and publishers thought I was either unhinged or reckless for even suggesting it, and even those on the side of the authors were worried that I was upsetting industry norms. These norms, incidentally, often result in pennies per book, where 7.5% of retail price is considered “standard”, and the author’s cut of net receipts on discounted and foreign editions may as well not exist!
Let’s walk this through. After printing, distributor fees and retailer discount, there isn’t actually a huge amount left. However, on a £10 paperback, for example, publisher profits (not factoring in any admin or other costs – which we don’t) would be around £2.50 (let’s say). So, a 50-50 split would give the author £1.25 royalties, or about 12.5% of retail price. That’s not bad, compared to other traditional publishers. If we were to also guarantee that, whatever the discount or costs, the author will receive no lower than 10% of retail, then that starts to look like a pretty good deal. That’s the sort of rate that most authors only get after they’ve sold X thousand copies.
In terms of digital, we can afford to be even more generous, because our overheads are much lower. So, on a £4.99 ebook, the retailer and/or distributor might take 40%, which leaves about £3 to be split between author and publisher. So, £1.50 a book, about 30% of retail. Admittedly, you’d get 70% if you went direct through Amazon, but then you’re not benefiting from our editing, cover design, distribution, etc. And for copies sold direct through the WoodPig Press website, your cut will be closer to 45% of retail.
But the other thing we want to push back on is the retail price, for both print and digital. For too long, the author has lost out as retailers have tried to keep books at an unreasonably low price for the consumer, and publishers have passed on the cost of that squeeze to the author. So, let’s charge more for books. Are we seriously expected to accept that a customer is unwilling to spend more on a capuccino and a piece of Victoria sponge in the bookshop cafe than they are on the book they’ve just bought downstairs?4 For something that gives weeks, perhaps months or years, of interest and pleasure? And let’s invest more in printing and design, too, and make our books beautiful. Let’s earn that higher price tag.
I do realise that I’m starting to sound like Jerry Maguire before he got fired. But before you more hard-headed types start shouting, “Show me the money!”, don’t you think that if there’s any industry where “ideals” should not be a dirty word, then that’s one where the primary currency is dreams and stories?
Cover, Title and Blurb
I’m a professional cover designer, as well as an author, so I know the cover/title/marketing wrangle from both sides of the shop counter. The author wants a say. The author may also have no clue about the realities of marketing, and only cares that their protagonist is depicted on the cover with green eyes and a blonde perm. The best that we can offer here is to involve the author in the decision making process so that they’re not blindsided, and to make that decision one which is informed by effectively conveying the creative vision of the book to prospective book buyers. That aside, our say is final.
AI
I don’t know about you, but these are fast becoming my least two favourite letters of the alphabet. I made the mistake recently of going onto Threads and asking for the opinions of the masses as to what an AI contract clause should look like. I think I can sum up the avalanche of responses by the phrase, “You’re damned if you do, and you’re damned if you don’t.” There’s just no pleasing everyone. Some want to use AI just for this or that “necessary, innocent and excusable” purpose, while others think you’re the scum of the earth even if it’s just an AI search summary of “prepositional stranding” that you’ve just happened to glance sideways at.5
We’ve decided to take – well, not a middle ground (we’re staunchly anti-AI for the purposes of writing and creating), but what we think is a sensible approach. As long as you haven’t used it for any substantive contribution to the writing process, then we more or less don’t care. Use of standard spelling and grammar checkers? Fine. Anything that prompts you to change this or that sentence structure, adopt a different “voice” or vocabulary, or consider restructuring or cutting passages? No, that’s our job. And anything that writes for you? Double no. But what about research and general advice on this or that topic? That’s your call. Given their notorious inaccuracy, it’s very much a case of caveat promptor. If you’re a non-fiction author, then we would really like it if you had actual books and reputable sources to base your arguments and conclusions on, but we’re not going to haul you over the coals for the odd bit of using AI for “exploration” or basic “fact” finding (though do please note the scare quotes).
Ideally, we’ll be able to chat with prospective authors to clarify all of this, but please familiarise yourself with where our hard lines are.
