Dave Fessenden

Hi, Dave Fessenden here, to talk about writing issues, and today I’d like to discuss the issue of legalese, specifically in publishing contracts. I recently had to explain to a friend that the phrase “place of physical execution” means the physical location where the contract gets signed, and does not place the author’s life in danger! (Well, she knew that it couldn’t mean that, but it never hurts to ask!)

Why do attorneys talk this way? Who knows? I have my suspicions, though. (I once told an attorney friend that I was simplifying the wording on our publishing contracts, and he replied, “Don’t do that—it’ll put me out of business!”)

That brings up a critical question: when that publishing contract arrives in the mail, containing strange and obscure wording, what should you do? Sign it without reading it at all? Hire an intellectual-property attorney, who may charge you almost as much as your royalty advance?

You probably don’t want to go in either direction, but there are some definite steps you can take:

1. Evaluate the publisher that is offering you the contract. Do you know other authors who have had a good experience with this company? If so, you can be pretty sure that the publisher is playing fair with you. The agreement is probably a standard first-time author’s contract — it may not be a generous offer, but there’s no reason to suspect any legal hanky-panky. You shouldn’t sign it without reading it, but you also shouldn’t be suspicious of every single word.

2. Do a little research on book contracts. One resource I recommend is Kirsch’s Handbook of Publishing Law, a surprisingly entertaining read for such a detailed and comprehensive reference work. Kirsch’s Handbook covers all the clauses of a typical publishing contract in detail. Invest a little time between its pages and you may understand your contract better than your editor!

3. Check the contract for the details you negotiated before you accepted the publisher’s offer. What? You didn’t know there were any details to negotiate? That’s not a problem. The details can still be discussed if you haven’t signed anything. Some bargaining points include:

Royalty advance: An advance is the amount of royalty the publisher will pay you in advance (hence the name). A common rule of thumb for an appropriate advance is the book’s anticipated royalties in the next year or so. The typical advance on your first book, if you even get one at all, is pretty small — the publisher doesn’t want to risk too much — but there is usually some room for negotiation. You won’t talk them into three times as much as they offer, but a 20-30% increase is not unreasonable — and in some cases, you might even ask for more. The worst that can happen is they will turn you down.

Royalty percentage: Royalty rates used to be a standard 10 percent of net sales, but they have risen over the past 10 or 15 years. You can always ask for a higher percentage, but a lone author is often not in a great bargaining position. An alternative is to accept the standard royalty rate for the first, say, 20,000 books sold, and ask for a higher rate after that. Since most publishers would be thrilled if a book sold over 20,000, they may be willing to accept that.

Author’s copies: If they offer you 25 free copies, ask for 50. It’s a small concession for them, and it allows them to feel generous. Besides, you get 25 more copies!

Deadline for author to complete ms.: If the book is not completed, make sure they are giving you a reasonable deadline. If not, set yourself an honest deadline, taking into account that life always throws you a curve or two. Your publisher can usually give you extra time if you need it.

4. As you review other clauses in the document, you may find them easier to understand and accept if you try to put yourself in the publisher’s shoes. One standard clause, for example, allows the publisher to get out of the contract if the author’s reputation has been seriously tarnished. Some novice authors take that as a personal insult, or they worry that the publisher will dump them if they get a parking ticket. But if you were a publisher and your author of a book on Christian integrity got caught in the act of committing a felony (and yes, occasionally things like this do happen), wouldn’t you want to get out of the contract?

5. When all else fails, ask your publisher what a particular contract clause means. They should be perfectly willing to explain it to you. Don’t let them dismiss your questions with “Oh, that’s just a standard clause.” Tell them, “I’m sure it is, but I would like to be sure that I understand it.” No honest publisher will argue with that.

If you are still unsure about the contract, you can often have it reviewed by a local attorney or an experienced literary agent for a modest fee. And of course, you most certainly should pray about it! God gives wisdom to those who ask (James 1:5).

Concept to Contract by Dave Fessenden

David E. Fessenden is an independent publishing consultant with degrees in journalism and theology, and over 30 years of experience in writing and editing. He has served in editorial management positions for Christian book publishers and is the author of seven books. Last fall Dave joined WordWise Media Services as a literary agent, specializing in nonfiction genres such as theology, biblical studies, church/social/cultural issues, and reference, and fiction genres such as sci-fi/fantasy and historical. His blog on nonfiction writing is at www.fromconcepttocontract.com