Copyright © 2002 Tonya M. Evans, Esquire. This article may not be copied or distributed without the consent of the author.
DISCLAIMER: The authors are not engaged in rendering legal or other professional services as a result of the information contained in this article, and this article is not meant to constitute legal or other professional advice. If legal or other professional assistance is required, the services of an attorney should be sought.
THE MOST common fear authors have when faced with a publishing deal is the dreaded fear of negotiation. In the spirit of not wanting to offend, many authors in first-time bargaining situations shy away from asking hard questions and requesting more favorable provisions. Worse still, some authors are intimidated by the process and the documents. That coupled with an author's excitement over the possibility of any deal, after receiving so many rejections, is a dangerous mix that often spells trouble. Authors do not want to challenge the agent or publisher because they do not want to be perceived as difficult or money hungry. But remember, this is a bottom-line business, and the operative word is business. Agents and publishers have their own attorneys, and so should you. Any reputable person in the industry understands that offers should be negotiated by competent professionals; it's just business.
IT IS EQUALLY important for you to understand what you are giving to a publisher and what you are entitled to in exchange for those valuable rights. Once you sort through those macro issues, it is critical to put the agreement between you and the publisher in writing because the terms and conditions determine what rights are transferred, what compensation you and the publisher receive, when the rights revert back to you, and what state law governs the agreement if a disagreement develops. You should never leave these issues to oral agreements or handshake deals. Always get it in writing and make sure the contract states clearly what each party agrees to do and what each will receive in return.
NOW HEAR THIS, AUTHORS: You do a disservice to yourself, given your hard work and considerable talents, when you dot every "i" and cross every "t" in your manuscript but rush through a publishing agreement, often without the guidance of an experienced literary lawyer, and sign it without negotiating the terms from a position of knowledge and strength. Or worse yet, you fail to ensure that all material terms are negotiated favorably and stated clearly in a written agreement signed by you and the publisher.
IN THE DAYS and weeks leading up to the signing of a publishing agreement you are in the strongest position from which to negotiate. And this time is the most important because your contract defines what rights you are transferring, what (if any) rights you keep, how your agent and publisher get paid, and how you get paid. Keep in mind that what you agree to today affects you and the other party or parties for years to come. Don't you think that is worth taking seriously and slowly?
CONSIDER THIS: although a certain author advance and royalty schedule may seem great now, how fair will it be when you are a best-selling author yet still earning pennies on each book sold while the publisher has long since recouped its investment and is still raking in the lion's share of the profits? Or perhaps transferring all of your rights to a publisher may seem like a good idea now. But what if the publisher does not have any intention of using some of the rights or is actually in no better position than you to properly exploit them? Why transfer them in the first place? This is especially true since it may be more financially beneficial to divide the rights and sell them to a number of different buyers then to lump them together and sell to one buyer.
THE POINT IS that there is no such thing as a non-negotiable contract. Do not sign a contract with anyone who tells you there is. Everything is up for discussion. Compare this process to other areas of your life and ask yourself, "Would I just sign any paper given to me if I were buying a house or car, or making a long-term investment, or going into a long-term business relationship with someone I just met?" We venture to guess that your answer to these questions is no, and that you would take care to read the document and consult with someone more knowledgeable than you to make sure the rights and responsibilities of both parties are set forth clearly and that you are getting not only what is fair but what is in your best interest, to the greatest extent possible.
Excerpt from Literary Law Guide for
Authors: Copyright, Trademark, and Contracts in Plain Language