Category Archives: Publication Contracts

Spotlight on Book Publication Contracts: Open Access Success Stories

Posted October 22, 2018

Shelf with colorful books and Authors Alliance logo on blue background

Last week, we released a guide to Understanding and Negotiating Book Publication Contracts. Today, to celebrate Open Access Week, we’re featuring ways that authors can make their books open at different stages of the book’s life cycle and how to shape a publication contract to accommodate these options. As with our guide, we’re highlighting real success stories from authors who have successfully negotiated for terms in their publication contracts that enable them to meet their open access goals.

An initial consideration for authors is whether to publish with a dedicated open access publisher, such as Luminos (University of California Press’ open access publishing program for monographs), or to negotiate with a traditional publisher. Whether working with a dedicated open access publisher or negotiating with a traditional publisher, authors may be asked to contribute to the cost of publishing the book on open terms. However, funding is increasingly available for authors who want to make their books openly accessible. For example, TOME—Toward an Open Monograph Ecosystem—is an initiative in which participating universities provide funds to support the publication of open access monographs.

Negotiating to release a book on open terms with a traditional publisher may be difficult, but it’s not impossible. If you want to pitch your traditional publisher on open terms, it can help to make the case that your proposed non-exclusive arrangement is potentially just as lucrative for your publisher as an exclusive grant would be and to add sweeteners to the contract that make your proposal more enticing.

Success Story: Eric von Hippel, an economist at MIT and a member of the Authors Alliance advisory board, studies the economics of distributed and open innovation. Professor von Hippel wanted to “walk the walk” and make his previously published book, Sources of Innovation, freely available to the public online. So, he struck a deal with his publisher: If hard copy sales declined after he made his book freely available online, he would pay the publisher $1,000 as compensation for lost sales. If sales went up, the publisher would keep the profits and allow him to keep posting the free version. Happily, sales of printed copies went up, so he was able to keep the free version available online. Based on the success of this experiment, von Hippel was able to negotiate a non-exclusive license with his publisher for his next two books, Democratizing Innovation and Free Innovation.

Making a book openly accessible at the outset is not the only option. Publication contracts can be shaped in many ways to limit the scope of the grant of rights, including limits on the duration of the grant of rights to the publisher. By modifying the length of the grant, authors can get more control over how their works are used in the future because they regain their copyrights after the grant has expired. Some authors opt to limit the length of an exclusive grant of rights so that they can make their book openly available after that time passes.

Success Story: When she published her book The Eureka Myth: Creators, Innovators and Everyday Intellectual Property, Authors Alliance founding member Jessica Silbey negotiated for an innovative grant of rights to her publisher. Under the terms, her publisher obtained the exclusive right to publish the book for five years. After five years, Professor Silbey will automatically regain her copyrights and her publisher will keep a non-exclusive right to continue selling the book (under the same royalty terms). Although Silbey initially asked for the publisher’s exclusive rights to be limited to three years, she was persuaded by its legitimate business interest in having exclusive rights for the first five years. This arrangement enabled her publisher to fulfill its sales objectives, while also allowing Silbey to realize her goal of making The Eureka Myth widely available to readers in a Creative Commons-licensed online version after five years.

Another point in a book’s lifecycle at which open access may be a desirable option is after a book outlives its commercial life. A strong rights reversion clause that allows you to get your rights back when well-defined triggers are met can allow you to make your book openly accessible after its commercial life is over.

Success Story: Pamela Samuelson, a co-founder of Authors Alliance, wanted to make sure that she could get her rights back if her book was no longer selling well. The original version of her publication contract included a triggering condition that was based on the availability of English-language editions. Concerned that the mere availability of an ebook version of her book, regardless of sales, would mean that this triggering condition would never be met, Professor Samuelson negotiated for a change to the publisher’s standard triggering condition. After some initial resistance from the publisher and through persistent but respectful communication explaining her concerns, her reversion clause now is triggered if author earnings fall below a certain level. The clause now also directs the parties to discuss open access or similar distribution as an alternative to a full reversion of rights.

Finally, some authors who are determined to release their books under an open license may want to consider self-publishing.

Success Story: Authors Alliance founding members James Boyle and Jennifer Jenkins wanted their casebook, Intellectual Property: Law & The Information Society, to be available to as many law students as possible. For this reason, they decided to forgo traditional publishing and self-publish their book under a Creative Commons license, which allows students to download the book online for free. The decision has yielded unexpected benefits. For example, visually impaired students have told Professors Boyle and Jenkins that they appreciate using the open electronic text to produce a machine-generated audiobook in whatever format they choose.

For more information on open access, see Authors Alliance’s guide to Understanding Open Access: When, Why & How to Make Your Work Openly Accessible. For more information on understanding publication contracts and negotiating for author-friendly terms, see Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts.

Announcing the Authors Alliance Guide to Understanding and Negotiating Book Publication Contracts!

Posted October 15, 2018

We are delighted to share our brand-new guide to Understanding and Negotiating Book Publication Contracts.

Now available to the public (following a special pre-release to our Kickstarter backers), this new guide is the latest addition to our growing library of resources for authors, which also includes educational handbooks on rights reversion, open access, and fair use.

Copyright law and contract language are complex, even for attorneys and experts. Authors may be tempted to sign the first version of a publication contract that they receive, especially if negotiating seems complicated, intimidating, or risky. But there is a lot at stake for authors in a book deal, and it is well worth the effort to read the contract, understand its contents, and negotiate for favorable terms.

To that end, Understanding and Negotiating Book Publication Contracts identifies clauses that frequently appear in publishing contracts, explains in plain language what these terms (and typical variations) mean, and presents strategies for negotiating “author-friendly” versions of these clauses. When authors have more information about copyright and publication options for their works, they are better able to make and keep their works available in the ways they want.

