Radio Interview with the Al Cole on the People of Distinction Show November 17, 2020
The last few sections described the various contract clauses you might encounter and what to do about them. Here is a summary of the major clauses to ask the publisher to delete or change (or ask your agent to make the request on your behalf, if your agent doesn’t already plan to suggest these changes). In many cases, publishers will readily make these changes; in some cases, they will offer a compromise; in other cases, they will say they can’t make the change.
Editors commonly have a general idea of what changes they can make, and they might be able to agree to some change on the spot. In other cases, they will have to ask the senior, managing, or executive editor above them or the publisher. Sometimes they will simply say no, because they know they can’t do something. Then, it’s up to you to decide if you can live with the changes the publisher agrees to make.
In general, if you see a lot of changes you would like to request, ask for the changes or deletions which are most important to you, and don’t ask for minor changes, so you don’t come across as difficult to work with. Following are some of the major contract clauses to ask to include, delete or change if they appear or don’t appear in a contract offered to you.
In particular, some of the rights to exclude if the publisher is agreeable are:
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Some additional clauses in contracts deal with publicity, book excerpts, pay to play, and co-author or co-publisher deals. Here’s what to expect and how to deal with them
Often specific details about publicity aren’t included in the contract, but the general idea is that the author agrees to help support the book through PR efforts. In turn it is to the advantage of the author to do as much PR as possible, and often authors hire their own PR people to supplement whatever the publisher does, which often isn’t very much beyond sending out review copies for a book by a non-celebrity author.
Whether the contract calls for it or not, an author is normally expected to provide a photograph and complete an Author’s Questionnaire, which includes questions about personal and social media contacts and suggestions for sources of contacts (such as the members or leaders of organizations in the subject area of the book). In addition, you will usually be expected to use your best efforts to promote your book through the social media and participate in marketing the book.
Also, the publisher may ask you to be available for publicity purposes, such as being on call for 10 days starting on the book’s publication date or appearing on any and all radio, TV and other publicity venues the publisher feels will increase the book’s sales. The contract may also state that you shouldn’t engage in any actions that will detract from sales, such as getting caught engaging in illegal or unethical activities, which you don’t want to do anyway, since this may subject you to shaming on the social media or arrest. So if this kind of language is in your contract, there’s nothing to object to, since you want the same results – more sales.
The publisher may also ask for the right to publish without any payment a short excerpt from the book (say up to 2000 words) to help promote it, and you will normally have this right, too. Many contracts won’t have these specifics, but if it does, it’s fine, since such efforts will help the book.
In some cases, generally for non-fiction books, the publisher may ask for a non-exclusive right to use brief excerpts from your book in a compilation it creates or hires a writer to compile and edit, or which is written for it by another author. Then, the publisher will typically indicate a price you will be paid for an excerpt, such as for $100 for up to 15 pages, $200 for up to 30 pages, and $300 for up to 45 pages, and you will get all of this money, without a percentage to the publisher. Since this payment for excerpts is basically found money, should the opportunity arise, such an agreement is fine.
If you are writing the book with another person who is named as a co-author, normally all of the authors will be asked to sign the agreement. This clause simply restates the obvious, that it is assumed that all of the authors equally share in the rights and responsibilities, although if the contributions and royalty shares in the book aren’t equal, this should be spelled out, such as indicating that a certain percentage goes to each author (or if you have an agent, the agent will commonly receive the payments and pay the amount due less the agent’s commission to each author, though sometimes you can arrange to have the payments sent directly from the publisher to you, any co-authors, and the agent – which is ideal, since you get your money right away.)
In the event you are have set up a corporation and the contract is with the corporation, you normally have to agree that you will be personally responsible for any obligations of the author.
Sometimes the agreement will specify how the author’s credits should be listed where there are two or more authors, such as stating they will be credited alphabetically. But if there is one lead author, that name should go first; if more than two, the other authors can be listed alphabetically or in an order based on the relative contributions of each author to the book. If this clause is included, revise it to indicate the way in which you are apportioning credits or leave it open, so you can later work out the specifics with your editor. If there is only one author, the clause won’t apply.
Still another clause in some contracts will indicate that you agree that the publisher publish this book under an imprint or with another publisher or entity, if the publisher wishes, but the publisher will remain responsible to fulfill all of the terms and conditions described in the contract.
So far only a few traditional publishers have a clause which commits you to buy a certain number of books, but this clause can be a problem if the purchase commitment far outweighs the amount you get up front as a royalty. Commonly, such a requirement is only imposed on new writers or writers who have had a small number of sales on past books with that publisher or with other publishers, based on the rationale that the publisher wants to limit its risk if the book doesn’t sell as well as expected.
Another reason is that this requirement might motivate the author to do more promotion and publicity to sell more books or well more books through speaking engagements, workshops, and seminars. The publisher may also describe this as a “win-win arrangement for both the writer and publisher,” as one publisher’ rep told me, since it helps to motivate the author to more actively market and promote his own books.
But whatever the publisher’s rationale, this is a bad deal for a writer, unless you are already doing a number of programs where you are fairly confident you can purchase and sell the number of books required. For example one writer who made most of his money speaking, normally sold at least 2000 books a year, so this purchase requirement was fine, though the publisher didn’t do anything else to promote his books beyond sending out some review copies. But if you are not in a position to sell all of these books, you can end up with hundreds or thousands of books you can’t sell but are obligated to buy.
Thus, if there is such a clause, do the math to determine exactly how much the publisher expects you to buy at what price. Then, you can deduct that from any future royalty payments to determine the balance payable to you, or more commonly, the balance which you now owe to the publisher.
For example, a typical pay-to-play clause may say something like: “The author agrees to commit to purchase at least 2500 books at the wholesale price of 50% off.” The specific number may vary, but generally ranges from 1000 to 10,000 books. In some cases, you may be able to get the clause eliminated, as I was with one publisher that initially wanted a commitment of 1000 books.
In other cases, you may be able to get it reduced, such as when one publisher reduced the number required from 3000 to 2000 books but wouldn’t go any lower, while offering me an advance of $5000. Even so, since the books were priced at $29.95 retail and I could buy them at 50%, that’s $15 a book or $30,000 for 2000 books, or $25,000 after deducting the $5000 royalty. So no deal.
In effect, such an arrangement is akin to a self-published book, where a traditional publisher is trading on its name to get writers to agree to this expensive deal, where you could well end up with thousands of books in your basement or garage. But if you decide to self-publish, there are much less expensive paths to that end – from free to about $1000-1500 for design and set up; and you buy as many books as you want. There is no large upfront commitment. Thus, if you can’t get this clause eliminated or get the number of books reduced to the number you might realistically sell or give away for promotions, consider this clause a deal-breaker and walk away.
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If the book does well, your publisher may want revisions or updates to keep the book current. Also, the publisher may hope for future books from you. On the other hand, if the work doesn’t do well or the publisher has financial difficulties and declares bankruptcy, you may get your rights back under certain circumstances. These contract provisions deal with these topics, and this is where you should ask for changes if you are dissatisfied with these clauses, and publishers may be quite open to these changes if requested.
An Option for Future Books
Sometimes publishers will include an option clause, which provides for the right of refusal on your next book or next two books at the same terms as your present contract, and commonly the publisher will get 60 to 90 days to exercise this option. This clause can be fine if you really like dealing with this publisher, like your current agreement, and don’t want to go anywhere else. But however you feel about your publisher and current arrangements, this option can be a trap, so ideally, get this clause removed, and you can always continue to work with this publisher on future books by mutual agreement. For some writers who write many books on different topics, such as myself, this option would be a deal breaker, because it can conflict with making deals with other publishers.
It is reasonable that a future book you write not conflict with your book which the publisher is currently publishing, but this situation is already covered under the non-compete clause, so there is no need to tie up your next books under this agreement, and I have found that most publishers will willingly remove it. After all, they want a harmonious future arrangement, where you mutually agree for them to publish your next book. Also, it is possible for a dissatisfied writer to defeat such a clause by submitting one or two terrible proposals or book manuscript that they have no intention of writing, whereupon the non-compete clause will expire anyway.
Alternatively, if the publisher does want a future books option clause, it is easy to make this restrictive, as in making the non-compete clause specific to the type of book you are already publishing with that publisher. For example, if you have a self-help book on overcoming alcohol abuse and addictions, you could specify that the future option will only apply to books dealing with alcohol and addiction problems.
However, the simplest arrangement is to remove the clause, which a publisher might do by taking it out of the contract and renumbering the following clauses, or by writing the number and name of this clause (i.e.: Option Clause) and stating that it has been “Removed by agreement.”
