A Fair Publishing Contract For Authors And Publisher
Contract Musings
I signed my first contract with a major trade publisher a little over ten years ago, and I've learned quite a bit about publishing contracts and their place in the publishing ecology since that time. The contract looms large to the author before the signing, but it quickly recedes into the background once the deal is inked, unless there are problems during the editorial and production process. Normally, the first time the author takes out the contract and really studies it is when something looks funny on the royalty statement, like books being sold at a deep discount to a subsidiary of the publisher in another country. I've participated in a number of author's discussion lists online, even attended a couple book contract events put on by the Author's Guild while I was a member. Anecdotally speaking, about 90% of authors I know believe their publisher took advantage of them when they signed their first contract. If the first book flops and the author and publisher go their separate ways, that first contract can be written off as a learning experience, but if the first book sells, authors often find that they have made legal commitments that will continue to affect their relations with the publisher and limit their options as authors for years, or even decades to come.
From the publisher's standpoint, publishing is a capital intensive, risky business, and most new titles can't be called successes even if they aren't disasters. Publishers who have achieved scale through growth or acquisitions and are publishing hundreds or thousands of titles a year with a deep backlist to boot don't have any business complaining about risks. They're playing a numbers game, and losing titles are just part of the equation that will be balanced by bestsellers. Which books tank and which pay the bills may come as a surprise to the editorial board (Ed board) and the acquiring editor. I don't think it ever comes as a surprise to the author when a book does well, and always comes as a let-down when it doesn't. As an author, I've always been quite clear about what I want from a publisher, namely a fair deal. I'll have to admit I was a little surprised when I was a name computer book author with a top book in my genre, and found that my negotiating power was not much better than before I'd had a successful title. I started down the garden path several times with publishers for new titles, only to break off when it became apparent they were only willing to make cosmetic changes to their contract offers, or increase the advance. It seems that publishers are used to authors jumping at the advance carrot and can't be bothered going back to their legal department for the oddball author who wants to change the basic equation in any way.
In considering what kind of contract I could offer to science fiction writers as a new publisher, I'm trying to look at the contract from both sides. It's easy to come up with different scenarios that are fair to the author. For example, a 50/50 split on the net is fair to the author by definition, at least in my book, but it's not so easy to come up with a business model where it's fair to the publisher. First serial or nonexclusive rights are more than fair to the author, but put the publisher in a position of paying strictly for usage, rather than acquiring an asset. As acquiring assets is fundamental in the book publishing business, it's a tough nut to swallow. On the bright side, nonexclusive rights make any out-of-print clause redundant, since the in-print life of the book puts no limitations on the activities of the author, even to the extent of reselling in the rights to the same story over again.
I've been told that the traditional model for publishing anthologies is a one time payment, or honorarium, and no royalties. From the author's standpoint, if the one-time payment is large enough and the rights are nonexclusive, that might be acceptable. I don't have a clue what the going rate is for science fiction anthologies, or whether it goes more by the name value of the author or the freshness or length of the story. But the up-front balloon payment doesn't really appeal to me for two reasons. First, I don't think that any publisher could make the payment large enough that the authors would still feel it was fair if the anthology was successful. Second, every dollar a new publisher spends on pre-publication costs is a dollar that won't get spent on promotional activities.
Now, I haven't done the research yet to determine where the best promotion opportunities for science fiction exist or what expenses would be involved, but I could see including some language about it in a book contract that focuses on royalties rather than one-time payments. If I were a contributing author (and perhaps I will be) I would want to know what the publisher is going to do to promote the book aside from getting it into the industry databases and online bookstores. Maybe part of the deal would be a public, or semi-public accounting of all of the publisher's activity for the title, including detailed expense reports and sales. I'm not worried about writers seeing behind the curtain and understanding exactly how the publishing model works, but I'm not sure about the wisdom of sharing such data with potentially competing publishers.
What I don't want to do is become some foppish "gentleman publisher", paying for the privilege of playing at the publishing game. Publishing has to be a business for me, it's not a question of how much I can afford to lose on a publishing experiment, it's a question of trying to win. There's simply no challenge to losing money at any activity and pretending it's a business.
Posted May, 27th, 2007 by Morris