Written by Alyce Evans and Jennifer Tutty, Principal
It’s the moment that aspiring authors dream of. You’ve (finally) sent out your manuscript. Sleepless nights, early mornings and countless cups of coffee have gotten you to this point. Then, it all becomes real.
The publisher responds and you’re face to face with a book publishing contract.
So what do you do in the moments after the moment you’ve been waiting for? For all the talented writers, we’re here to break down the legal lingo and complex clauses of your book publishing contract.
What is a Book Publishing Contract?
Let’s go back to basics. A book publishing contract is an agreement between an author (that’s you) and a publisher, establishing each party’s rights and obligations. Under this agreement, the author provides the publisher with the rights to publish their book. The publisher provides the service of publishing the book and compensation to the author.
Before You Begin:
Before you crack open the contract, there are a few key points to remember:
– Make sure that all agreements are in writing. You’ve just spent a significant amount of time putting your story onto the page. Make sure the publisher does the same with your contract.
– Understand what you are signing. Read your contract carefully. Then, read it again. If there is something that you don’t understand, do some research. Speak to other authors about what is regular or irregular in a book publishing contract. Consult with your agent (if you have one) or a lawyer. Read this guide!
– Negotiate. Although it may seem daunting at times, remember that you’ve put in the hard work and the publisher has chosen your manuscript. They want to publish your book so don’t be afraid to negotiate. There are many professionals out there who can assist you. If you don’t want to negotiate alone, consider engaging a literary agent or an intellectual property or media lawyer
What You Need to Know When Reading Your Publishing Contract
Now, let’s move on to some of the clauses and terms you can expect to see in your book publishing contract.
1. Understanding Copyright
Australia’s Copyright Act 1968 (Cth) (Copyright Act) protects copyright in literary works. If you don’t categorise your novel as ‘literary fiction’, don’t despair. The legal interpretation of literary is a little different. It includes books, letters, academic papers, e-books, diaries, reports and even computer programs. Therefore, your book is a literary work under the Copyright Act.
If you’ve put pen to paper or typed words into a computer, your book is likely to be protected by copyright. As the author of the work, you are the first copyright owner.
This means that you have the exclusive right to reproduce your work in material form, publish it, perform it in public, communicate it to the public and make an adaptation of it. Additionally, if you do make an adaptation, you have all of these rights in regards to that adaptation.
2. Assigning vs. Licensing of Copyright
Tip: Do not assign your copyright to the publisher if it can be licensed instead.
Generally, authors will grant their publisher with a licence to use the copyright work (i.e. their book). However, sometimes, you will be asked to assign ownership of the copyright in your book to the publisher. When reading your contract and determining what is best for you, it is crucial to understand the difference between these two terms.
Assignment of copyright
Some contracts will require the author to assign the copyright in their novel. Any such clause must be in writing and signed to be effective. Once signed, it will significantly vary the author’s rights.
By assigning copyright, the author transfers their ownership in the copyright (and the associated rights) to the publisher. Unless the contract states otherwise, an assignment is generally permanent. Copyright is commonly reassigned back to authors under publishing agreements after 15-20 years.
Licensing of copyright
If the author grants a licence to the publisher, they give the publisher a right to publish the book. Crucially however, the author is still the copyright owner. Licences can be exclusive or non-exclusive however commonly they will be exclusive licences for book publishing agreements.
3. Rights Granted
The rights being granted to the publisher in relation to your book (regardless of whether the book is being assigned or licensed to the publisher) will be outlined in the publishing contract. These may be as broad or as narrow as the law and the contract allows. Some potential rights granted include the right to publish your book, distribute it in print and as an e-book and sublicense it to publishers overseas.
4. Exploitation Period
Book publishing contracts will generally refer to a ‘duration’ or ‘term’ during which the Publisher can exercise its rights in the book. An exploitation period could be as short as 5 years, often around 15 years and sometimes continues for the life of copyright in the book.
5. Territory of Use
A Territory of Use clause determines who (out of you and your publisher) holds what rights and where. For novelists in Australia, the contract is likely to define the territory of use as either:
– Australia and a few other countries; or
There are advantages and disadvantages to each of these options. Ultimately, the best choice for you depends on your publisher, your goals as an author and your own connections.
If the territory of use is ‘worldwide’, take a look at your publisher’s international presence. Do they often publish works internationally and are these successful? If so, it may be beneficial to grant them worldwide rights so that you gain access to their international connections and resources.
Alternatively, is your publisher popular nationally but still looking to break into the international market? Do you have your own overseas connections you can utilise? If so, you may want to consider limiting the territory of use. Doing so grants the publisher the right to deal with the work in Australia or other select countries. However, it also allows the author to enter contracts with other international publishers.
