Before signing a publisher’s agreement, it should be thoroughly checked. Caroline Walsh introduces the key points of this very important contract.
So, you’ve done the difficult bit and persuaded a publisher to make an offer to publish your book. But how do you know if you’re getting a fair deal? And what should you be looking out for on the contract? I would always advise an author or illustrator to engage an agent. An agent will ensure that the contract gives you the best possible chance of maximising your income from a book. Alternatively, the Society of Authors (see The Society of Authors) and the Writers’ Guild of Great Britain (see The Writers’ Guild of Great Britain) will both check publishing agreements for their members. In addition, there are lawyers who specialise in publishing contracts and for those who prefer to go it alone, there are some useful books on the subject listed at the end of this article.
The very first thing to be clear about is what is being licensed to the publisher. For a new book one expects to grant to the publisher, for the legal term of copyright, the exclusive right to publish and sell the work in certain forms. The standard grant is of ‘volume form’, which means all book forms (hardback, paperback, other formats). However, the offer or contract may also state other forms, for example serial (newspaper and magazine rights) or audio rights. Some publishers’ contracts include all-encompassing wording such as ‘all media forms currently in existence and hereinafter invented’. This in effect hands control to the publisher of a wide range of rights, including electronic, dramatic (film, television, radio), merchandising and so on. In such a case, it’s likely that the author’s share of income from such rights will be less than it would be were the author to reserve those rights and have them handled separately.
Territory states where the publisher has the right to sell or sub-license the book. For picture books of all kinds, fiction and non-fiction, UK publishers generally require world rights as the UK market alone is not large enough to sustain the costs of four-colour printing. US publishers are lucky enough to have a sufficiently large home market to mean they are not reliant on foreign sales and therefore will not always require world rights.
We’ve all read the newspaper headlines about huge advances, but the fact is most children’s book advances currently fall within the range of £1,000–£25,000. For books that will be published in the trade (i.e. by a mainstream publishing house and where the book will appear in bookshops) most offers are framed as an advance against royalties. Advances may be paid in one go, on signature, but don’t be surprised if the publisher proposes paying half on signature and half on publication, or in thirds (signature, delivery and publication), or even in quarters (signature, delivery, hardback publication, paperback publication), though the latter is more common when the advance offered is substantial.
As a very basic rule of thumb, hardbacks attract a 10% base royalty and paperbacks 7.5%. Bear in mind that on picture books these figures will be shared between author and illustrator. Sometimes, children’s black and white illustrated fiction titles also bear a small royalty for the illustrator, which will come out of the total royalty. Most novelty books, including board books, work on a smaller royalty, for example 5% or even less because of the high production costs and relatively low retail price.
As previously mentioned, picture books in the UK are very dependent upon publishers selling American and foreign language co-editions. Therefore, it is important to note on the contract what the author’s share of any such co-edition deals will be. These generally fall under two categories in the contract:
- If the UK publisher prints for the foreign publisher, the books are usually sold for a fixed price per copy as ‘royalty inclusive’ and the author’s and artist’s share will be expressed as a percentage of the publisher’s price received. These deals help to get the book published by bringing the unit cost down and they begin the process of earning out the advance.
- US and foreign language sales also fall under the heading of subsidiary rights. In this case, the UK publisher may or may not print the books, but the US or foreign publisher will have agreed to pay an advance and royalty for the right to sell the book in their territory (a ‘royalty exclusive’ deal). The author’s and artist’s share in this instance shouldn’t be less than 50% and it could be much more. If a book is particularly sought after by foreign or US publishers, such a royalty exclusive deal could mean that the original UK advance is earned out immediately.
Other subsidiary rights include reprint rights (large print, book club, paperback reprint, etc), serial rights (the right to publish in newspapers and magazines), anthology and quotation rights, educational rights, audio rights and so on. There will usually be a percentage listed against each right and that is the author’s share of any deal. Generally the author receives at least 50% on these deals and more in the case of serial, US and translation rights. The rights listed in the sub-rights clause should be checked against the opening grant of rights clause to see that they conform.
Delivery and publication
There should be clauses in the contract that state the agreed delivery date of the book and give some indication of what is expected, for example ‘a work for children to be written and illustrated by the said author to a length of not more than 25,000 words plus approximately 50 black and white line illustrations’. There should also be an undertaking by the publisher to publish the work within a stated time period, for example ‘within 12 months from delivery of the complete typescript and artwork’. There might also be an indication of what the published price will be.
Copyright and moral rights
As you are licensing your work, you should retain copyright and there should be a clause that obliges the publisher to include a copyright line in every edition of the work published or sub-licensed by them. The author’s moral rights are also often asserted within the contract.
Though the publishers will generally insist on having the final decision regarding details of production, publication and advertising, they should agree to consult meaningfully with the author over the blurb, catalogue copy, jacket and cover design. There should also be an undertaking to supply the author with proofs for checking and enough time for the author to check those proofs.
Publishers usually account to authors twice a year for royalties earned. Even if the advance has not earned out, the publishers should still send a royalty statement. Royalty statements are notoriously enigmatic and vary from publisher to publisher. Mistakes on royalty statements are more common than one might like to think and an agent will be used to checking royalty statements carefully and taking up any anomalies with the publisher.
Electronic or ebook rights
The electronic or ebook market is growing quickly, with a proliferation of devices and formats for accessing ebooks on the market. Publishers are rushing books into ebook format and establishing protocols with online retailers. Ebook development currently encompasses several different forms: straightforward verbatim text; ‘enhanced’ ebook, i.e. with added material such as author interviews; ‘apps’ for smart phones; and some children’s novels are even available in a ‘game’ format for reading on one of the popular handheld devices. Authors should take care to retain the right of approval over every aspect of these enhanced electronic editions.
It’s important to ensure that the author can get back the rights to their book if the publisher either fails to stick to the terms of the contract or lets the book go out of print. Historically, if the publisher left a book out of print for 6–9 months after receiving a written request to reprint it, rights would revert. However, ebook and print-on-demand formats mean that standard ‘stock level’ reversion clauses no longer provide adequate protection and new triggers for reversion need to be agreed. This might be a rate of sale or revenue threshold. It is well worth reclaiming rights to out-of-print books as it may well be possible to re-license them later on.
A small but important clause that may need to be added states that the publishers shall not assign the rights granted to them without the author’s express written consent. This gives the author at least a degree of control over the book’s destiny if the publishing company runs into trouble or is sold.
Educational publishers’ contracts
Many children’s authors begin as writers for educational publishers and quite a number continue to work in this field alongside producing books for the trade market. Educational publishers usually commission tightly briefed work. Advances are generally modest and the royalties are based on the publishers’ price received. However, substantial sums can eventually be earned. Educational publishers usually expect to be granted a very wide range of rights and while it makes sense to grant audio or electronic rights where the publisher has the capacity to produce or license such formats for their market, it may be possible and desirable to reserve, for example, dramatic and merchandising rights. However, discretion is needed here. If, for example, the publisher is commissioning writers to create stories about a given set of characters created by the publisher, then the publisher will rightly expect to control such rights.
Caroline Walsh is a literary agent and a director of David Higham Associates Ltd (www.davidhigham.co.uk). She specialises in the children’s book market.