Tuesday, 10 December 2013

'My Publisher' is Usually Not What you Think

People are so desperate to say the words 'my publisher' that they'll sign with anyone without putting their brain in gear first and checking contracts. They sign everything away in their eagerness to be able to say, 'my publisher says.'…

I have to be honest and say each time I see the words 'my publisher' or, 'my editor' said on Facebook, I cringe. It is obvious they are with a small time one man show and just love saying those words to sound like a real author. The sad fact is, most people using those words will find later down the line they've been had. They aren't real publishers in the way the publishing world would look at it and offer nothing but taking half your money off you while offering use of an editor with less writing ability and editing knowledge than you probably have.

Small publishing houses can be good, but the majority are rubbish. Anyone can set themselves up as a publisher. I can and so can you. Writers desperate to look like real authors are signing away their rights to everything past, present and future without even realising - or caring. Not until it's to late that is, then they care. They care desperately. The ones duping them laugh at their naivety all the way to their banks. If people aren't desperate, why else would they sign anything without checking with a professional first?

If anyone calling themselves a publisher isn't getting your books into the major shops and outlets and is only doing what all self published authors can do themselves, then why the **** are you all signing away your profits to someone inexperienced and out to make money from your work? Why aren't you getting the contracts checked? Why would you even need them?

One of the ways these self proclaimed publishers manage to do this to so many is because they join the writing groups and pages and become one of the known names. People then trust them (I trust no one) and when they set up as a publisher, they are flattered when told their books are amazing and much better than the others. False flattery works every time and hey ho, the writer signs away everything to the person saying it.

So many people I know have signed with these small time names and many have later walked away desolate knowing they were stupid to have not checked. Quite a few are tied up in knots and know  their writing career is over unless they want to hand everything over to the one they signed with forevermore. Many knew the people they signed with, trusted them and now realise they've been fools. Don't let this happen to you.

If you or anyone you know has signed with anyone or about to, is the book in major book stores or going to be? Is it just going to be distributed to all the major online stores? If it is the latter, why are you giving the rights to your work away? Unless they can offer you far more than you can do yourself in regard to FREE services offered (artwork, editing etc.), distribution and sales, forget it and run away. Their contract is only worth money to them - not you.

Before you sign with anyone sit back and take stock for one moment. Put your brain into gear and act as you would with any other business transaction. Would you take any other major contract and sign it without having someone check it over first? If the answer is yes, then you deserve what you get. If the answer is no, then why on earth would you do it with something so important as this?
The new style one man publishers are seeing you all coming. They are on the increase.

Just look at Facebook timelines and all you'll see is people writing their first second or third books talking of 'my publisher says…' and 'my editor says…' and the truth is, none is with a proper publishing house. They just want potential readers to think they are.

Before you sign away your earning potential to a stranger for the rest of your life (which is what most of you have done without realising or even caring), as yourself this. When have you ever seen a top earning, famous author sitting on Facebook saying those same words you all love to say? No, I've never seen it either.

It's like anything in life, those with real money never talk about it or flash it about and anyone with a real publishing contract doesn't have a need to keep saying the words 'my publisher' every opportunity they get either.

For those of you who haven't yet done it, but are seriously tempted please - GET THAT CONTRACT CHECKED FIRST. Not by someone they recommend either!

Article by
Kevin Stewart of Contracts for Publishing:

Do you have a publishing contract but no agent? Even if you don't yet, it might happen and the following article is a must read. Kevin Stewart and Stephen Aucutt are two of the top Specialists in Publishing Contracts seen in the U.K. today and I would advise anyone without an agent to seek their help if offered a contract. It may well be the best small outlay you'll ever have made.
Below is an article kindly submitted by Kevin Stewart. Details to contact Stephen can be found at the end of the article.
A New Year’s Contract