Revised or Updated Editions
This clause describes what you can do if the publisher wants an update or rewrite after the publication of the initial edition, say after two or three years. Typically, this is an offer for you to update, edit, or revise the work for an additional payment (such as $500 or $1000), which will be considered an additional advance against future royalties. However, you can choose not to do any further work on the book, and in this case the publisher has to right to hire someone else to make the change or can arrange for someone to do the work in house. In either case, the publisher can charge the reasonable cost or value of that work against future royalties. Presumably, that should be the same amount as the publisher is offering you, so you might get that amoun spelled out in the agreement, so the publisher can’t pay someone else much more than you would be paid and charge that against your future royalties.
In some cases, the publisher may bring in another author to share the author’s billing with you on a future edition, in which case, that person will not only get an up-front payment but will receive a share of the royalties on future publications of the book. The publisher might even revise the credited authors on the cover to reflect this, such as happened with one of my books on a legal topic: collecting on a judgment. While I wrote the first book and the publisher revised the book in-house for the second edition without any charge to me, for the third edition, the publisher brought in a lawyer to share the credits and royalties with me, resulting in 25% of the payments on the third edition going to him and 75% to me. Eventually, after another round of revisions, the publisher gave me a payment to buy me out from future editions completely, since I was no longer contributing anything to these revisions, nor did I want to.
In any case, if you want to remain the sole author and retain control of future changes, by all means agree to do the revisions or updates. Possible, though, you might be able to negotiate a higher advance than the publisher originally offers – or make the amount contingent on the number of pages that require revisions or the number of words you will be changing or adding to the text.
Getting Back Your Rights
This reversion of rights clause spells out when your book is deemed out of print, whereupon you can request back the rights. This return of rights clause can be written in a number of ways, and you should make sure it realistically reflects the situation where your book is not selling a significant number of copies in any format after a certain time period. It is important to seek some floor for this determination, because otherwise, your book could conceivably never be considered out of print, because of the potential for e-book sales.
Many clauses about reverting rights do not include a number, but you should seek to add one indicating the minimum number of sales each year after a certain period of time, commonly two to three years after the book has been published. For example, you might ask that the book be deemed out-of-print where it has sold less than 100 copies a year – or even less than 25 or 50 copies. Just put in some small number, so you have some basis for claiming the book is now out-of-print to enable you to request a reversion of rights.
Normally, this reversion clause will require you to send a written request to the publisher asking for the rights back if the publisher fails to reprint, repackage, or publish a new edition; license the edition to another publisher; or advise you of its plan to do so. Under any of these circumstances, you can send the publisher a termination letter, asking that the rights now return to you. After receiving this letter, the publisher will typically have an additional time period, such as two weeks to consider your request and decide whether to republish the original book or an update or not. If not, the rights revert to you.
Additionally, this clause will often allow a publisher to continue to resell any books it has already printed for a certain period of time after termination (such as one or two years), with the understanding that it will pay any royalties still due under the original agreement. In some cases, even if it is not in the contract, if you get a series of statements showing a lack of a sales for a year or so, you can simply write to the publisher to request the return of your rights, and many publishers will agree, since they don’t expect the sales to improve and are already planning to retire the book.
Aside from getting a floor to define when a book can be considered out of print after a certain number of years of publication, the rest of the reversion clause is usually fine. Commonly, a publisher will send you a formal letter advising you that the rights are returned to you, with the provision that any agreements the publisher has already entered into with third parties (such as translation rights to a publisher in another country) will remain in force, along with the right to continue to sell any remaining copies for a specified period after termination. Once you get the publisher’s agreement to revert the rights to you, if it’s not already in a formal letter, such as if the publisher sends you an email, ask the publisher for this letter, since you can then use it to show other publishers who may be interested in republishing your book now that you have the full rights to it again.
While this isn’t necessary to include in the contract, sometimes a publisher will decide to remainder a book and get rid of all its stock, and will normally give the author the first option to buy any number of the remaining books. This is another condition where the book is considered out of print, so once the publisher announces this this sale to sell off its stock, whether to you or another party, you will get the rights back. In this case, you don’t need to send a request for the rights back or a termination letter, because the remainder sale means the book is now out of print. Just keep the letter to show other publishers, that the book is out of print and you have the rights back.
Finally, if the publisher goes bankrupt or goes out of business, this clause will state that you either get back the rights or are offered the right to buy back the rights and any remaining copies, whether bound or unbound, at their fair market value, as determined by an agreement between the publisher and author. Should you decide not to buy the books back, the publisher can sell its stock for the best price it can without having to provide you with an accounting or any payment. Preferably, make it clear in the contract that you get back the rights automatically in the event of a bankruptcy or if the publisher ceases operations rather than having to buy back your rights or set a value on the cost of these books, which should at most be a small percentage of the regular retail price.
Assignment of Rights and Beneficiaries
Just as the contract will state what might happen if the publisher goes out of business or wants to assign its rights to another entity, so it will provide for what happens in the event of your own death or if you want to assign your rights to someone else. Based on this clause, you have the right to assign any money due under the agreement, while the publisher can assign its rights and obligations to another party.
For example, if you owe someone money or want to give a friend, relative, or spouse a gift, you could assign your right in the manuscript to them. By the same token, a publisher could turn over its rights in your book to another publisher, such as in the event of an acquisition or sale of the business. Additionally, in the event of the author’s death, the publisher can agree to pay any future royalties to a beneficiary or the executor of the author’s estate, as long as this party sends the publisher the appropriate written notice and documentation to receive these payments.
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Other contract clauses deal with how you get paid, the number of author’s copies you will receive, and how you can purchase copies. There are a few changes you might request here in the number of copies you receive and purchase arrangements, but generally, the payment arrangements are based on the publisher’s accounting system, so there is not much if anything you can negotiate.
Besides the specified advance payments described in the section on royalties and advances, the publisher will pay future payments after any advances are deducted based on the publisher’s accounting and payment cycle. Often this is a biannual system, where you get a statement and accounting every six months, though some publishers only pay annually, while some pay on a quarterly basis, and occasionally some pay every month, though these more frequent payments are more common with ebook-only publishers, who have online sales and make deposits directly into your bank.
If you are dealing with the publisher directly, the payments will be paid directly to you or split between you and any co-authors, with the payments made to the lead author or split between two or more authors, based on how you are splitting the royalties based on different contributions to the book. If you have an agent, commonly the payment will go directly to the agent, who will pay you the amount due less the agent’s commission within a certain period of time, such as within 10, 15, or 30 days of receipt of these funds. In the rare case where there are separate agents for different authors, the agents will work out which agents gets what.
Commonly, there is a delay of 45 days to a few months between the time the accounting period ends and when a check will be issued to you. For example, when statements are computed twice a year, the typical six month period runs from January 1 to June 30 and from July 1 to December 31. If a publisher pays within 45 days, your check for the January to June period will go out on August 15; for July to December 31 on February 15. In some cases, the delay will be much longer, such as with one of my publishers who sends out a check on or before June 15 for the July to December period; on or before December 15 for the January to June period.
The accounting you receive will include the net sales for that period, as well as the sale of any rights, along with the royalty rate for each type of sales, the reasonable reserve deducted for the returns, and the amount due. Commonly, if the amount due falls below a certain level – typically under $25 or $50 — that amount will be held over for the next pay period. Should you get an overpayment as a result of copies sold but subsequently returned, this overpayment may be deducted from this work or other works that the publisher publishers. In the event you don’t get your statements and checks in a timely manner, it is your obligation to write to the publisher within a certain period of time, say 12 months, to indicate that you didn’t receive the statement, that it was incorrect, or that you didn’t get the royalty payment due. If you don’t notify the publisher within this period, you waive any right to receive the corrected statement or any royalties not received for this period.
If there is a long delay between the end of the accounting period and the payment due, you might ask for a shorter time period, though the publisher may not be able to make any changes due to the way their accounting and accounts payable system is set up. But often, this future payments clause may prove to be moot, because many books do not earn out more than their advance, so there will not be any payments due for a long long time, if ever.
If you do have more than one book with a publisher, an important agreement to seek is that the sales of the books will not be combined in figuring royalties. In other words, if one book loses money, while another book does well and earns more than it’s advance, you don’t want the losses from one book to be applied against the book that is doing well. In my experience, publishers have agreed to this, though not all will do so.
This section of the contract will spell out the number of free copies that will be sent to you. Commonly, you will receive five copies, though some publishers only send two, while others may provide ten. Occasionally publishers may even send you 20 to 25 copies if you show how you plan to use those books for promotional purposes, though you have no obligation on what you do with these books, so if the planned promotions don’t work out, those are your books to keep. In some cases, authors sell their free books, before purchasing more books.