6. Delivery Clauses
A delivery clause sets out the date when you must ‘deliver’ the final copy of your manuscript to the publisher.
Not delivering your work on time (or failing to comply with submission requirements) can have serious consequences for an author. Your contract is likely to state what happens if you don’t comply with this. Often, non-compliance will allow the publisher to terminate the contract and you may need to pay back any advances.
Royalties are payments made by a publisher to an author, in exchange for the right to publish their book. Each time someone buys your book, you make money through royalties. Typically, royalties are expressed as a percentage of either:
– The recommended retail price (RRP) of your book (excluding GST); or
– The net receipts / trade price of your book.
The RRP is what customers will pay for your book in bookstores. The net receipts / trade price is the discounted price that booksellers will pay the publisher to purchase the book. This is an important distinction when determining whether a royalty rate offered is acceptable, as the net receipts / trade price will usually be lower than the RRP.
The industry standard royalty for print books in 2021 is 10% of the RRP of each book sold.
If your publisher offers you royalties as a percentage of the net receipts, consider the discount in pricing applied for booksellers to determine an acceptable royalty rate.
An advance is a sum of money that the publisher pays the author upfront or when certain events occur. Such events often include signing of the contract, delivery of a complete manuscript and after one year of publication.
Typically, the author will not receive any royalties until the publisher has recouped the advance amount through book sales. So, if you are paid a $10,000.00 advance, you won’t start earning royalties until the publisher has made this back through selling your book.
When considering an advance, find out the initial print run planned for your book (i.e. how many copies will be printed) and the RRP. This will help you to understand when you can expect to receive royalties and whether the advance is appropriate.
9. Subsidiary Rights
Subsidiary rights are all additional ‘special’ rights granted to the publisher other than the usual ones like publishing the book as a hard copy book or e-book. These might include the rights to reproduce the work in relation to a film or TV show, or to create merchandise in connection with the book.
Determining how you will allocate subsidiary rights is a strategic and commercial decision. Tip: Retain as many subsidiary rights when signing as possible. You can always grant these additional rights to the publisher at a later date (and for a larger advance hopefully!).
10. Creative Control and Approvals
When considering your contract, think about how much creative control you want to have over what the publishers can do with your manuscript. This includes the title, cover design and marketing strategy for the book, as well as subsidiary rights and uses such as merchandising, adaptations and film rights.
Do you want to be consulted and included in a collaborative process? Are you happy for your opinions and preferences to simply be taken into consideration? Or, do you want your approval to be required at each step?
Different people will hold different values and opinions about what is important to them. If the title and cover design of your book is non-negotiable for you, then make sure to read your contract carefully to determine what your rights are.
Remember, publishers engage professionals to work on these matters and you all have a common goal – to publish your book. Where possible, maintain balance between this goal and the value you place on retaining creative control. To enable the agreement to move forwards, be clear with your publisher about what you want and what you are willing to compromise on.
11. Publishing Options over Subsequent Works
Planning to write more books and build your literary empire? Time to take a look at this clause.
A clause in your publishing contract referring to ‘publishing options over subsequent works’ will be triggered when you write your next book. This clause typically gives your publisher the ‘first option’ to publish your next book. Depending on the contract terms, this may be limited to your next book in the same series or genre. Alternatively, it may be broad and include whatever you write next.
While the idea of writing more books may be an exciting one, consider the binding nature of this clause. Generally, it doesn’t mean that the publisher has to publish your next book. It means that you are legally bound to offer it to them before anyone else.
This means that you cannot sell the rights to subsequent books to a different publisher, unless your current publisher has given permission for this or been given the first option.
Be careful with this clause. If the publisher has the ‘first option’, you are also unable to publish the work yourself. This will restrict you from self-publishing, sharing your work with friends or family or entering it into competitions, until after your publisher has made a decision on it.
12. Moral Rights
Tip: Carefully read any moral rights clauses to make sure you are properly attributed as the author and that you retain the right to integrity.
In addition to copyright, all authors have moral rights relating to their work. These cannot be assigned to anyone else. However, they may be varied by a contract.
An author’s moral rights include the right to be attributed as the author of their book. This also extends to the right to not have the work falsely attributed to someone else. Additionally, authors have the right to take action if their work is treated in a derogatory way.
When the initial excitement of receiving a publishing contract simmers, remember: take your time to read it carefully, understand what it means and be prepared to negotiate. We look forward to seeing your novel in bookstores.
Written by Alyce Evans and Jennifer Tutty, Principal
If you have any legal questions relating to publishing (such as assistance with a publishing contact,a pre-publication legal review of your work, or defamation law or copyright advice), please contact us through our online form or via email at email@example.com.
The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.