Book Contract Questions

The published version of Print-on-Demand Book Publishing can be purchased direct from the publisher, from online bookstores, or ordered through your local bookshop.

$14.95 from Amazon

Self Publishing

Questions? Comments?

How Publishers, Agents and Editors make Money

Note: I am not a lawyer (though I'm currently considering law school) and the answers below are my opinions, not legal advice.

Question) I don't like the arbitration clause in a contract I've been offered. The publisher is located in New York, so New York law would be applied, so can I get it changed to Arizona where I live?

Answer) I'd be really surprised if the publisher would even consider that, I would think it would be one of their most prized clauses. Otherwise, the author (you in this case) could bring all sorts of actions in local courts that would cost the publisher a huge amount of time and money to respond to, since they couldn't use their own staff or local lawyer.

Q) What's fair for an advance?

A) Depends entirely on the genre. Nonfiction how-to books usually run in the $5,000 to $20,000 range, unless the author is famous or it's part of a package deal. Big trade fiction deals often run into the hundreds of thousands of dollars. Stop by your local library and leaf through some Publishers Weekly's.

Q) Can I get a signing advance?

A) Depends on who you are. For work-a-day nonfiction deals, an advance is an advance, and the publisher gets around to paying it (in parts) on their own schedule. I've never heard of a how-to type book getting a signing advance in the sense that the money shows up before the work starts and is the author's to keep without obligation.

Q) What does "satisfactory in form and content" mean? Can I make it more specific?

A) You can try. , the Author's Guild has some nice language (paraphrase) "of professional quality as recognized by peers" or some such, you can probably find it through Google.

Q) If you're not a lawyer, why did you write a contract article?

A) The book contracts article is one of the first publishing related pieces I wrote. It was my reaction to making a whole raft of mistakes myself, mistakes that have cost me tens of thousands of dollars over the years and extreme frustration. The main reason I went into self publishing was because I really felt abused by trade publishers.

Q) What royalties can I expect for an audio book I've produced?

A) I've never been involved in an audio book, but my guess is the royalty would be lower, based on higher production costs. It's extremely unlikely that it would be higher, publishers always seem to start with the hardcover rate and then work their way down for everything else. If I had to guess, I'd guess around 10% of net with "net" being less than 50% of list. If by "produced", you mean you've already recorded the tapes professionally, then you're really acting as a packager, and it's more open to negotiation. Just remember it has to make sense for them, they don't care if it makes sense for you:-)

Q) My friend is willing to sell me an interest in his memoirs, do we need a contract?

A) Yes, you need a contract, but even more importantly, it's not likely you'll ever see any money unless he's already sold the memoir to a publisher. Memoirs are one of the toughest sells in publishing, everybody thinks their life is unique, but publishers reject tens of thousands a year. In any case, I can't give legal advice, you'll have to talk to a lawyer.

Q) Don't you worry about people stealing all the pages on your website?

A) It happens on a regular basis, but it's not something worries me. The search engines are usually smart enough to keep sending visitors to the original site, and what's more, you can use Google to track down plagiarists. Just pick a unique phrase out of something you've written, three or four words is usually enough, and search on it in quotes on Google. If you get too many results to look at, add another word or two to the phrase, and you'll quickly get to the point where the only results are your own page and anybody who has ripped you off.

Q) What do I do if I find somebody has copied my website?

A) I write them an e-mail, using the contact info on the site, and if that doesn't work, I e-mail the owner of record using the WhoIs database. If it still doesn't help, I e-mail the host, also found through WhoIs, and I threaten legal action, since it's their responsibility. I usually go through this a half-dozen times a year with no particular problems. I've it saves a lot of extra e-mailing to be direct rather than dancing around the issue. Here's an example of a recent e-mail I sent:

"You've posted copyrighted material from my site after removing the copyright. You even claim it as your own, which is out-and-out theft. It's usually third world sites I run into doing this, but you're in NY and should know better. The pages in question are the flowcharts, starting from the link at: (link was here)

Remove it from your site immediately and let me know or I'm going to turn it over to my lawyer."