This section will also indicate how you can buy additional books at a discount, typically 40%-50% off retail, sometimes more for larger quantities, such as 55% or 60% off if you buy a carton of books or 100 books or more. If you purchase even larger quantities, you may be able to negotiate a better discount of 65-70%. Generally, you have to pay for the shipping and handling, and pay for these purchases in advance. Normally, these books are sold to you at the author’s discount and no royalty is paid. However, sometimes you can negotiate an arrangement where you are paid a royalty on any of your purchase. Another possibility which doesn’t need to be in the contract, though sometimes it can be added if you have a retail seller’s license for selling anything, is that you can buy your books at the regular retailer discount with the royalty paid on these. In this case, you buy through your company with the publisher’s sales department and get a discount based on the number of books you buy. If you are given this option, figure out which arrangement will give you more money – buying at an author’s discount with no royalty or a royalty, or buying as a retailer.
In any case, whatever your arrangement for author’s copies, the publisher wants to encourage you to sell copies at the work through a number of methods, which include at public speaking engagements, on your website, by direct mail, through newsletters, or as a premium to local retailers. However, you are normally restricted from selling to bookstores, which the publisher reserves for its own sales.
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Probably the one section of the contract that involves the most negotiation is the royalty rate, size of the advance, and payment arrangements.
If there will be a hardcover version of your book, a common arrangement is 10 to 15% of the retail or the net price (which is about 50-60% of the retail price). Often the royalty is figured on a sliding scale, such as 10% for the first 5000 copies sold, 12% on the next 5000, and 15% on sales of more than 10,000 copies. The particular numbers can vary, but commonly, there is no hardcover book, since most books are now published as paperbacks or ebooks, and some companies only want ebook rights, with the typical royalty rates and advances outlined below.
The royalty rate can vary somewhat depending on how much the publishers wants your book, and the advance can vary even more, based on the number of copies the publisher thinks your book will sell at what amount in the first year, and then you get offered a percentage of that. This is where your negotiation skills are best exercised and where working with a good agent can sometimes get you more – even much more – than you can get yourself, making the 15% or sometimes 20% you pay the agent well worth it. But assuming you are dealing directly with the publisher, here are some things to consider.
The Royalty Rate
A common arrangement is to be paid by the publisher based on the net receipts, which is the gross income the publisher gets from the sales of the book less any returns and a reasonable reserve for returns – typically about 20%. Usually, you can expect 7-10% of the net receipts, with an increase after the first 5000 copies to 10-12%. But if copies are sold at a discount of 50% or more, outside the US, or a special retail offer, the royalty commonly drops to 5% of net. In the event books are sold to book clubs or other organizations, corporations, or the U.S. government , or are sold for use as a premium, the royalty might be even less, such as 4% of net. And remaindered sales, where the publisher decides to drop the book and is selling off its current stock, the royalty might be similarly reduced, say to 4% or less, and if the books are remaindered at cost, you may get nothing other than a first option offer to buy any books at this heavily discounted cost.
In the case of ebooks or any sales in electronic form, the royalty is commonly 25% of the publisher’s net receipts, though some publishers will pay as much as 40%. It doesn’t hurt to ask about this if the royalty amount stated in the agreement is less than 40%.
Sometimes a publisher may also add a clause about paying a reduced royalty when there is a low printing in a given year, such as 1500 copies or less. Then, the royalty may shrink to 5%.
You might find a little give in the different royalty rates if you ask. If not, it is generally best to accept those terms if you want to work with that publisher, since commonly, books don’t earn out their advance. So the most important number is the advance you will get and how you will receive it. A common arrangement is to get half of the advance up front and the second half on acceptance or publication. If possible, try to get this last advance payment on acceptance, which will usually occur a month or two after you submit the final manuscript, whereas a final payment on publication generally won’t come for about a year or more, which is the common gap between getting the contract and publishing the book.
Royalty Splits on Subsidiary Rights
Subsidiary rights involve deals with third parties, such as foreign language publishers, film and TV producers, and product merchandisers. This is where you can often negotiate the rights you are giving to the publisher and those you are retaining, and the percentage split between you and the publisher. A standard arrangement is 50-50, unless you work out a different split.
The particular subrights to negotiate are those you are still splitting with the publisher, based on your agreement in the grant of rights section. If you have retained a particular right, it shouldn’t be listed in this section which outlines the author’s and publisher’s percentage, since the publisher no longer has any interest in this right. If the right which you own exclusively is listed, request it be deleted, since the publisher doesn’t have that particular subright. For example, in some cases, authors retain the foreign translation rights, dramatization, film and TV rights, and the commercial and/or merchandising rights, or if it’s an ebook only deal, you retain the paperback and hardback rights.
While the usual split is 50-50, you can sometimes request a different split in your favor, such as 75-25 or 60-40, if you initiate the licensing of the book in another language or make the arrangements for a film, TV show, or theatrical piece based on our book. Likewise, if you can set up deals with gift, stationery, toy, or other manufacturers to produce a product based on your book, you might get 75-50. However, before asking for a change in the usual split,, consider if you are realistically going to do any outreach to set up these deals. If not, don’t ask for this exception. If you do plan to do any outreach, work out with the publisher how that will work. One good arrangement might be for you to each have a non-exclusive right to initiate contact with third parties, but then any agreement must be subject to the approval of the publisher.
The Advance
The advance is what the publisher agrees to pay you as an advance against future royalties and other earnings. Most commonly you can expect half up front, usually within 30 to 45 days of signing the contract by both the author and publisher. Then, you get the balance on acceptance or publication of the manuscript, with that payment to come within 30 to 45 days of that event. Ideally, seek to get that second or last half of the advance on acceptance rather than publication, since you can expect an acceptance within a month or two after you turn in the manuscript or after the due date if you turn your manuscript in early, whereas your book may not be published for a year or even more after that. If possible, ask for the payment within 30 days rather than 45, but this may be a schedule that can’t be changed, due to the publisher’s internal payment system.
In some cases, where a book is already completed or close to completion, you may be able to get the whole advance in a single payment on signing, especially if it is a small amount from a small publisher. But usually, there are the two payments, or sometimes even three or four paid out at different times as the manuscript is completed, such as when a manuscript involves extensive research over a period of time.
The arrangements about the index and who is to pay for it will commonly be included here, and often state that any payment for the index if created by the publisher will be deducted from the final advance or from future royalties to the author. If possible, seek to have any payment applied to future royalties rather than to the advance on the royalty, if you can’t exclude this payment entirely.
This section will also indicate that the author will not receive any further payments until the entire advanced has been earned out through royalties, sales of rights, or other monies due to the author. Moreover it will generally indicate that no royalties will be paid on complimentary copies given out by the publisher or on copies which are lost, damaged, or sold for less than the manufacturing cost. These are common publishing industry practices, so there is nothing to negotiate here.
What is most subject to negotiation – and what is most important to negotiate if you can – is the SIZE of the advance, since if the book doesn’t earn out its advance, that’s all the money you will see. If this is a small publisher, you will usually get a small advance, or sometimes even no advance, because this is all the publisher can afford. But if the company sincerely wants to publish your book, you may ultimately earn more on the back end than a big publisher might pay up-front, if the company’s efforts result in big sales. So don’t turn down a small or no advance publisher, especially if that’s your only option. But try to negotiate so you at least get a small amount – say $1000 to $3000, though some publishers may be firm in saying that they can only give you the smaller or no amount they are offering. Then, it’s up to you to decide whether the possibility of future earnings and getting your book published by a mainstream publisher is worth agreeing to publish with them versus self-publishing your book.
In any case, be realistic about the advance you are likely to get, based on the type of book, the target market, the likely sales to that market, your track record, and your platform. Also, be aware that the royalty advances for the “midlist” book – a book by an author who isn’t a well-known celebrity or high-profile expert on something – have gone down in the last five years, because of the increasingly celebrity-driven marketplace and the millions of authors who are writing for little or no money and self-publishing their own books. Plus royalty rates to most authors have gone down because of the growth of ebooks, which are usually less profitable for publishers. Generally, you can expect an advance of about $5000-15,000 for a non-fiction book in most categories, such as self-help, popular business, and memoir – about half what these advances used to be, though some authors will get more. Try to get more money up-front if you can, and make the case for this based on how you can support and promote the book, and how much awareness you have already created for yourself through past PR, speaking engagements, workshops, and the like.
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Another key contract provision deals with editorial and production arrangements. This section refers to the requirement that you will review any gallery proofs within the time limit specified (generally 5 to 10 days after you receive them), and if you make any changes other than printer’s errors or in some agreements more changes than 10%, you will be billed against your royalties or any payment due on publication.
This clause may also require you to provide an index if the publisher feels one is necessary and to provide it yourself or to let the publisher do this at its expense and charge that against the author’s royalties or payments due on publication.
Also, this section gives the publisher the sole and exclusive right to decide on all aspects of the production and publishing process, including the choice of paper, jacket, cover design, and whether any advertising will be in the book. It further permits the publisher to send out complimentary copies to the recipients of its choice – generally members of the press, and permits the publisher to set the retail price in hardcover, paperback, and any other editions.
