ASK MIMI #2: Publishing Contract Watch Outs

Hello again! I hope everyone had a wonderful Turkey Day. I know we did, despite the current challenges. Now it’s time to start thinking about Christmas and New Year’s! OMG. How did it come so fast?


Anyway, thanks to all the folks out there who sent in their questions! Keep ’em coming! Even if I don’t post it here, I will answer them!


This next question comes from Sara, who’s working on her second novel (congrats, woman!).


I’m wondering if you could help me out by just telling me what to be careful of if I finally reach that glorious moment where someone agrees to take me on. Are there certain subsidiary rights or other small print I need to be careful of? – Sara, Author


Hi Sara,


That’s a loaded question, but a good one! There is a lot to consider. I’m assuming you’re talking about getting a traditional publishing agreement, which means you’ll have to sign with an agent.


Here’s the thing, and I know it will ruffle some feathers out there (big time), but this is my view:


First, while a literary agent represents you to a publisher and will offer his/her thoughts about the terms, they do not always represent your best interests.


Why?


Because when it comes to agents, they have varying degrees of experience, varying degrees of competence, and then there are simply some bad apples out there, mixed in with the good apples. Bottom line, it’s just like ANY profession in the world, right? Lawyers, surgeons, accountants, plumbers, etc. It’s why we all love to read reviews.


But, alas, there is no YELP for literary agents, so before you sign with one, do your homework. Contact authors who are represented by them and ask if they are happy. Research any pending litigation. Check to see how many deals they are making, with whom, and for which authors. I.e., do your homework. No shocking advice there!


And after you sign with an agent, hopefully they will do a great job shopping out your book and score a glorious publishing offer for your book baby!


But after you jump up and down over scoring that offer, you have to put on your business hat, take a deep breath, and then remember a few key things:


1. Your agent is not a neutral third party. They run a business, and to make money, they need to make deals happen. That means they are acting in their best interest while also representing you. That’s a conflict of interest. Does it mean they will do something unethical to make the contract happen? No. Not at all. But you have to understand motives going into every business deal. Ask yourself: What is everyone after? What potential conflict might arise with my own interests? Keep sight of those as you think about the offer and your own needs, musts, and wants.

As an author, indie or traditionally published, you are the CEO of your company, which means you must take responsibility for your assets and your business, and you must know your risks. This is YOUR responsibility and no one else’s. Period.

Do not buy into the “everyone is my friend and looking after me” message you might hear from the parties. No, this doesn’t mean they are out to get you, and it behooves you to maintain a good relationship with potential business partners, but they are acting in their interest and so must you.

Publishers are out to make money. They picked your book because they think it will sell. And this is okay. We want businesses to make money, right? Companies employ people, pay taxes, give people careers, and drive industries. So I’m not knocking publishers, but I am pointing out that they are after profit, and there is no shame in that. Do not feel bad when you push to get a deal that’s best for you.

Most authors lean on their agents for this, but again, agents are the professionals who facilitate deals. They do not own your business. They are not your mother or best friend. They can offer valuable insights about the terms, especially if you’re dealing with multiple offers from publishers, but ultimately, it’s your name on that contract. You must live with it.

2. There’s a VERY strange habit practiced in the publishing world that you don’t generally see in most industries. Publishers make offers that talk nuts and bolts—advances, territories covered, languages covered, timelines for delivery, accounting methods. The initial offer covers the “meat” of the deal. But when the contract comes, the publisher and agent just assume you’ll sign it once the meaty bits are worked out. There’s a general “boilerplate” they’ve established from past deals.

WRONG. DON’T ACCEPT THIS.

The fine print is just as important as the meat. And in every other industry in the world, people will spend a lot of effort hammering out the fine print. For good reason! It matters.

And personally, I don’t give a hoot what all the other authors who came before me got. This is a contract that I must live with. Not those other people.

So while you might get an offer that looks great when presented in a very narrow format, make sure your agent knows that in your mind it’s not really a done deal until you see EVERYTHING and have reviewed it with your lawyer.

NOTE: this might irritate some agents. They don’t want extra work. They don’t want the deal falling apart. They don’t like authors who piss off publishers by rocking the boat by being assertive. Some agents won’t care at all. They get it.

Either way, this is when you must remind yourself of point #1. This is your asset, your business, and your baby. You cannot sign anything that it is not in your company’s best interest. Period.

Now, if you determine that you don’t care, you really just want the deal because it’s your dream to be a traditionally published author, that’s cool. It’s your quarter in the jukebox, and no one gets to tell you what song to pick! But do yourself a favor and at least know what you’re in for. Know the risks.

How?

Point #3.

3. Find your own neutral party to lay it all out. A literary attorney is a great option. There are quite a few out there who, for a fee (money well spent in my mind), will look over the deal and advise you about your contract and, at the very least, tell you what your risks are. Be sure to ask your author community for recommendations!