Promotion
We will do everything we can to promote your book, and you’re welcome to initiate and be involved in as much of this as you feel comfortable with. Lots of authors are introverts, myself included, so we don’t want to be the sort of pushy publisher that gets you on the national radio of a highly religious country to talk about philosophy of science, only to be blindsided into giving a contentious opinion on whether or not the concept of God is still relevant (as a random example…). Anyway, this is us trying to be nice.
(Im)morality Clauses and Media Perils
Publishing can be a risky business. We have “media perils insurance” (as it’s sometimes called), which protects us if anyone goes after us for publishing anything containing libel, accidental copyright infringement, privacy breaches, etc. But it doesn’t cover authors directly, and a standard contract will state that an author indemnifies the publisher against such claims, so authors are advised to get your own professional indemnity insurance. In reality, the likelihood of any works infringing in this way are very small and probably just scare stories put about by insurance companies (… is my theory…).
One standard part of all publishing contracts is the provision to engage a lawyer to provide a “legal read” of a manuscript pre-publication, to check for risky things. This is often somewhat expensive, as are most legal things, and it’s not uncommon for small presses to split the cost of this with the author, should it be required – which, 99% of the time, it isn’t. But it’s there, anyway, and we now have a very nice and reasonably priced lawyer on retainer who will do just that.
The other way that publishers try to protect themselves is through what’s become known as a “morality clause”. So, if the author does something naughty that threatens to besmirch the publisher’s reputation by association, the publisher can terminate the contract. The Society of Authors and the Author’s Guild are both against this (see, e.g., here), and rightly so, to an extent. As a standard, “immoral behaviour” is just too vague and subject to interpretation, as is the phrase “no longer aligning with our values”. For this reason, a good agent will try to get such a clause struck out or reworded. If you look at recent scandals involving authors (e.g. Neil Gaiman or David Walliams), even if there is talk of the author being “dropped”, the publisher often doesn’t immediately withdraw all books and pulp them. This is probably because such authors have good agents. You can’t just let a book go quietly out of print or remove it from sale; the contract usually ties the publisher to certain minimum commitments. What happens instead is that future potential deals are shelved, and promotion is wound down. And such decisions are justified purely on business grounds: the public perception of the individual has lessened a demand for their book, to the effect that it is legitimate to scale back promotion.
However, we do want to protect ourselves and our reputation. If we sign you and something happens that changes the way the public see you, then in the first instance we would reach out to try to see if there’s a way that we can fix this. However, if things are really bad – you turn out to be a rabid anti-semite, a racist, are convicted of a serious criminal offence – and we really don’t want to publish your book anymore, then we won’t seek damages, but simply to terminate the contract, and all rights would revert to you.
The key thing here is how we define “reputational damage”. It has to be “demonstrable” and “material”. It shouldn’t be because you have some political or other variety of views that we don’t really like, you had an affair, or you support the wrong football team. It has to be demonstrable that your actions have had an impact on book sales, and we as a publisher have suffered reputationally by association with you – which is quite a high bar, to be fair. We’d rather not have this clause, and it’s one that is highly unlikely to come into play, but it does give us a clean and simple way of cutting ties if such things do happen.
Sanity Clause
We were going to have one of these, but after legal counsel, decided not to, because – as every disappointed child knows – there’s no such thing as a sanity clause.6
And that’s it. There are lots more clauses and issues, but they’re technical and boring. If you’re interested in what author contracts generally involve, and which bits are most likely to screw you over, then have a look at this excellent resource by the Author’s Guild, which walks you through a model contract, clause by clause.
Anyway, we hope we’ve been fair. If you have any concerns, comments or suggestions, then – as always – feel free to share them with us, publicly or privately.
Until next time.
Unless, that is, it’s a “work for hire” or flat fee contract, which is also known as a “screw you harder” agreement, where no royalties are paid past the “advance” (which isn’t technically an advance if … never mind).
Forgive me. I am at the very limit of my baseball knowledge here.
I have absolutely no idea where the latter is – where Paddington came from?
I’m assuming a two-storey bookshop here, with the cafe on an upper floor, and that they serve Victoria sponge. I do realise that this may not apply to you and your local bookshop. Please adjust accordingly.
I worked quite hard at this joke. I hope you appreciate it.
I am truly truly sorry. And Santa is of course real.