Generally, you can’t make changes in the proofing schedule, unless you have a good reason for not being able to meet the planned schedule (such as being out of the country during this time). Also, you normally can’t alter the agreement about making only a limited number of changes or you get charged for them, since presumably, you should make any changes in the copy as you go along, usually after you get input from the developmental or copy editor working with you on creating the final manuscript.
However, you might be able to change the requirements for an index or paying the bill for it, which typically costs about $450-500 for an index. One way is change this is to request that there be no index if the publisher initially wants one, and some publishers will agree, although others will indicate that indexes are always included in this line of books, and you have to accept this, though you can negotiate who pays for this.
In some cases, the publisher will agree to pick up the cost; in other cases, the publisher may agree to charge the index costs against future royalties, rather than charging the unpaid balance against your advance. Another way to cut down the price is to do the index yourself according to the publisher’s guidelines, figuring on about 3-5 hours to do this. Or you might reduce the cost by selecting the words for the index and letting the indexer determine the page numbers, using the software that indexers generally use to create the index. If you do this, figure it will take you about 1-2 hours to go through the manuscript for words, and the cost of the index will be about $150.
As for production arrangements, generally you need to let the publisher make the final decisions. It is rare for authors to have final design or cover approval, which is like allowing a director to have final cut approval. So normally, you can’t change this clause, although publishers will normally run a suggested title or cover by you for your input. This review by you doesn’t have to be included in the contract, although you might ask if the contract can include a statement that the editor or publisher will consult with the author on the title and cover design, while the final decision will be up to the publisher.
Likewise, it’s normally up to the publisher to set the price, based on the cost of the book, taking into consideration the number of pages, size of the book, initial print run, and the like. Publishers usually have the right to set the design and pricing for the electronic edition, too.
In the event you don’t meet the publisher’s production schedule or provide an acceptable manuscript, this contingency is covered in the “Delivery of Manuscript” provisions, which deals how you have to repay the publisher any advance. Of course, if there is no advance, there is nothing to repay, so if you find the demands of the publisher onerous, this could be a good reason to seek another publisher. If so, don’t provide the first publisher with an acceptable manuscript; then you can walk away from what you now consider a bad deal.
If a publisher is unable to publish your book within the time agreed upon or decides not to publish for any reason, other than some failing by you, as described in the delivery section, you get the rights back and get to keep any advance, though if you subsequently sell the book to another publisher, you may be obligated to return it. However, if there are changes in the manuscript and it is published by another publisher some months or a year or two later or even under another title, this can be hard to police.
If a publisher has paid you no advance, the publisher can generally later not publish with no penalty, which is why it is a good idea to get at least some advance, although some small publishers don’t pay them. Still, many do responsibly seek to publish your book, and they put the time and effort into doing so, as well as pay some editorial staff to edit it and set it up for publication. Thus, take into consideration the responsiveness of the publisher if you agree to a no advance contract.
After a few months, if they do not appear to be moving ahead in publishing your book, follow up to see what is happening, and if you are not satisfied, feel free to walk away. After all, you haven’t gotten an advance, and the publisher appears to have breached your agreement, so you can feel free to find another publisher, and if necessary, you can even change the title for an even cleaner break. In any case, it is likely that this first publisher can’t do anything to stop you from walking away from what appears to be a bad deal due to their lack of performance.
In sum, generally, you have to agree to the publisher’s editorial and production arrangements, though you might be able to get out of having an index, paying for it, or arranging for any payment to be taken out of future royalties, rather than taking them out of any payment to be made on the acceptance or publication of the final manuscript.
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Other common contract clauses deal with warranties, indemnity, and the grant of rights, many of which are basic boilerplate. It is best to just leave most of them as is, rather than trying to nitpick small points, which could lead a publisher to think of you as a difficult writer, which would kill the deal. Just ask for changes in some of the more important terms, and you are likely to at least get some of them, or all of them in many cases. Here are details about dealing with warranties, indemnities, and the grant of rights.
–Warranties and Indemnity. This is a clause where you warrant that you (and any co-writers) are the sole author, originator, or owner of all of the copyrightable material in the work or that you have gotten the written permission for any material from someone else. You also agree that, if requested, you will show this written permission statement or letter to the publisher. Or alternatively, you agree that the publisher, if it wishes, can secure these rights at its own expense and charge those expenses against any sums due to you, including unpaid advances, or the publisher may require you to pay these fees, or it can reject the manuscript for a lack of permissions.
However, often there is no need for any permissions if you are relating your own experiences or are citing sources, such as articles, books, or websites, because of the fair use doctrine, whereby you can generally cite up to about 250 words from any source without needing to get permission.
You also warrant that you have the full power to enter into the agreement and there is nothing in the manuscript that is libelous or an invasion of privacy, and you further agree that any instruction or advice will not result in an injury to anyone. Or as necessary, you agree to include the appropriate warnings and safety precautions.
In addition, you agree to indemnify and hold the publisher harmless from any legal claims, suits, damages and related legal costs due to a breach of these warranties. Also, you agree that the publisher can remove or clarify any passages that its legal counsel deems actionable. Moreover, the publisher can extend your warranties to third parties, including the licensees of subsidiary rights, and these warranties and indemnities will survive even if the agreement is terminated. In some cases, this section indicates that the publisher will similarly indemnify you from any claims.
In general, consider this clause as boilerplate, and any legal action based on such causes outlined in this section is unlikely in the case of most books. So I generally accept this clause as is.
– Grant of Rights. In this section, you grant the publisher the right to produce, publish, license and sell the work, or any part of it, in various forms. Typically, this grant will include electronic rights, as well as audio rights, dramatization rights, film rights, TV rights, and commercial and merchandizing rights, usually on a sole and exclusive basis. In some contracts, these different rights are listed separately. This is where you might want to be more specific in what rights you are granting, based on the size and reach of the publisher, and what you can realistically do yourself in terms of marketing these other rights to potential buyers, such as film and TV producers.
In the royalties section of the contract, you might work out different percentage arrangements for the different rights, based on whether you make the connections and negotiations or the publisher does, though the basic split is 50-50 for the sale of subrights.
For example, if you are working with a small publisher and hope to reach out to the foreign markets yourself – or if you have a foreign agent you work with, you might only assign the publisher the English language rights, and you can even specify that these rights are only for certain countries, such as the UK, Canada, Australia, and New Zealand. Commonly, you need to give the publisher the electronic and print rights (although there are some companies that only want the e-book rights these days), but you can often reserve the audio rights, dramatization rights, film rights, TV rights, and commercial and merchandizing rights. However, in deciding what rights to seek for yourself, consider whether you are in a position to contact people in the film, TV, or other industries yourself.
If not, it may be better to leave these rights with the publisher. And often, a film or TV project based on the material in your book may turn out to be very different, so unless the book has sold well and you want to use the title, it may not be necessary to have the subrights to produce this new project.
This grant of rights section will also normally include a non-compete clause, or sometimes that clause is separated out as a separate section. However it is stated, much like in the non-compete clause, you agree not to create for anyone other than the publisher a work that is similar, covers essentially the same subject matter, or is likely to compete for sales with this work. Asking for these restrictions is certainly a reasonable request, if the publisher is investing in publishing and promoting your book. However, it is best to specify more clearly exactly what it means to say something is substantially similar, covers essentially the same subject matter or is likely to compete with the sales of this work.
For example, spell out what the book is about, so you limit the claims of what’s similar, the same subject matter, or what’s directly competitive. To illustrate, if your book is about caring for dogs, state this, so you are free to write books about other pets or animals generally or even write a humor book with a cartoon dog character. Or say you are writing a serious book about the criminal justice or political system. You might clarify what your content covers, so you might be free to do a true crime book or memoir of a criminal or politician. In other words, consider what you want to write about in the future, so you can specify in this clause the particular nature of your book, so any restrictions only applies to that.
In some cases, this section may also specify that you have to give the publisher a first option on any related books, or a first option generally. In this case, where you are writing about a related topic, you might agree to submit the book, with the understanding that within 30 days, the publisher will either publish on the same terms as the first book, but then you have the right to pitch the book elsewhere. Another variation on this first option clause is that the publisher has the right to match any bona fide offer which you get from another publisher.
It seems reasonable to include such an option when the book is related or a follow-up book to the one the publisher is publishing. But ideally, request that any first option clause be deleted from the contract, because it can be a hassle to have to submit books to the publisher on other subjects, particularly if these are books that wouldn’t be of interest to the publisher. Moreover, if your book is being published by a small or medium sized publisher, you want to be able to find a larger publisher for subsequent books.
In any case, publishers will normally agree to delete any first option clause, and if not, this could be a deal breaker. For example, I publish books on a wide variety of topics, and I would not want to limit myself with a right of first refusal or option clause, and as long as the book is not directly competitive with the book they are publishing, I have found that publishers readily agree to delete the clause.