Every New Year, a scene is played out in many places across the UK.  Let’s sneak a look…
Dear Diary
It’s a New Year.
I am going to write a book.  It is going to be published.  It’s going to be fine because I have (big drum roll….) a Contract from my publisher.  What can possibly go wrong?  And so to bed.
Sounds good; but let’s fast forward a few months just to be sure our newfound friend is in the clover they imagined.
Dear Diary
It’s now winter again.  It suits my mood.  How much did I make from sales of my book?  Could I even buy a copy of it?  And now I cannot even get my own rights back because I ‘assigned’ everything apparently!  What did I sign?  What was I thinking?
I think it’s time we went, don’t you?
So, what is going on?
When you write, in English law, you establish a copyright by the very fact of ‘putting pen to paper’.  There is no need to achieve a specific literary level or requirement to register your ownership anywhere.  It just comes into place at the moment the words are recorded. So long as they are original to you, that’s it.
Copyright is a property right: like a house.  It can be bought, sold, lent, rented, given away.  You can do that with the whole of the copyright or just bits of it.  For example, you can allow somebody to exploit your work in English but retain ownership of all other languages; or you can licence printed book rights but hold back film and TV rights.
There are two main ways that publishers deal in copyright:
1                     By assignment.   For an author that is not usually the preferred route.  This means you transfer ownership to the publisher.  Of course, it may be worthwhile if the money is right; but it is uncommon for novels, children’s books and other works that you have created at your own whim.  This is the publishing equivalent of selling your house.
2                     By exclusive licence: The copyright stays with you (like the freehold in a house) but you grant certain rights to the publisher for their exclusive use.  In other words, they alone can deal in the rights you licence – you only retain the balance of the rights. This is the equivalent of retaining the rights to live in part of the house but not to be allowed into certain rooms because you have rented them out.
Why do you need a Contract?
The more complicated the arrangement, the more opportunities there are for elements to be misunderstood if they are not set out properly.  It therefore follows that a good Contract addresses all likely eventualities.  For a publishing Contract this will include the rights to be granted (and withheld), the means of exploiting those rights, the reward to the author, what the author is to deliver, with whom responsibility lies for the content and how either party may terminate the Agreement (and the consequences).
What is material to the Contract?
A century ago the average major publisher’s Contract was 4 pages long, now it is 10 or more!  In part this is because publishing is more complex than it was in the early twentieth century.  With new technology, new routes to market, and new legal issues to be concerned with, there are many elements that a good Contract should consider.  Yet we still see many publishers using documents that are no longer than their 1900s’ equivalent.
The length of the Contract is actually irrelevant.  However, the shorter the Contract, the less likely it is to be author friendly and any review is as likely to concentrate on what is missing rather than what is actually on the paper. The parameters for setting out a publishing Contract are frighteningly simple:
1         What is the author going to do?
2         What is the publisher going to do?
3         What are the financial arrangements?
4         How does one party ‘get out’ of the Contract if things go wrong?
These simple formulae are the subject of many articles and even books.  The Society of Authors offers a very useful Guide to Publishing Contracts. Alternatively, CLARK’S PUBLISHING AGREEMENTS A Book Of Precedents Eighth Edition is the publishing world’s ‘Bible’ on things contractual; but it is probably not for the uninitiated.
The following need to be considered major points any publishing Contract.
Primary Author obligations
1          The author has to write and deliver the work to an agreed specification.  You need to ask yourself: (i) can I meet the delivery date?  (ii) what am I supposed to deliver?  (iii) what happens if I fail or there is disagreement?  Primarily, do I have to pay any advance back (not unreasonable) and can I get my rights back at that point?
2          The author usually has to clear the use of third party material that s/he author wants to use in the book.  It is, after all, your choice to include quotations.  But are you responsible for clearing what the publisher want to include?
3          The author must avoid including anything in the book that will put the publisher at risk of e.g. a libel or copyright infringement claim.  You need to look at the warranties and, more to the point, the indemnity.  The warranties tell the publisher that the book is e.g. not libellous; the indemnity confirms that you will bear any costs if there is e.g. a libel claim.  There is little you can realistically do about this as you are the person putting the words on the page.  The publisher does have a right to expect you to back up those words.  The truth is that great care has to be taken over the content; the Contract issues are secondary to that and, hopefully, will never be implemented.
Primary Publisher obligations
1          The publisher should publish the book by an agreed date (and preferably in an agreed format e.g.  a hardback or paperback).  It is, after all, a ‘Publishing Agreement’ so no publisher should refuse to commit to publish within x months of delivery and acceptance of the script.
2          Having published, the publisher should promote the book for sale.  Given their investment, there is no practical point in them not doing so.  Even if the Contract does not spell out what they will do, you should exercise caution before committing yourself to a publisher who does not appear to have any plans.
3          To pay the author on time.  All payments (fees, advances) should be payable on stated events and accounts and royalty/rights income payments should also be regular (yearly at worst)
Note that if you are asked to pay for anything in relation to either publication or promotion, that would be an indication that you are not dealing with a traditional publisher but are possibly straying into dealing with a vanity publisher.
Financial terms
1                     You may be paid an advance.  This is a sum paid by the publisher against the royalty earnings they expect to pay you from sales.  It is a little like a loan in that the earnings have to be earned back before sales generate income for you.  However, unlike a loan, you should not be expected to pay back any unearned part unless you are in breach of the Contract.
2                     Alternatively there may be a fee.  This is a simple payment and is usually made instead of paying you any share of royalty and rights income.  Again, you should not expect to pay any part back unless you are in breach of the Contact
3          Publishers will pay royalties. This is a percentage of income generated by sales of the publisher’s own products.  It is either a percentage based on the publisher’s recommended retail price (though often with reductions for high discount sales) or the publisher’s receipts from their customer.
4          Publishers generally cannot exploit all your rights themselves so often licence certain rights to third parties. You then receive a percentage of income received by the publisher if they do so.  For example, a UK publisher might acquire from you the right to licence translation rights to third parties and then licence a French language edition. .
5          When is the money payable to you? As noted above, it is essential that you know when to expect payment
6          What charges can the publisher make against your account?  Are you paying for e.g. a libel read, an index, revisions to your book, etc?  Do you have any say over what sums are involved or whether the ‘service’ is actually necessary?
Primary reasons for terminating Contract
1          Publisher’s right to terminate
(a)       Author’s failure to deliver anything.
(b)       Author’s failure to deliver an acceptable script. Care should be taken to define what ‘acceptability’ is based on.  It means neither can change their minds without the other’s agreement.
2          Your right to terminate
(a)       Publisher’s failure to publish.  You should be able to terminate after notice to remedy has been served and the book remains unpublished
(b)       Publisher’s failure to pay on time  Ditto
(c)       Publisher’s failure to keep book ‘available’. You should be able to serve notice to reissue the book or revert the rights to you.  The critical issue is defining ‘availability’.  Whose editions keep the book available?  Does an eBook or Print On Demand edition’s availability achieve this (regardless of it generating no sales)?
(d)       Publishers goes ‘bust’:  If they go into Receivership or liquidation then you should be entitled to revert your rights
3                    Consequences of termination
(a)    if the publisher terminates then you risk having to pay back their money
(b)   If you terminate you need to clarify what happens to the money you are owed and what happens to any existing stock and their right to participate in income.  The answer to the latter two depends very much on why you are terminating the Contract.
And then…
Assuming that each of these issues is adequately addressed, all you then need to do is understand what the ‘norm’ is in terms of what a publisher should do and should be allowed to do.  For example:
1                    Why should they hold the translation or film rights if they do not have anybody actively licensing the rights?
2                    What is a reasonable reserve against returns?
3                    What is a fair percentage for royalty or rights income?
4                    What exactly are volume rights?
It’s simply impossible to second guess every issue you may come across in an article of this type.  If anything, it is the need to know and understand the publishing business to this level of detail that should lead authors to seek agents or other specialist professional advice on the specifics of publishing Contracts. What is critical is not an intimate knowledge of copyright and Contracts or general law, but the application of the business model to the Contract.  Understand the publishing business and the Contract falls into place.  Fail to do so and you will only see what is in front of you – not that what is there is ‘odd’ and certainly not what is missing.
Let’s be blunt, authors and publishers need certainty from their publishing Contracts.  They should have Contracts which properly and fairly address the practicalities of publishing.  Each needs to be empowered to go about their business assisted by the Contract, not weighed down by it; and they need to be able to have a dialogue that prevents the Contract becoming a bone that sticks in either’s craw.
Yet beyond all this, do remember the key word in any publishing Contract is ‘agreement’.  It is not a gladiatorial contest where one side ‘wins’ and the other, of necessity, loses.
And, being given a Contract to sign, never means you HAVE to sign it.  Everything can be questioned and may be negotiated.  You would not sell your house or car on terms you did not understand; so why do so with your book?