Q) I'm fascinated by your book "The Hand-Me-Down PC" from 1995 and I'd love to translate it into Serbian, a language read by around 20.000.000 people. Can I have permission to do this and update it with other material from your website?

A) I wish I could give permission, but it's too complicated from a legal perspective. The Hand-Me-Down PC was published by McGraw-Hill in 1997, and they sold certain international rights to it. The newer stuff, poster and repair flowcharts, was published by Foner Books last year, and we may want to sell the book to a large publisher at some point, but would have a tougher time doing so if we granted any rights that could interfere. While Serbian rights wouldn't likely be a big sticking point for that, I'd need to hire a lawyer to help with the rights grant to make sure, and at $340 per hour, there's just no way it would make sense. Thank you for asking, and I encourage you to write a book on your own. I've done some translating in my life, and writing is actually easier.

Q) I've been offered a title in a series of books sold into classrooms, and the editor says the authors of the previous titles are thrilled with the results. As a working scientist, I'm won't be dependent on royalty income, but they want me to do a lot of work, the contract looks awful, and I don't want to get ripped off. Any thoughts?

A) I happen to be familiar with the publisher you mention and they have a horrible reputation. I'd look up the authors of the other books in the series (authors are never hard to find) and get their feelings about the project directly, not through the editor. If you really enjoy writing, I'd just get a decent publishing lawyer to sort out the best contract he/she can for you and go ahead and do it. Much better to pay a lawyer once, even at $300+ and hour, than to have an agent's hand in your pocket for the next 20 years.

Q) In your experience, can an author whose book has been published as POD sell it to a trade publisher?

A) I'm assuming here you're using POD to describe the big subsidy publishers like Author House, Xlibris, iUniverse, or the variants like PublishAmerica. I know at least one subsidy publisher, Booklocker, who will terminate the contract on request, it's written into the contract. The bigger ones tend to lock the authors up, but it depends on the contract you sign, and I've been told that the PublishAmerica contract is currently for 7 years.

If you are actually asking whether or not trade publishers are willing to republish books that originally appeared as POD, the answer is a resounding "YES!" Publishers love acquiring books that have already proved themselves in the marketplace, that's why there's endless consolidation in the publishing business.

Q) I've smartened up and I'm shopping for a publisher this time around, rather than resigning myself to X. Do you know what sort of advance I can expect for a second health book?

A) Advances depend on the genre and negotiating position. Most professional non-fiction authors expect 5 figures. Whether that's 10K or 50K depends on how big the market is perceived to be, whether the book will start life as a hardcover, etc. You really need to find an author's group in your genre and ask what people are seeing for advances these days.

Q) I signed a contract back in 1994 for a book that has received rave reviews over the years, but the publisher has barely paid me $1,000 in royalties, most of that in 1995. When I told him back in 1998 that I was fed up and would let him have all the rights for $500,000, he laughed and told me to read the contract. I want to sue him but I can't find a lawyer to do it, and I've talked to all the locals. Can you tell me where I can get a total of all the books sold since 1994 and help me find a really good lawyer to work on contingency?

A) The only freebie legal work I've heard of in the publishing industry is through the Author's Guild if you join and pay your dues, or political activism. I'd be surprised if you could get anybody interested unless you can prove the book actually sold more copies than your royalty statements reflect. When you consider that the average trade published book sells around 2,000 copies, it will be hard to convince anybody that you have a secret bestseller on your hands for the last decade without evidence. You can check the sales for the last two years through Ingram's callback system. By the way, I authored one book that got some great reviews in national circulation publications and sold less than 100 copies - no audience.

Q) I'm considering signing with publisher X and I couldn't find a contract on their website. Should I be ask for one?

