Keller Media Blog

You’ve been offered a contract…now what?

by Wendy Keller, Literary Agent

Congratulations!  Some publisher has offered you a contract!  That’s a huge milestone!

Maybe they’re offering you money.  Certainly they’re offering you terms. Mostly, they’re offering you confusion. If you’ve never seen a publishing contract before, for sure it looks like a bunch of crazy gobbledy-gook.

Don’t worry. Over the years, even attorneys whose specialty isn’t entertainment or intellectual property law have told me the publishing contracts overwhelm them.  (Read: You are not alone in your moment of panic!)

I’ve negotiated several thousand publishing contracts now in my career – mostly for my own clients, sometimes as a hired gun.  These have included book deals of every sort – self-published, cooperatively published, traditionally published – but also audio, merchandising, infomercial, dramatic, distribution and other types of rights.  I’m not an attorney (and I don’t play one on TV) but I’ve picked up a few tips and tricks along the way.

PS: The majority of people who hire me to advise/negotiate on a contract they are offered by some third party have never even met me before!  I offer my consulting service a la carte.

What to Look At in a Publishing Contract

1. The most important clause is the “Grant of Rights.”  This means, what you’re giving up in return for what they’re giving you.  Even though we say, “I sold that book” the truth is, one cannot sell something that doesn’t yet exist.  We sell the rights.  I explain it like this:

Imagine you own a house.  The publisher or other rights licensor is like your tenant.   The house still belongs to you, but once you license it (rent it) you won’t be able to just randomly come in and throw a party in the back yard or have your grandmother live in the spare bedroom. It “belongs” during the term of the license to someone else, in return for good and valuable consideration.

  1. Will you let the tenants paint the house magenta and rip out all your stately oak trees?
  2. Will you let them live there but you still want to store your old Superheroes comics in the locked space in the garage?
  3. What can they do and what can they do under the terms of the agreement?

 

2. The second most important clause are the “Terms.”  How much money is being exchanged? Who gets what when/if your book hits it big? Is this number fair? How do you know?  What “tricks” exist inside the deal that could suck money out of your pockets?  Most people aren’t unethical, just greedy. How do you know if the deal you’ve been offered is reasonable against industry standards?  And if not, what can you ask for reasonably?

 

3. To an agent, the next most important clause is the “Option.”   This means whether or not you are obliged to offer this publisher the next similar work you do.  If they screw up, you won’t want to work with them again.  If you screw up, they won’t want to work with you.  If the book does GREAT, which all parties hope it does, will you want to stay with them when you could then get massively better terms because you’re a proven success?  If you don’t prove you want a long term partnership with them by signing an option clause, will they work less hard to make your first book a success, and how will that affect the future of not just this book, but your career as an author.

 

There are usually at least 14 separate clauses in a publishing agreement.  My best advice? Get helpUnless you’ve spent your lifetime reading these things, as I have done, you will probably be horrified by the deal you’re holding. And because authors are usually desperate to be published, and invariably believe their book will sell many thousands of copies – if not millions – the publishers often are, well, fairly clear that the odds are in their favor and they can, well, ahem, sometimes be a little bit unfair.

If you are looking at a contract and party who gave it to you knows you are unagented, it is 100% certain to be a “boiler plate.”  Boiler plate = NIYF.  (Not In Your Favor!)

But Won’t Bringing You In Now Ruin the Deal, Wendy?

Actually, any legitimate publisher wants one thing above all:  a happy author who will work their fanny off trying to sell their book.

  • If you sign a boiler plate deal and later discover things weren’t in your favor, you’ll be ticked off and they know it. (Still, they gamble!)
  • If you turn out to be one of the difficult types, they’ll have to put up with you all by themselves and can’t call your agent to tattle on you.
  • If you turn out to be a DIY publishing attorney, they’ll most likely walk on the deal because you don’t know what you’re talking about and one book isn’t worth that much to any publisher.
  • If the book DOES sell extremely well and you find out that instead of the lion’s you’re only getting the mouse’s share of the profits, it will cost you a lot more in legal fees than doing it properly from Day One costs.
  • There are people (like me!) who do this stuff as hired guns – for a fee – to help you get the best deal possible based on your goals and opportunities.

In summary, hiring a professional is probably your best bet.  Publishing contracts are complicated even for “real” attorneys to figure out. Find someone to help you before you sign.

<H3>To see how to hire me as a publishing (or other intellectual property rights) contract consultant, click here. </H3>

 

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