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If you have an agent, he or she will normally handle the contract arrangements in consultation with you and make recommendations on how to present your material and the best publishers to contact. Agents are typically familiar with the usual contract provisions and what they can ask for and negotiate to get you the best deal.
If you don’t have an agent and have a good offer from a big publisher – say a $10,000 advance or more, it can be worth working with a lawyer who has handled book contracts with publishers, though don’t work with a lawyer not familiar with the publishing industry, since they can make demands that are more excessive than usual and kill a deal. You can either hire the lawyer to negotiate for you if the offer is high enough, or obtain the lawyer’s advice on whether this is a good contract and what you can ask for if you negotiate the deal yourself.
But what if, like many authors, you don’t have an agent and have an offer from a publisher — usually a small or medium sized publisher – who is offering a small advance – commonly from about $1000-3000, or even no advance. What should you do, since bringing in a lawyer will commonly cost about $500-1500, and this will be a substantial portion of the advance, or even more than it? Following are some things to consider, though this is not legal advice. If in doubt, consult with a law book or get second opinions from books on book contracts or other writers who have signed books.
– The contract should include a statement that the copyright will be in the author’s name. Usually, the publisher will agree to register the copyright in your name, but if not, you can easily do this with the copyright office — $35 for an individual copyright; $55 if there are more than two parties on the copyrighted work. In some cases, a contract may state that the publisher will obtain the copyright in the publisher’s name. If so, seek to have this changed to registering the copyright in the author’s name, since the registration in your name will make it easier, if the work goes out of print or you get back the rights, to find another publisher for the work or publish it yourself, because you still own the copyright – you just licensed its use to the publisher.
– Specify the approximate length of the manuscript and the delivery date. These arrangements will commonly be discussed before the publisher draws up a contract. Be sure the manuscript length is a reasonable goal for your manuscript. While there is some flexibility from the length specified in the contract, give or take about 10,000 words, publishers will ask you to edit down a manuscript that is too long – and usually you need to do it rather than the publisher’s copy editor, unless it is over the expected word count by a small amount and the cuts are obvious, such as cutting down long quotes. If your manuscript is too short, the publisher is likely to ask you to add more information, or could possibly reject the manuscript entirely, whereupon you may have to pay back any advance.
You also need a realistic delivery date based on the length of the manuscript, how much research you need to do, and how long it will take you to write any chapters not completed in addition to those in the proposal to sell the book. While the delivery date can sometimes be extended, check in advance to determine how flexible this date is, because if you don’t deliver the manuscript by the agreed upon date, your publisher may be delayed in meeting the planned publication date, which could reduce PR efforts. The publisher could also cancel the contract for the lack of a timely delivery, obligating you to return any advance. Commonly, these clauses also specify the time the publisher has to publish the accepted work – usually 12 to 18 months, and if not, you can request back the rights.
– Submitting the manuscript. Normally, a contract will specify how you should submit the manuscript and any additional components, such as illustrations, photos, or table of contents, and an index, by the specified delivery date. At one time, publishers expected hard copies, but now, many publishers are fine with an electronic copy, though some may ask for a hard copy, too.
Commonly, the author is responsible for preparing the index, though some publishers will do this and deduct the cost from the last half of the advance or future royalties. Indexes aren’t always necessary, but if they are, figure on them costing about $500, with index costs from professional indexers of about $2.50-$3.50 a page (based on the page count in the published book). One way to cut down the cost is if you go through the manuscript and pick out the key words and provide a list of them to the indexer, figuring on about 300-500 words on your list, which can bring down your costs to about $150.
– Accepting and Publishing the Manuscript. This clause provides the publisher a way out of the agreement if the publisher finds the manuscript unacceptable. Commonly, the publisher will advise the author what to do to fix it, but if the author can’t or doesn’t want to do so, the publisher can reject the manuscript. Generally, the author can keep any advance already paid, since the assumption is that the author has been working in good faith on writing the manuscript, though some publishers will ask for the advance back. Alternatively, some publishers will only ask that the author repay them if he or she finds another publisher. If the publisher doesn’t publish the manuscript within a certain time, rights in the manuscript revert to the author, along with any discs or copies of the manuscript given to the publisher. In this case, the author does not have to return any advance.
While these clauses are fairly standard in laying out the length of the manuscript the author is expected to deliver, when, and what happens if the author doesn’t deliver or the publisher doesn’t publish within the time specified, there is some room for negotiation. In particular, you might ask to only deliver the manuscript by email attachment or on a disc, which will cut down your time and costs for the delivery. You might also ask the publisher to cover the costs of any index if required or at least not charge you until future payments are due rather than taking the cost out of any remaining payments on the advance.
Another strategy is to state that the index is unnecessary, so there are no costs for either the author or publisher. Still another point you might negotiate is the length of time for the publisher to publish the work, such as requiring publication within 12 months rather than 18, or even 6 months, if the publisher has a short turn-around time.
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While you may have certain prices and policies that are the usual way you work with clients, at times clients will ask you to make certain changes or exceptions, and it can be hard to decide whether or not to agree to these changes. Following are some common scenarios and how to deal with them. You have to judge whether you want to accept a proposed arrangement, or come back with an alternative proposal, and then any agreement can be like a negotiation.
In general, it is best not to change your usual policies, since you have been following them with most or all of your other clients and you have found these policies work. Still, there are times when it is reasonable to accommodate a client’s request.
– A long-time client – or a new client – claims financial difficulties. He or she claims to have run into financial problems or has had upheavals in life, so he or she hopes to pay less or pay on a deferred basis. As a first step, decide if you trust this person’s claim. If it’s a long-time client, this is probably the case, but with a new client, the claim may or may not be. As some writer associates have found, sometimes people will plead poverty or hard times to get you to reduce your prices, while they may have no difficulties paying for other products and services. If you don’t trust the person’s claims, explain that these are your prices, and you have your own financial commitments and make your living doing this, so you can’t reduce your prices, but you will be glad to help them when they are ready.
However, assuming you trust that the person is having difficulties, it makes sense to work out an arrangement you both feel comfortable with. One simple approach is to offer a discount to help out – such as less 20-40%, which can help the client and leave him or her favorably impressed to want to work with you again, or perhaps give a testimonial for your product or service.
Another approach is to get at least a percentage down – say 10-20%, defer the rest, and work out a payment plan, such as 10-20% of the total each month until paid in full. In this case, get a signed agreement form, so it is clear the person still owes you the money and how much.
Still another strategy is to consider barter, if the client has services or products you can use. In this case, arrange the barter based on the value of the other person’s products or services if you were to buy them, and value your own services in the same way.
– A prospective client says that he/she thinks your prices are too high or that others have said this. Here I think the best strategy is to stress the value of what you are offering and point out the level of experience you have had that makes your service valuable. You can also point to testimonials you have gotten and indicate that you have had these prices and arrangements for many years. This strategy can be especially effective if you are offering a unique product or service which is hard to duplicate. This approach may not always work if the prospect is determined to pay a lower price or not get your product or service, but it is often better to stick to your guns rather than undercut your own income, since you have other clients who are paying the full price, so you don’t need to work with clients who don’t see the value in your work.
This scenario is like someone going to a store and asking to pay less for a Rolex watch because they can get other watches for less money. If you are in the business of selling Rolex watches, you don’t want clients who think that the Rolex costs too much money; you don’t want to undermine your value proposition to sell for less. Likewise, as a writer, once you determine how to value and price what you are writing, look for clients who will value what you do.
– A prospective client offers to write a testimonial in return for a special deal from you. Unless you are starting out as a writer and need some testimonials and recommendations, this is generally not a good arrangement. It is a variation on the prospective client claiming your prices are too high, but now the prospect is offering you a carrot – a testimonial – in return for paying less – or even trying to get you to do something for free. In this case, your strategy would be much like the way to respond in the “prices are too high” claim. Stress the value of your services or product, and at the same time point out that you don’t need any more testimonials; you already have them from people who have previously bought your service or product. If the strategy works, great. You convinced the client to pay full price for your services. If not, you have turned down a client you don’t need who doesn’t value what you are offering.
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One of the great things about being a freelancer, is that you can freely choose what projects you work on, what clients you agree to work for, and what your terms and prices will be. You can also freely adjust your writing and payment arrangements to changes in the marketplace and your own ebbs and flows of business.
But at times this freedom can create some problems when prospective clients ask you to make changes in how you usually work with clients or in your usual prices for the different services you provide.
Generally, set your terms based on the market for what you are doing, taking into consideration the going range of prices and your level of experience. If you are new or relatively new to freelance writing, to be more competitive, set your price below the common standard, say 50-90% what others charge. Then, as you get more experience and have testimonials from clients, you can gradually raise your rates. If you have more experience than most other writers in your field, you generally can charge more than the going rate, and you might test out different rates to figure out the best rate to charge. If you repeatedly lose out on jobs because your charges are too much, consider lowering them by about 10-20% or offer a special discount to new clients or during a certain time period when things are slow.