A) Absolutely yes! The biggest trick of subsidy publishers is to save the contract for the last thing, so that the author is so far down the path they aren't willing to change course. Get the contract, if you don't like it, find another subsidy publisher or self-publish. If they refuse to send you the contract before they see the manuscript, it's because they're counting on their automatic praise of your submission to blind you to the details.

Q) I talked my publisher into letting me retain the copyright, now how do I register it?

A) All the info you need for U.S. is at http://www.copyright.gov/ I usually file the short form TX (books), takes two minutes, cost $30, and you have to send them a couple copies of the published book. I believe U.K. copyrights are free, but you have to send more books to more depositories. You might want to surf the web for reciprocity info, I only file in the U.S. and figure it's good everywhere by treaty, unlike patents.

Q) I had the rights to a book revert when it went out of print, in accordance with the contract. Another publisher is willing to republish it, but they're only willing to pay $500 for the film, and the original publisher wants $5000, claiming they invested more than that in the layout and artwork. Shouldn't the film revert to me with the rights?

A) As far as I know, the original publisher usually owns the film they sent the offset printer to have the book printed. I've often come across authors of older books who've talked about buying the film or plates back after the book went out of print. To me it's a question of how much it would cost you to have it redone. If buying the film is less, even if it's exorbitant, it makes sense. However, if you think your contract gives you the rights to the film, I'd definitely talk to a lawyer before doing anything else.

Q) How long do I have to wait after a book is published to find out if I'm earning any money?

A) The schedule for royalty reports should definitely be a part of your contract. The best you can hope for with a major trade is quarterly, with a 30 day delay for accounting. Semi-annual with 90 days for accounting (ie, 9 months) or even annual reports aren't unheard of. Some subsidy presses and small publishers run reports every 30 days, but if they accept returns, they'll have to be a reserve or a delay period.

Q) I'm a shy person and I'm embarrassed about contacting my publisher about sales before the first official report comes, so how can I find out how many books I'm selling?

A) Drop your editor a polite e-mail sometime and say something like, "My ______ (fill in the blank with: wife, friends, children, parents) are pestering me to hear how the book is doing," they can hardly get angry at you for asking:-)

Q) If I let my publisher copyright my book, does that mean they own it?

A) Who owns the books, or at least, who has the right to publish the book and create a division of the profits, is determined by the book contract, not by the copyright filing. I've heard from several authors who stood on registering the copyright themselves rather than letting their trade publisher do it, and who have been shocked to find out after the fact that this doesn't mean they own the book and can do whatever they want with it. Think of it this way, having a birth certificate does nothing to protect you if you sell your soul to the devil.

Q) Why do you recommend lawyers instead of agents for contract negotiation. Don't agents know better because they negotiate contracts all the time?

A) To reword a phrase from health education, agents are the gift that keeps on taking. You pay a lawyer once, and then they are out of your pocket:-) As to negotiating contracts, you don't want to hire a lawyer at random, you want to hire an intellectual property expert who's been involved in negotiating and litigating contracts. Also, many agents have divided loyalties, they can't help it. Agents make a living on a percentage of an author's work, unless they represent some extremely successful authors, the temptation is always there to cozy up to publishers so they can place more book deals and profit from the volume.

Q) What's the best way to copyright an audio CD?

A) I don't have any experience copyrighting audio. You could also call the copyright office directly and talk to one of their specialists - you have to be patient getting to the right person though, some of them are just seat warmers. If you have the financial resources and your question relates to a commercial product, you should invest in an hour of time with an intellectual property lawyer to learn the ins-and-outs, or at least buy and read a book on publishing law, like Kirsch's.

Q) Is it normal for the publisher to charge the author for the cover design?

A) It sounds VERY strange. Some cheesy publishers are sticking unwary authors with indexing fees these days, I've never heard of asking for cover art. Was this a major trade publisher? At some point, the publisher really has to shoulder some of the burden for publication or you're paying 85% for a printer and a distributor!

