Publishing Agreement Checklist

Publishing Agreement Checklist

(Source: copylaw.com)

It’s never too early to learn about the business of writing. Here are the key clauses that should be included in a good book publishing contract. I’ll be doing more research in this area and I’ll post explanations and clarifications when I find them. (See my post on contracts.)

I. General Provisions

1. Name/address of parties

2. Description of work (synopsis)

-Tentative title, no. of words, illos, intended audience, fiction, non-fiction, etc.

 

II. Grant of Rights and Territory

1. “All rights” or license?

2. Term or time period (i.e., usually the life of the copyright)

3. Geographic scope

a) The world?

b) Limited (e.g., U.S., its possessions and Canada)

4. Exclusive rights granted

a) Primary rights

-Hardcover

-Trade paperback

-Mass market

-Direct mail

-Language(s)

b) Secondary (subsidiary rights)

-Periodical rights

1) First serial (i.e., pre-publication excerpts)

2) Second serial

-Book club

-Dramatic rights

-Film/TV rights

-Videocassette/audiocassette

-Radio rights

-Merchandising (commercial tie-in) rights

-New Technology

-Foreign translations rights

-British Commonwealth rights

 

III. Manuscript Delivery

1. Delivery requirements

a) When due? Date realistic? Time is of the essence?

b) What form (paper, spacing, margins.)?

c) What to deliver?

-No. of manuscript copies, disks (what WP format?)

-Index (who pays?)

-No. of tables, illustrations, charts, photos (who pays?)

d) Copyright permissions and releases

-Scope of rights

-Who pays?

2. Manuscript Acceptance

a) Criteria: Satisfactory in “form and content” or “sole discretion of publisher?

b) Termination for unsatisfactory manuscript

c) Notice of acceptance/dissatisfaction

d) Good faith duty to edit

e) Return of advance

-First proceeds clause

-False first proceeds clause

 

IV. Copyright Ownership

1. “All rights” vs. exclusive license

2. In whose name will work be registered?

3. When will work be registered? (Should be done within statutory period)

4. Joint authors and collaboration agreements

5. Work for hire

a) Freelancers

b) Contributors

c) Employees

6. Use of name/likeness

7. Reserved rights

 

V. Authors Representations and Warranties (Not negotiable!)

1. Author sole creator

2. Not previously published; not in public domain

3. Does not infringe any copyrights

4. Does not invade right of privacy or publicity

5. Not libelous or obscene

6 No errors or omissions in any recipe, formula or instructions

7. Limited only to material delivered by Author

 

VI. Indemnity/Insurance

1. Author indemnifies publisher

2. Indemnities applicable to “claims, ” “allegations,” and/or “breaches”?

3. Withholding of legal expenses. Held in interest bearing account?

4. Include Author as additional insured on publisher’s insurance?

5. Does publisher have ability to settle claims without prior approval of Author? If so, are there a dollar amount limitation?

 

VII. Publication

1. Duty to Publish within ? months

a) Force majeure

— Any cap on delays?

2. Advertising and promotion

3. Bound galleys/review copies

4. Style or manner of publication

a) Title consultation or approval?

b) Book jacket

— Right of author consultation? Approval?

c) Changes in manuscript

5. Editor/Imprint

 

VIII. Money Issues

1. Advance against future royalties

2. When payable? (in halves, thirds, etc.)

3. Royalties and subsidiary rights:

a) a) Primary rights

-Hardcover royalties

-Trade paperback royalties

-Mass market royalties

-Royalty escalation(s)

-Bestseller bonus

-Royalty reductions

1) deep discount and special sales

2) mail order sales

3) premium sales

4) small printing

5) slow moving inventory

b) b) Secondary (subsidiary) rights royalty splits

-Book club

-Serialization (first serial, second serial)

-Anthologies, selection rights

-Large print editions

-Hardcover

-Trade paperback

-Mass market

-Foreign translation

-British Commonwealth

-Electronic // new technology rights

. Is the right to intermingle with third party content included?

-Audio rights

-Motion picture/TV

-Merchandising

4. Reasonable reserve for returns

a) What percentage withheld?

b) When liquidated?

5. Definition of royalty base (retail price, wholesale, net price?)

a) At average discount of 50%, 20% of net is same as 10% of list

b) At average discount of 40%, 16-2/3% of net is same as 10% of list

c) At average discount of 20%, 12-1/2% of net is the same as 10% of list

6. Recoupment of advances

 

IX. Accounting Statements

1. Annual, semiannual, or quarterly statements?

2. Payment dates

3. Cross-collateralization

4. Audit rights

5. Limit on time to object to statements

6. Limit on time to bring legal action

7. No examination on contingency basis

8. Pass through clause for subsidiary rights income

 

X. Revised Editions

1. Frequency

2. By whom?

3. Royalty reductions if done by third party

4. Sale of revised edition treated as sale of new book

5. Reviser/Author credit

 

XI. Option

1. Definition of next work(s)

2. When does option period start?

3. Definiteness of terms

4. What type of option? (e.g., first look, matching, topping )

 

XII Competing Work

1. How is competing work defined?

2. How long does non-compete run?

 

XIII. Out-of-Print

1. How defined?

2. Notice requirements

3. Author’s right to purchase plates, film, inventory

 

XIV. Termination

1. What triggers reversion of rights?

2. Survival of Author’s representations and warranties

3. Licenses granted prior to termination survive

 

XV. Miscellaneous

1. Choice of governing law

2. Arbitration clause

3. Bankruptcy

4. Modification

5. Literary agency clause (assignment of X% to author’s agent)

(Source: copylaw.com)

Be sure to leave a comment if you have something helpful to share about publishing contracts.

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