This occasional special is a time-tested strategy that is often used by retail or online marketers pitching a new program. They tell prospective clients: If you act now or within a few hours or days of getting the offer, you can save money. Another variation on this promotional approach is to provide a series of offers with varying terms, such as setting the lowest price for an advance sale or early bird rate, a slightly higher rate for the next time period, an even higher rate after that, and finally a late bird or at the door rate. Some common graduated steps are from free to $5 to $10 to $15 to $20 for events, such as if you are putting on a workshop. Or you might offer an hourly rate of $75, $85, $100, or $125, depending on how much advance notice clients give you to work on their project.
However, be careful in how often you offer a discount off your regular price, since offering too many discounts will undermine your current regular price, and it will seem like the discounted price is your new one. But assuming you are careful in offering a reduced price, a good time to offer this is when things are slow or you are new to an area or organization. For example, if the economy slows down so there are fewer customers or if this is a slow season for your writing business, which often occurs in August and November to December, a reduction in price might help to bring in some clients. Even if they aren’t ready to follow-through with the material for you to work on at the time, give them the reduction if they pay now for a future service.
Another consideration is whether to charge an front retainer, use a pay-as-you-go system with a credit card or PayPal account, or bill after the work is done. Ideally, when you start a project, especially with a new client, get a percentage down. If it’s a small amount and you are writing something as a work for hire, which is common for writing articles, blogs, website copy, marketing materials, and like, get a down-payment upfront or get the whole thing in advance. This way you know the prospective client is serious, and you won’t get stiffed for a small amount that is almost impossible to collect if the client doesn’t pay. Then, it’s ideal to contain with an advance payment you work against or a pay-as-you-go arrangement, where you have a client’s credit card and charge after you complete each segment of the work.
This retainer arrangement is also ideal if you have a longer project, where a contract is common, and then the payments are typically spread out with 10-25% down, a 20-33% payment after you complete the next segment of the work; get paid another amount to reach 67-75% at the next payment point; and you get a further payment to reach 90% to 100% for sending the client the final project, with the final 10% reserved for acceptance. When you sell a book to a publisher, a two payment arrangement is common, such as getting 50% on signing the contract, and the remainder on acceptance (which is better) or publication, although sometimes, there will be a payment when you are half-way through the manuscript.
While larger companies typically send checks in payment, individual clients commonly use credit cards or PayPal. In this case, either a retainer or pay-as-you-go arrangement works well, so you get paid before or immediately after completing the work.
The billing after completing the work arrangement is best when you are working with a larger established company that only pays this way after receiving an invoice, or with an individual client or small organization, where you have already started working together. Otherwise, with individual clients you don’t know, it can be risky to start with a bill and pay arrangement, since you can bill, but the client can easily not pay. If possible, persuade the client to work on a retainer or pay as you go arrangement. If the client is insistent on a bill and pay arrangement or will walk away, assess if you feel this person or company can be trusted. Then, if you feel this is the case, do only a small part of a larger project to make sure the individual or company likes what you are doing and pays you, before you go on. This way you cut down on your losses in case the client decides not to pay – sometimes due to the client’s own business problems because of a slowdown of customers.
In short, you can be flexible in what you charge and how you expect clients to pay you.
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Today, if you are seeking to pitch a book, script, or yourself to get published by a mainstream publisher, sell film rights for a book or a script, find an agent or manager, or get paid speaking engagements, it’s all about platform.
That means you need a solid track record in your field, expert credentials in what you write or speak about, a high-profile in the print and broadcast media, and a large social media following. In short, in today’s media and celebrity driven world, you need to do something to stand out. That typically means doing your own publicity and social media campaign to create a brand for yourself, whether you write books, scripts, or films, or conduct workshops on some topics.
This platform has become especially important to sell both nonfiction and fiction books to mainstream publishers, though these guidelines are equally applicable to any field where you are creating creative content. At one time, publishers would build campaigns around new authors to establish them in the media firmament. But now, with rare exceptions, that is no more. New authors have to bring to the table their own marketing and publicity campaign, and already have key elements of this campaign in place, such as 50,000 or more Twitter followers.
Occasionally, once unknown people break through the media clutter, when they are discovered through a human interest story that goes viral. Then, agents come knocking on their doors to represent them, and they get offers of publishing and films deals based on their life story, as well as requests to speak at big events. They may even get merchandising offers to feature them in a line of products based on their story. But mostly, the already famous, such as Hillary Clinton, Bill Clinton, Angela Jolie, Kim Kardashian, and other household names are the ones who get the deals.
Thus, to stand out yourself, you need to create a powerful platform to get a deal. As Carole Jelen and Michael McAllister write in their book: Build Your Author Platform: The New Rules: A Literary Agent’s Guide to Growing Your Audience in 14 Steps, “An author’s platform is the most powerful key to success in today’s saturated market, and increasingly publishers are demanding that new authors come to them with an existing audience of interested followers. Authors who are self-publishing have an even bigger need to build an engaged audience.” The same might be said for authors who want to sell scripts or film rights to a book, or for speakers seeking to get booked on the paying speaker circuit.
So what are these elements that make a platform today? They include the following:
1) a personal website which features you and your books or other creative endeavors; and today your website should be optimized to be viewed on mobile platforms;
2) a blog to build a community with your readers;
3) a Twitter account and following, which you should build up to the many thousands; preferably 50,000 or more;
4) a presence on Facebook with both a personal page for your personal brand and a page for your book, film, or speaking topics;
5) an author’s profile and following on LinkedIn;
6) speaking engagements, featuring your live personal appearances at organizations and events;
7) articles published through various publications and websites, including on article aggregator sites, such as Huffington Post;
8) radio podcasts and guest appearances;
9) book or script trailers and video blogs on YouTube;
10) a website for each of your books or creative endeavors;
11) an author page on Amazon;
12) book reviews of your books;
13) a celebration launch of your book, film, workshop, or other creative projects.
You should also send out or post regular press releases, such as through one of the PR services, like PRBuzz, PRWeb, PRWire, BusinessWire, Cision, or ExpertClick. Additionally, make yourself available to promote what you have written or created, and let the media know you are an expert in certain areas, so you get called to comment on recent developments in your field. For example, when I wrote a series of books about crime, I was frequently asked to comment on the latest criminal cases in the news; when I wrote several books about relationships in the workplace, I was often called to comment on work issues, such as complaints about bad bosses and office shootings.
If you write a book proposal, feature what you have accomplished in the areas related to your topic and indicate where you already have a following. For example, in my proposals, I note that I am the organizer and assistant organizer of 10 Meetup Groups in L.A. and San Francisco dealing with writing and films that have nearly 10,000 members. Note any business groups you belong to such as a local Chamber of Commerce. Indicate if you have a speaker’s video and provide a link. As relevant, point up your academic credentials, such as if you are writing or speaking about mental illness and have a PhD in psychology or have worked with hundreds of clients. Highlight the most influential media attention you have already gotten from newspapers, magazines, the Internet media, and radio and TV guest appearances and interviews. Also, consider self-publishing a book in your field to help you gain additional credibility and speaker’s engagements.
In short, think of yourself as a celebrity in the making as you create your author’s brand and platform. If you need assistance with any phase of this process, from writing your book or script to getting published, produced, or promoting yourself, Changemakers Publishing and Writing (www.changemakerspublishingandwriting.com) and Publishers Agents and Films (www.publishersagentsandfilms.com) can help.
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One issue that frequently comes up in workshops or online forums is whether you need a copyright for your film or book. Occasionally people ask if they can use what is sometimes called the “poor man’s copyright,” where you send yourself your material in a sealed envelope, so you can later prove that you wrote it when you did.
First, the “poor man’s copyright” is perfectly useless. It is a myth that makes the rounds from time to time, usually because someone has just heard about it from someone else and wants to find out if it is true. Well, it isn’t. At best it might establish a date of mailing. But there are so many loopholes in that mailing to make a proof of anything problematic. A big problem is that one can easily steam open an envelope or mail an unsealed or empty envelope to oneself, and then put the document in the envelope and seal it up after the unsealed or empty envelope comes back in the mail.
Another misconception is that you need to formally register a copyright with the U.S. Copyright Office in order to have a copyright. You actually have a copyright from the date of creation once you write your book, script, article, proposal, or anything else. You are similarly covered by a copyright when you draw something, compose music, record a song, or other creative work and record it in written, visual, or aural form, though you can’t copyright an idea or title. A title might be covered by trademark, if you are using it or intend to use it; but that’s a more complex subject, since you can choose from several dozen categories in which to register a trademark, and you can run into complications when you use a trademark in one geographic area and another person creates the same or similar mark in a different geographic area, depending on what categories you each are claiming. But for all practical purposes, if you write a book, book proposal, script or other written materials, you are dealing with copyright law and the Copyright Office in Washington, D.C.