Q) My publisher sent me a contract that stipulates under discounts, "a 0.5% reduction for each percentage point below 44% of the cover." Is that fair?

A) It's similar to what the Authors Guild suggests in their "ideal" contract, which is pretty good. The idea is that you share the loss. McGraw-Hill actually PROFITS when they sell one of my books at a 1% off "deep discount." Sounds like you might have landed a gentleman among publishers, at least on the Discounts clause - unless they push all the discount books into their non-trade category:-(

Q) Do authors get extra payments from publishers for book promotions, readings, etc?

A) I've never heard of it, and only the big authors get reimbursed for travel, etc. I recently attended an Author's Guild meeting about book promotion in Boston. Most books get zero promotion, the window of opportunity to get anything out of the publisher is about 5 weeks, from a couple weeks before the book appears to a couple weeks after. I haven't seen a promotion requirement in a contract, but it wouldn't surprise me if some famous authors have them. Of course, there are something north of 100,000 new titles published in the US every year, and a handful of authors I'd call "famous."

Q) How many copies does it take to sell out an advance?

A) Depends entirely on the size of the advance and the royalty structure. The vast majority of authors work for very small (under $10K) or no advance, and the vast majority of advances never pay out - i.e, the author never sees another dime. Even large trades who pay established authors $10K and more in advances rarely expect the advance to pay out on a new book. Authors know this and try to negotiate for the biggest advance possible, since it's usually all they see. If you want an average guess for average non-fiction books with average advances from trade publishers, I'd guess around 5000 copies would pay out the advance. Again, most books never get that high. Seems to me I once worked out that the average new title sells 2,000 copies, and the mean is much lower, since bestsellers drag the number up and their are no negative sellers to drag it down. All this applies to "normal" authors, the fiction superstars get entirely different treatment.

Q) I have a book published by a small Canadian POD who used print on demand for production. My royalty statement shows only $0.53 (Canadian) per book. Am I being robbed?

A) It all depends on how they do their accounting, though you may be at their mercy if it wasn't spelled out in the contract. You can compute the Print o on Demand cost of the book, at least roughly, from the info on my page. However, you'll have to trust your publisher as to the discount they are offering. If they are selling at a 55% (trade standard) discount, and if the book is around 500 pages, then the 53 cents sounds around right for 12% of net from Lightning Source. If they aren't using Lightning Source, but simply printing POD short runs and selling them into distribution, they may be giving discounts as high as 80%. I don't know how much production work, editing, etc, they put into the book, but a 12% royalty does sound low for POD. I'm currently selling my $14.95 POD books at a 25% discount, which nets me around $7.50 a book, but of course, I'm acting as my own publisher. If it's any consolation, I only got around to doing this after selling over 100,000 books through a real trade publisher at a 15% of net royalty.

Q) Can a publisher take a manuscript you've sent in and publish it without ever telling you?

A) They would be stealing from you if they did that, and you would have no trouble finding a lawyer to sue them. They would subsequently find it very hard to get any new authors. I haven't heard of it happening in a very long time.

Q) I've been offered a contract by a Christian publisher with royalties of 6% for the initial 12,000 domestic and 8% above that. Is this an insult?

A) If your 6% and 8% are on the cover rather than "net", you're doing just fine. You might want to look through some back issues of Publisher's Weekly at the library (it's and expensive subscription), many stories about Christian Publishers lately, fastest growing publishing segment in the US. Also, if it is your first book and you think you have more in you, the most important thing is to get published.

Q) Are subsidy publishers required to market books due to their author contracts?

A) No subsidy publisher I have ever heard of actually generates appreciable sales for authors. For a fee they will do boiler-plate marketing, spending money on advertising that has no impact on sales for unknown authors. There are no short-cuts in this business. I don't want to sound like a broken record, but you can't buy marketing, you have to do it yourself.