Publishing Contracts

The Basics

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Presented by Elaine English

Attorney and Literary Agency

Copyright 2009 Elaine P. English

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Print Publishers (traditional model)

v.

Electronic Publishers (new model)

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Major areas of distinction

Rights Revenues Term/termination

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Rights

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Copyright vests in the author of the work.

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Exclusive rights vested in copyright owners:

To reproduce the work in copies To prepare derivative works based upon

the copyrighted work To distribute copies of the work to the

public To perform the work publicly To display the copyrighted work publicly

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Book Publishing Rights

Three major categories:

Primary Secondary Subsidiary

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Primary

The right to print the work in book form.

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What’s book form?

hardcovertrade paper (softcover)mass market

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Is the right to produce an electronic book edition a primary right?

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Electronic Book Rights.

The exclusive right to use and generally exploit non-dramatic reproduction of the verbatim text of the Work, without adaptation and without the addition of any sound or images (other than any images contained in the print edition of the Work) in readable digital format.

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Digital formats:

Electronic download Disk CD/CD-ROM E-book reader (various formats) Or similar media of presentation whether

now known or hereinafter invented.

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Secondary Rights

(print related)

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Secondary Rights include:

Serial rights Book club rights Large print/Braille rights Premium or special editions Translations Anthology/condensations/abridgements

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Subsidiary Rights

(derivative rights)

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Subsidiary rights include: Audio rights Dramatic rights Movie and film rights TV and radio rights Gaming rights Cartoon/graphic rights Electronic multi-media Merchandising/commercial rights

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Trad. Pub. E-pub

SubsidiarySecondaryPrimary

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The lines are blurring.

E-pubs now asking for Print on Demand (POD).

Traditional publishers doing electronic ARCs.

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Rights granted to publisher should be negotiable.

Publisher wants easy access/control to whatever may be needed now or in the

future.

Author wants value for granting additional rights.

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Revenues

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Types of Publishing Revenues

Advance Royalties Proceeds from secondary/subsidiary rights

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Advances

Typically paid by all traditional (print) publishers

Generally not paid by e-pubs

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Advance = advance on royalties to be earned

Paid in installments On signing contract On delivery of manuscript On publication

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Royalties

Net v. List% of revenues % of list

pricereceived by Publisher, afterdiscounts deducted

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Typical traditional (list) royalties:

10 – 15% hardcover7-1/2% trade paper6-10% mass market

15% electronic*

*Harlequin pays royalties on e-books like mass market editions

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E-pub model for royalties:

35 to 40% of list price for e-books

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Note:

Some e-pubs pay royalties based upon net receipts when third-party distributors are

involved.

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Proceeds from secondary/subsidiary rights

If Publisher exploits, then 5 – 15% of net

If Publisher licensed, then shares all revenues 50/50 with author

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WATCH OUT FOR:

Lower royalties for direct sales to consumers

Should NOT apply to sales from publisher’s websites

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Timing of Payments

Traditional pubs: 2x year(90 days after close of six months)

E-pubs: monthly or quarterly

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Returns/Reserves

Most print books are sold to retailer/distributors on a returnable basis.

Publishers withhold royalties (reserves) in anticipation of returns.

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Should there be returns/reserves on e-books?

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Print on Demand

used to generate inventory for publishers

subject to returns/reserves

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Term/Termination

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Term of traditional publishing contracts:term of copyright

Term of e-publishing contracts:specific number of years (3,5,7)

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Term of copyright: Author’s lifetime + 70 years

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Possible to terminate if work is

“out of print”

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When is a book out of print?

If e-book?

If POD?

Needs to be defined: sales/revenue criteria

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What happens when contract is terminated?

Rights returned to author Publisher’s right to sell off inventory On-going licenses

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Other Miscellaneous Issues

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Preparation of Manuscript

Cover Art

Timing of Publication

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Free copies/review copies

Option

Non-compete

Bankruptcy