So essentially the question you are really asking is: “Should you ‘register’ a copyright?” with the U.S. copyright office. If you are writing a script, there is also a possibility of registering it with the WGA (Writers Guild of America), either in Los Angeles or New York, though most register it in Los Angeles, and some producers and agents/managers may ask you to do this. However, that’s not the same as registering a copyright with the government; a WGA registration is more like just putting it on a list that establishes your date of conception, and then you have to renew the WGA registration every 5 years if you register it in L.A., every 10 years if you register in New York.
By contrast, registering a work with the Copyright Office gives you a registered copyright as of the day of registration. The most efficient and economical way to do this is to register online, which is currently only $35 for an individual copyright, meaning just one item is being copyrighted by one author. If there are more authors or this is a combined registration of different properties, it is $55 to register online. It costs more to go the old fashioned postal mail route — $85 — and it will take 2 months or more to get your registration. Ideally, go through the online system, where you are walked through a step by step process to answer each question about the name of the author, date of registration, and other data. Next, you are directed to pay and upload a file with your material (although you can mail it in instead). Then, your answers are entered into the copyright form which is sent to you in a few months.
The costs can mount up if you have multiple items you want to register, so you might consider whether a copyright is really necessary. Take into consideration the fact that a copyright gives you the right to pursue your rights online or in court, but you have to take actions to enforce your copyright, which can be time consuming and expensive. For example, the most cost effective way of using a registered copyright is to prevent someone else using your material online, such as by sending this information to the offending website owner or to a web hosting company which is hosting a website with your copyrighted material. You just send a take-down notice with evidence of your copyright, and normally the hosting company will take it down if the website owner doesn’t.
However, it is very expensive to take any legal action in court to enforce a copyright, so a registration won’t be of much use if you are seeking compensation from someone who has improperly posted your material online and doesn’t have any money. But if you wait, maybe they will have money or they may arrange for someone else with money to use your material – at which time, you can inform them that you own the copyright and you aren’t giving your permission without a just compensation, whereupon you can negotiate the terms with them if they willing to do anything. Otherwise, you have the basis for taking them to court and claiming statutory damages, which may lead them to drop your material or seek an agreement from you.
In general, given the expense and limitations of a copyright, it is not necessary to register the copyright for a proposal or manuscript. The situation is different if you self-publish a book or if a traditional publisher publishes it and, as is usual, assigns the copyright to you. In this case, the publisher will generally file for the copyright in your name. If not, it is a good idea to file for copyright yourself, especially if you feel the book has a good commercial value for a general audience, since there is more risk of someone using your material or even filing a registration on a copy of your work.
Otherwise, if your work is unpublished, it may not be worth the time and expense, since publishers and agents are unlikely to use your material without you, since publishers generally want you as the author to be front and center to promote your book. And normally there isn’t the kind of money in a published book as there is in a produced film or recorded song. So with a book, unless it just makes you uncomfortable to not register a copyright, I feel it isn’t necessary – especially if you have written many books, because of the high cost involved. Even if you self-publish a book, it may not be necessary to register a copyright, especially if you have published multiple books, so the registration costs are high, since most self-published books average about 150 copies in sales.
So if someone pirates your book, it probably doesn’t matter whether your book’s copyright is registered or not, since it is unlikely you can do much more than send a take-down notice to the multiple sites offering free copies of your book and hope they take it down. If they don’t, it’s not normally cost-effective to try to pursue matters any further.
Likewise, if you write articles it is not necessary to copyright each one, especially when you are making the articles available for free. Just use them for promotional value, though if you combine the articles together into a book and self-publish it, you might get the copyright then.
By contrast, if you complete a script, treatment, or TV series or show proposal, it is a good idea to register a copyright, whether or not you get a WGA listing. Many producers for their own protection will want you to have a registered copyright, and often any NDA document they ask you to sign will have some language about your having only the protection in what you have copyrighted and not in any similar ideas they might have developed in house or obtained from another writer or other party.
Another reason for registering a copyright in the film world is because it is so competitive, and sometimes, if a script reader sees the potential in your idea, it could be shared with others, though it might undergo some further changes in the script. Then you could be out of the loop, although a registered copyright will make it more likely for you to be involved in the project going forward. Or it could lead to a payoff to get your copyrighted material signed over from you.
In sum, in the case of books and articles, it is generally not necessary to get a copyright unless you have high hopes for a large commercial sale or are willing to pursue take-down notices or a court case against someone who copies and sells your book and has the money to collect if you win. But if you write a script, TV show proposal, or treatment, get your material registered, since you will often need it to even get your script considered by producers, agents, managers, or others in the film industry.
A recent trend among some major publishers is creating special imprints where writers pay to get published or asking for a pre-purchase commitment of a minimum number of books. These offers are coming from established companies with a tradition of paying writers an advance as well a royalty, even if it’s a low advance, or in some cases a no-advance offer. But whatever the specifics of the deal, the writer has not had to pay anything or make a purchase commitment.
However, now this pay to play offer has come about because publishing has become much more difficult for what has been traditionally called the “mid-list” book by a relatively unknown author. As a result, so sales have gone down, as have advances. What publishers increasingly want and are willing to pay for with big advances are books by well-known and celebrity authors with a high-profile platform.For example, authors like Hillary Clinton may make millions in advances, plus millions more in sales, while advances for mid-list book authors have commonly shrunk to about a third to a half of what they were. So instead of getting $15,000 to $20,000 for an advance, you may get offered $5000 to $10,000, or even less.
Paying lower and no advances are a matter of market economics and reflect the growing inequality/rich and poor divide throughout society generally. In publishing, too, the very successful high profile authors are getting more – often much more — in today’s celebrity and media driven culture, while other authors are getting less.
At least in low or no-advance scenarios, the writer is simply getting less. But in many instances, publishers are asking writers to be like self-publishers who are paying for their publication by committing to buy a minimum number of books. However, when this publishing is by an imprint of a major house, the publisher still is in control, though the copyright as it has traditionally, remains with the author. The main advantage of this arrangement compared to self-publishing with a company which just prints your book and leaves the marketing up to you is that the imprint is affiliated with the major publisher. So the book is normally distributed through that publisher’s channels, rather than being a print-on-demand or e-book available on your imprint or the imprint of the self-publishing company. Thus, with a pay to play deal with a traditional publisher, you may be more likely to get reviewed and distributed, though you are still paying a hefty amount up front, rather than the publisher paying you – or at least not making you pay for publication.
Commonly, these payment commitments range from about $10,000-50,000, which is a substantial amount – and unless your book sells very well, you are unlikely to make all of that money back or turn a profit. For example, one author was offered a deal from Wiley requiring a commitment for 10,000 books, which would cost at least $50,000 to $100,000 depending on the wholesale purchase price to the author. Three co-authors were initially offered a deal based on buying 3000 books, later negotiated down to 2000 books, at $15 each – a total of $30,000, so even if thought Wiley offered an advance of possibly as much as $5000, the authors would still have to pay $25,000 up front for the books. No wonder they turned down the deal.
A publisher’s rationale for this requirement to pay up front for books is that the publisher expects the author to do programs where they can sell high numbers of books, which will be a win-win for the publisher and writer. But if the writer doesn’t have such a platform, the writer will end up with huge piles of unsold books to be stored away somewhere like a basement or garage. Or maybe the books might make a nice charitable give-away.
Perhaps the main advantage of a pay for books arrangement is getting the credentials and bragging rights of having a book with a major publisher, which might open other doors down the road. But if the book doesn’t sell very well because you aren’t able to do much to support these book sales, this credential might not matter very much in pitching future books to other publishers. In fact, the low sales of a previous book might be a disadvantage in pitching the next book, since major publishers usually do little to promote these mid-list books; they depend on the authors to do much or most of the publicity and promotion, so low sales in the past can be a problem.
At least the publishers with these pay to publish arrangements are commonly still somewhat selective in what they publish, since they want to maintain the quality of their reputation. So they don’t offer these deals to everyone, as do the self-publishing companies who are essentially printers. So there is some selectivity. But you still have to pay.
Thus, be cautious when you are offered such a deal. Ideally, it’s best to get a publisher who will pay you to publish your book or at least offers a no advance arrangement. But if you aren’t able to get such a deal, under some circumstances it might be an advantage to go with a pay to play publisher for the prestige of publishing with a traditional publisher, as long as you understand you may get little or none of your payment back, though there is always the chance of getting more.
On the other hand, if a pay to play deal from a traditional publisher is the only option available to you, it might be worth considering self-publishing under your own or a self-publishing company imprint. These prices can range from nothing if you do it yourself under CreateSpace or Kindle or similar platforms to a few hundred dollars for help using these platforms or to a few thousand dollars from many self-publishing companies who charge more. Just be aware that you will still commonly need to do your own promotion and publicity to call attention to your book if you set up distribution through a self-publishing platform or company. But now with most publishers today, even those who pay, you still need to cover most or all of the publicity and promotion. Unless you are already a very well-known personality or celebrity, that’s the way of the publishing world today.