Contracts For Publishing
The foremost expert in the field of practical Contract preparation and negotiation, combining an understanding of Publishing Contracts with the business of publishing.

The independent, specialist business of providing an all-round professional Contracts service can be said to have begun in late 1993 with the establishment of Roger Palmer Limited, the company Stephen Aucutt joined in the summer of 1994. Following Roger’s death, Stephen established Contracts For Publishing Limited in August 2002. Since then the business has thrived, enjoying constant growth of its client list spanning agents, publishers and other rights owners and providing services to all members of the publishing community, be they first time authors or long established publishing houses. Stephen Aucutt has been an independent Contracts Consultant for twenty years and previously Contracts Manager with Reed Children’s Books (now Egmont) and Hodder. Contributor to CLARK’S PUBLISHING AGREEMENTS A Book Of Precedents 7E and has provided training at Publishing Training Centre. Over 30 years’ experience in publishing Contracts.
What can we do?
• draft, vet and negotiate contracts, whether through the licence of rights or assignment of copyright, across all types of rights (author/publisher; author/agent; translation; etc.);
• supply templates for all types of publishing contracts and associated documents (like remainder or reversion letters);
• advise you of appropriate terms and conditions for inclusion in your publishing standard Contracts and for specific deals;
• differentiate between the nuts and bolts of publishing contracts and the key elements of your individual requirements in order to bring your negotiations to a fruitful conclusion;
• offer access to an unique blend of knowledge, experience and industry reputation;
• apply their know-how acquired ‘at the coalface’ to your business;
• enable you to conduct your business safe in the knowledge that you have solid contractual foundations;
• reviewing and check the accuracy of royalty statements.

Contracts For Publishing Limited
Folly Cross Cottage
EX21 5ST

Tel:  01409  281144

Web: http://www.contractsforpublishing.co.uk
Contracts For Publishing Limited, registered office The Offices, The Elms, North Road, Holsworthy, Devon, EX22 6HB, registered in England under No 4494735.

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