Contracts, rights, agents: Successful writer’s survival guide

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Established author/editor Cynthia Reeser is celebrating the success of her latest – How to Write and Publish a Successful Children’s Book. She offers her take and advice on unglamorous details of publishing. Save them and use as you work through the confusing details of contracts, agent deals, intellectual property rights, and other mechanics of running your writing business. If you want to sell your writing, you have to know how to manage your business, and as always, check with your own legal adviser before you sign anything.

Contracts, Rights, and Clauses, Oh My!
A guest blog post by Cynthia Reeser, author of How to Write and Publish a Successful Children’s Book: Everything You Need to Know Explained Simply (Back-To-Basics)

I meet people all the time — people whose careers do not include an emphasis on publishing — who retain the notion that published writers make a good deal of money from their work. Some of them do, yes-mostly the ones who hit best-seller lists — but the majority are just working stiffs like everyone else, and very few authors make their living solely from their writing.

But as a writer who hopes to see your work published, it is likely that at one point or another, you have given some thought to publishing contracts, and wondered about such things as royalties and rights. If you have not yet had the pleasure of going over a contract, know that they vary widely, but most include some basic commonalities.

Due to copyright law considerations, a publisher purchases one-time rights only, unless the contract or another written document specifies otherwise. Additional rights should be accompanied with adequate monetary compensation. Limiting the rights you sell to a single publisher can open opportunities for you to sell more rights to other publishers, such as reprint and foreign rights. A contract should allow for the reversion of rights back to the creator of the work in case the publisher goes out of business or changes hands.

Below are the rights that may be included in a contract:

  • First North American serial rights: Prohibits publishers in the U.S. and Canada from publishing the work simultaneously, providing what are essentially first rights to the publisher.
  • First rights: Allow the publisher to publish the work in its first incarnation, usually allowing for any medium, with the author or creator retaining all other rights. First serial rights must be purchased to allow for excerpts from the work to appear in newspapers, magazines, or other periodicals.
  • One-time rights: Allow the publisher or purchaser one-time use of the work, and does not guarantee initial or first publication. Rights automatically revert back to the author or creator once the work is published.
  • Second serial (reprint) rights: Allow a publication permission to reprint a previously published work in part or in its entirety.
  • Paperback reprint rights: Allow for reprint of a work in paperback. The first printing is usually in hardcover, but not always. Publishers have book rights, so they can negotiate paperback rights if the book was originally printed in hardcover.
  • Subsidiary rights: Includes translation rights, book club rights, toys and sales items based on your characters, serial rights, dramatic rights, and paperback rights. A publisher receives only book rights automatically. Agents will negotiate to sell subsidiary rights, including foreign rights; without an agent, a publisher will try to accomplish the same. The division of profits between author and publisher should be delineated in the contract.
  • All rights: Usually if a publisher wants to purchase all rights, it is because they have multiple channels through which they will market the book to maximize profitability. A publisher purchasing all rights should pay a premium to the author or creator for such a purchase; have a lawyer or agent negotiate for rights to revert back to you after the passage of a specified period of time. Ensure that the reversion appears in the contract or otherwise in writing.
  • Simultaneous rights: Purchased by more than one non-overlapping publication at the same time. Circulations between children’s publishers and religious publishers, for instance, would probably not overlap.
  • Foreign serial rights: If you have previously signed over North American serial rights only, rather than worldwide serial rights, you may sign over rights to foreign publishers for reprinting in a periodical.
  • Display or electronic publishing rights: Can include provisions for images or text to appear on the Internet or in CD-ROM or other electronic forms. Sometimes referred to as Data, Storage, and Retrieval; can be listed with subsidiary rights. In negotiations, it may be wise to have the purchaser of rights specify as far as possible the precise media that will be covered by display rights. You can ask for a clause restricting display rights to read-only, to prevent further distribution. Doing so can enable you to later sell rights for video games, computer games, and interactive software products. As with anything agreed to, get it in writing.
  • Syndication rights: Allow serial publication of portions of a work in installments. The publisher and author split the profits remaining after the syndicate is paid commission.
  • Movie, television, and dramatic rights: Rights purchased by producers and directors.

Clauses

  • An escalation clause: When included in the contract, this clause provides for an increase in the percentage of royalties paid when the book sells a certain number of copies.
  • Net proceeds clause: This type of clause allows for royalty payments of net proceeds rather than gross. So if your books are purchased at a discount of 30 percent, that 30 percent discount cuts into your earnings. Sometimes a publisher offers royalties at a higher rate to make up for the loss in earnings.
  • Option clause: This clause provides the publisher the rights to your next book, or “work of a similar nature,” and comes industry standard in first book contracts. You may want to make sure that an option clause provides for the consideration of your next manuscript by the publisher for no more than a specified time period, like 30 days, after which, you are free to seek publication for the work elsewhere. It is standard etiquette to allow your publisher a first look at your next work. Negotiations for the removal or adjustment of the option clause normally take place in subsequent manuscripts.
  • Reserve clause: A certain percentage of royalties, or a “reserve against returns,” is held by the publisher to cover the return of any unsold copies of your book by bookstores. The clause will specify a certain percentage of sales to be withheld and the duration the money will be held. A suitable time period to allow for the reimbursement to you of this money might be about a year.

Agents are helpful for assistance with contract negotiation. They will help you to get the best deal from a publisher, because the percentage of money they make derives from your profits. Of course, agents are as difficult (if not more so) to secure than are many publishers, but are well worth the effort it takes to court.

Cynthia Reeser is editor-in-chief and founder of a quarterly literary journal, Prick of the Spindle, and author of HOW TO WRITE AND PUBLISH A SUCCESSFUL CHILDREN’S BOOK: EVERYTHING YOU NEED TO KNOW EXPLAINED SIMPLY. Cynthia authored a book on Kindle publishing, anticipated in early spring 2010. Her works of criticism, nonfiction, and poetry are widely published in both print and online media.

(image used above the post is borrowed from EditorInChic.com)

READ more:

Cynthia talks about journaling, at WomenDayByDay.com

Writing for content mills and making money

The complete details of copyrights

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