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Sometimes professional writers are offered the opportunity to work as a co-writer. Should you do it, and if so, what the best way to protect yourself should problems develop?
Co-writing can be an ideal arrangement, when you have long been friends or business associates and you both share a passion for the project. Then, you can bounce your creativity off each other and create a great project together.
But what happens when you are approached by someone who thinks they have a great idea, and now they need a writer to make that happen? In many scenarios, this can turn into a paid project where the writer works as a ghostwriter and is paid on a work-for-hire basis by a client, or this can turn into a co-writing agreement when both parties work well together.
I believe starting with a work-for-hire agreement is an ideal arrangement when you are approached by someone you don’t know, because you don’t know how well you will work together or if you will share a similar vision for the book or a film project as it develops. This way, if the person with the project has the budget, he or she can maintain control of the project, while you write what the person wants. Then, if the relationship works out and you both want this, you can turn the book or film into a shared royalty agreement. One common scenario is for the writer to finish the project at a lower fee, such as less 25-35%, in return for a percentage of the royalty (commonly 50-50) after anything paid up front is deducted.
Often the situation of a shared royalty arrangement from the start comes up when the person with the idea, notes, or a rough draft has a limited budget. This shared agreement can work well, if you soon come to share the writer’s vision of the final project and you feel comfortable sharing in the project. Also, it can work well if the project is in your own field of expertise, and you feel the project has a good likelihood of getting sold, so you aren’t giving up the regular income you depend on in return for something that’s a risky bet.
However, there are a number of cautions to watch out for in co-author arrangements with someone you don’t know well, such as when you respond to an ad for a writer to be a collaborator or co-writer. One problem is that you may start off agreeing that this is a shared project, but then the original author becomes controlling and you start to feel like a hired hand, as happened to one writer who was enticed into doing some chapters for a book by a psychologist. The psychologist claimed she wanted someone to be a true collaborator and share the authorship and royalties. But then the psychologist turned into a tyrant, who was very critical of what the writer wrote, because she wanted everything expressed a certain way. Eventually, the writer was able to escape the nightmare with a signed work-for-hire agreement and got paid in full for what he had discounted to be a collaborator.
Another problem in a co-writer project occurs when the original author has less and less time to contribute to the project or loses interest, because of other commitments. So there isn’t enough information to complete and sell the project, and the writer is stuck with getting less or nothing, because of agreeing to a collaboration. For example, one writer faced this situation after writing situation when the client writing his memoir suddenly decided that he shouldn’t do this book now, because his psychiatrist thought it wasn’t a good idea. Besides, now if he did pursue the book, he wanted full control of both the book and the possible film based on it. Fortunately in this case, the writer was able to turn the collaboration into a work-for-hire situation for the work already done and get paid accordingly. But in many cases, a project simply dies at this point, and the writer doesn’t get paid.
The other big problem with a collaboration is that when the project is completed, it may not sell or may only bring in a very small advance, which is less than the author would get paid for writing the book, proposal, or script as a ghostwriter. Then, if there is a very low or no advance, any future work on the project has to be written largely or solely on spec.
Thus, given all these potential problems, my usual approach is to start off as a ghostwriter for at least the beginning stages of the project. Then, if the project is in a field I normally write about and we both feel a co-writing arrangement is desirable, we sign a co-writing agreement, and I reduce the total costs on the project by 25% in return for sharing in the proceeds should it sell. Thereafter, the original author is paid back in full for anything paid to me, before we share in the royalties 50-50. Such a deduction before sharing royalties is a typical arrangement, and I have found this approach works best for me.
What’s best for you? I suggest treating each co-writing arrangement on a case by case basis, taking into consideration the topic, how much you like both the project and the author, the potential for selling the book or film, and how much a sale is likely to bring. Then, compare that to what you would make as a ghostwriter, since normally the most you will earn on most books and films is what you are paid as an advance. Additionally, consider your own income needs and whether you can afford to take a chance on getting less up-front as a co-writer, and whether starting this project as a co-writer is the only option, because that’s all the original writer can afford.
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A big issue for many writers is what to do after you get a publishing or job offer. What if the publisher or employer has a tight deadline, and to make the deadline you have to start writing before you get a payment or a signed contract? Should you get started and risk not getting paid or not getting the contract? Or should you wait, which could mean losing the job or the contract?
The answer is, as they say in the law, it depends. What to do depends on such factors as how much money is at stake, how much work you have to put in before the promised payment or contract arrives, and how solid and trustworthy the individual or a company is that you will work for. Then, too, consider that the person hiring you could change his or her mind or that the client might be a subcontractor for a client, so if the ultimate client doesn’t pay or changes his or her mind, you could be unpaid for any work you do before you receive any payment on the project.
I began thinking about this issue after I was hired by a client who was putting together a book and website for another client. Initially, this subcontractor just wanted a book and wanted a proposed fee for writing it. But after I bid and got the job, the subcontractor said he wanted a website included for that total amount. Not wanting to lose the job, I didn’t say anything about the change, figuring the website write-up would only take a few hours. Then, since the client had a short deadline on the website copy and his staff couldn’t send the contract and check until the following Monday, I agreed to start on Friday.
In making this decision, I even turned down an offer for a credit card payment, since Master Card would take 4%. But after I edited the Frequently Asked Questions section and got the go-ahead to do more, I found the instructions about the website copy unclear, and after I turned in a few pages for feedback, the subcontractor called to cancel the contract for both the book and the website. He said he didn’t have time to do any more reviews and no longer wanted me to do the book, so he wouldn’t be sending the contract or advance check. But I had already spent about 5 hours unpaid on the project.
At first, the client tried to get out of paying me, though ultimately he agreed to pay, saying my offer to accept $500 for the work I had done “sounded good,” though later he sent me a check marked “In protest.” After it went through, I decided it best not to respond to explain anything. “He’s just messing with you,” another writer told me. But the incident got me thinking about payments and contracts generally.
I’ve worked with dozens of publishers where it can take several weeks or even a month or two to get a finalized contract, and the payment often doesn’t arrive until 30 to 45 days after that. But the deadline for submitting the copy means I need to start writing it before the contract arrives. Whenever this has happened, my experience has been that the contract does arrive and so does the payment.
In some cases, where the publisher has a no-advance contract, so the first payment will be several months after the book has been successfully published, the book has almost always been published and eventually I have gotten royalties. So with established publishers, working before the contract or payment arrives has usually been fine. But with smaller publishers, such an agreement can be very iffy. The publisher has no initial investment, and so the publisher can easily decide not to publish.
I and other writers have also generally had success in getting paid after doing some work or completing a project with larger, established companies. Commonly, they hire a number of writers, as well as other employees and contractors, and have a policy in which writers do the work and submit a bill to get paid – generally within 10 to 30 days. Usually there is an agreement describing what is to be written, sometimes called the “deliverable,” and the writing usually begins after getting the contract, with the payment following within a short time after delivering the work.
However, when it comes to writing for individual clients or small companies, that’s when problems arise, and there can be little recourse if the individual or company doesn’t pay, especially when they are based in another state, or worse, another country. It takes time and effort to go to small claims court, and you can’t use small claims court for an out-of state or out-of country client, plus you can encounter many difficulties in trying to collect even with a judgment from a debtor who doesn’t want to pay.
Thus, I have come to realize that in working with private individuals or small companies, it is best to either get a retainer or set up a pay-as-you-go arrangement using a credit card. Then, whether or not you are getting a contract, don’t do any work until you are paid in advance. Clients may express a concern about paying you and then not getting the work, but they have an easy way to complain and get a refund if this is the case, by appealing to their credit card company or to PayPal. But if you aren’t paid, you don’t have the option. You have to depend on the client’s willingness to pay.
It may be fine to arrange for a check, credit card, or PayPal payment after you do the work once you have established an ongoing trusting relationship with a client. But until then, initially, it is better to get paid before or at the time you do the work, however the client wants to pay (check, credit card, PayPal, or even cash). As one writer associate put it, “I don’t put pen to paper until I am paid up-front and receive any signed contract that’s required for the project. And if the client has a tight deadline making it difficult to get me the payment or contract, then that’s the client’s problem. He or she should do better planning. I simply won’t write anything until I have at least a partial deposit or retainer up front.”
So that’s my recommendation. Use a “pay to play” approach in dealing with individuals and small companies, and try to get this arrangement with larger companies if you can, but if not, take the chance they will be good for the money, after you do some or all of the writing. You may lose out on some writing assignments from individuals and small companies as a result. But you will save yourself a lot of problems from clients who don’t pay after you have done the work.
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