The Authors Guild is also a wonderful resource. https://www.authorsguild.org/  I advise every author to join for the simple fact that they advocate for us authors when the big players behave badly. And boy, do they act badly sometimes! AG also offers legal support to members. While they won’t negotiate for you, you can bet they will point out possible issues, so at the very least you’re educated! Really, it’s all about choices and you making the best one possible.

4. As for things to watch out for when it comes to publishing deals, especially when the “meat” is offered up prior to the contract phase, the list is very long. This is a great article that highlights some of the key terms in BOTH phases: https://www.morse.law/news/book-publishing-contracts

That said, here are some watch-outs from my own personal blunders and publishing exploits!

a. Does the publishing deal guarantee to get you into print? Because if that’s your goal, many publishers are offering digital-only deals these days. Small advances, ebook only. In which case, you’ll have to weigh the pros and cons of traditional versus indie. What will the publisher bring to the table that you can’t bring for yourself? Ask them.

b. Fight hard to keep sub-rights. These ARE areas where you can sell your work elsewhere. I know I have. And before giving up audio rights, make sure the publisher is willing to commit to actually doing the audiobook.

I gave up rights in two contracts. One publisher is known for doing audios and did them. The other isn’t and never did anything with the audio rights. Frankly, I would have liked to retain that right if they weren’t going to do anything with it. Nobody made money on it.

c. Ask for individual accounting if signing a multi-book deal. This will ensure you’ll see royalties a bit faster after a book pays out (i.e., the publisher makes back the advance). Joint accounting is yucky (yes, a technical term). You must wait for all of the books to pay out the entire contract’s advance before you’ll see a royalty check. The issue is, everyone knows that with a series, book 1 will sell the most, but is generally discounted. Books 2, 3, 4 and 5 will see declining numbers, AND usually they are priced higher, which discourages more sales. The point is, you’ll be waiting a lot longer if the entire advance for all the titles must be paid back versus each book’s sales being accounted for separately. You’ll likely see a royalty come in on books 1 and 2 right away with individual accounting.

Of course, if your books are bestsellers, you won’t care! The royalty checks will come in either way.

d. For DIGITAL deals, ask if there are any territories excluded from their current distribution channels.

I had one deal with a publisher where I discovered they did not have ebook distribution in places like the United Kingdom or Australia.

Are you kidding me? An author cannot build a career by excluding 1/3 of all possible sales in the English-speaking territories. Also, that’s leaving a lot of money on the table. So don’t just assume a publisher will have worldwide reach! Ask.

e. Non-compete clauses are tough because if you’re a hybrid author, you’ll want to put out your own books, and the publisher will not want you cannibalizing your own sales for the rights they acquired from you.

That’s fair.

But be sure you really understand what that “blackout” window looks like. There will be blocks of months in the year, on either side of the release for your traditional book, where you can’t release indie titles or even other traditionally published books. That window can add up to 4-6 months. Sometimes publishers ask for more.

That can get messy if you’re trying to make a living at this.

I would ask for this window to be tightened up (absolutely no more than 4 months total) during the early negotiation phase if you intend to put out your own books too.

f. Rights reversion is another tough one, but very important. Make sure you negotiate the best possible deal you can. Most contracts have minimum sales thresholds that trigger a rights reversion, but the thresholds are so low, you’ll likely never hit them. So, for example, if your title doesn’t have $100 worth of sales for three quarters in a row, then the rights fall back to you. Okay, well, one well-placed sale can push you over that $100, and the rights will stay put.

Ask for a higher threshold, fewer quarters, anything to help get your books back faster, because—and trust me on this—if they’re not selling, you will want them back! If they are old titles, the publisher might not push them. They will sit there forever, and I see that as an unutilized asset. In other words, if in your hot little hands, you could take those books, give them a new cover, add bonus content, create a boxed set, and make money off of them. Instead, they’re collecting dust at the publisher. Yuck.

Again, these are just a few “fun” things to think about that you might not find in a blog post or hear from your agent or lawyer, but there are many more elements, I’m sure.

The key, at least to me, is knowing what the major risks are and knowing that you’re getting a reasonably fair deal, keeping in mind that you’re just one author and one line on the publisher’s P&L.

Unless you’re a big-dog, A-list author, most of us don’t have a huge amount of leverage going in. However, you owe it to yourself to know as much as you can and walk away if it’s a bad deal. Walking away is ALWAYS an option, and I say no deal is better than a bad deal.

Good luck on your publishing journey! Break a leg!

With Love,


Mimi


WANT ADVICE?


Each week I’ll pick one question, or a few, from readers and aspiring authors about:


   – sex, relationships, & family


   – the writing process & business (trad. and indie)


   – unicorns, Bigfoot, the Chupacabra, & traveling mermen


   – the Universe and random crap


   – all of the things I am not an expert in, but have an opinion on! (That pretty much covers everything above.)


SUBMIT YOUR QUESTIONS HERE: mimi@mimijean.net (Specify if you want to be anonymous or if I can use your first name. Include your hometown or state/country.)


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