The guide is designed to help authors to:

  • Learn about the basics of copyright law, and how copyright shapes the author-publisher relationship;
  • Evaluate the pros and cons of assigning and/or licensing their copyrights;
  • Understand the responsibilities of authors and publishers in preparing, designing, and marketing a book;
  • Clarify financial matters such as advances, royalties, and accounting statements;
  • Consider options for making their books available to readers in the short and long term;
  • Advocate and negotiate for contract terms that help them meet their creative and pragmatic goals;
  • And much more!

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“Every author should have this at hand.”
– Sidonie Smith, University of Michigan

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The guide is based on language contained in actual book contracts, and is further supported by surveys and in-depth interviews with authors, publishers, and literary agents and attorneys. These real-world scenarios help authors understand how to approach negotiation, what kinds of clauses to look for (and which to avoid), and how to engage in productive conversations with agents and publishers to ensure author-friendly contracts that align with their creative and pragmatic goals. The guide is designed to  empower authors to shape a publication contract that benefits them, their publishers, and readers, ultimately increasing the impact of their books.

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“This is a valuable guide that will help to demystify the contract
process for authors. It should encourage them to think through
and negotiate for the things that matter most to them,
and to trade off things that matter less. That will make the
negotiation process more satisfactory for the publisher as well.”

– Gita Manaktala, MIT Press

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We thank Rob Walker and the student attorneys at the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law for their help in researching and drafting the guide. These former clinic students include:

  • Katherine Bridge
  • Alfredo Diaz
  • Karen Graefin vom Hagen
  • Anna Kuksenkova
  • Henry Nikogosyan

We are also grateful to our Kickstarter backers for their support and to the publishers, literary agents and attorneys, authors, and expert reviewers who contributed to the guide.

You can download the guide and learn more about contracts and negotiation at our new Publication Contracts resource page. (And, for those who prefer to read Understanding and Negotiating Book Publication Contracts in print, we will release a softcover edition later this fall.)

Thanks To Our Donors (and an Update On Our Book Publication Contract Guide!)

Posted July 24, 2018
photo of a red pen lying on a paper with written edits

photo by 3844328 | CC0

Thanks to the support of our Kickstarter backers, our institutional co-sponsors, and the ongoing work of Rob Walker and the team at the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law, we are happy to announce that our forthcoming guide to Understanding Book Publication Contracts has reached a milestone!

But first, we would like to take the opportunity to publicly acknowledge and thank the individuals and institutions who have made this project possible through their donations. We encourage you to view the list of our supporters, and to join us in thanking all those who contributed so generously.

button with link to donor page

And now, we’re happy to report that progress on the Guide is going well (and on schedule!). A complete manuscript of the guide has been released to a group of expert reviewers, including publishers, agents, literary attorneys, and authors. Over the coming weeks, their comments and edits will be incorporated into the draft to create a thorough, accurate, and useful resource for authors who want to understand contract terms and negotiate wisely.

We are excited to share this forward progress, and will continue to provide updates as our work on the guide continues!

 

Kickstarter Success — and a Stretch Goal!

Posted June 11, 2018

We are thrilled to announce that we reached our goal on Kickstarter late last week! Thanks to each and every one of our backers, “Know Before You Sign on the Dotted Line” was a smashing success. We met our goal of $12,500—with time to spare.

photo by Howard Wilks | CC0

And if you haven’t pledged yet, there’s still time! Encouraged by the overwhelming generosity and support of our backers, we’re going to reach just a little higher with a “stretch goal” of $14,000. If we meet this new target, we’ll use these extra funds to provide 50 (free!) copies of Understanding Book Publication Contracts to libraries, writers’ groups, and other organizations for their reference collections.

You can help us get there by pledging and spreading the word to your networks. Then, if the stretch goal is met by the time our Kickstarter ends on June 15, we’ll ask our backers to recommend recipients of these complimentary guides via a post-project survey. We’ll tally the responses, and the organizations with the most mentions will receive free copies.

We are working hard to prepare Understanding Book Publication Contracts for release by the end of this year, and it’s inspiring to know that we have the financial resources to realize our vision of a beautifully-designed, high-quality guidebook that will benefit authors.

We will continue to post updates as work on the Guide progresses through the summer and fall.

 

2018: The Year of the Morality Clause

Posted June 6, 2018

We are grateful to professor, consultant, and author Jacqui Lipton for contributing this timely guest post on morality clauses in book publishing contracts.

Headshot of Jacqui LiptonRecent developments in the entertainment industry, notably the #MeToo movement, have led the entire country to focus more on questions of ethics and morality in business, educational, and media settings. The publishing industry, too, has been rocked by story after story of inappropriate behavior by big-name authors, including —to the great disappointment of many—a number of children’s authors. The Society of Children’s Book Writers and Illustrators earlier this year released an anti-harassment policy to address these concerns.

Publishing houses and agents have also faced this conundrum. Enter the morality clause. Increasing numbers of publishing houses and agents are now including such clauses in publishing and agenting contracts, requiring their authors to comply with acceptable professional standards and providing for the possibility of termination of the contractual relationship if the author fails to conduct himself or herself appropriately.

There are several limitations to these clauses, other than as a device to draw parties’ attention to current challenges in the industry. For example, it’s incredibly difficult to draft meaningful contractual clauses that explain what conduct will be regarded as immoral or unacceptable other than in the vaguest possible terms: such as “standards reasonably accepted in the industry,” etc. These clauses by necessity will be vague and subjective and difficult to interpret should they ever be litigated in court.

Additionally, there’s the question of whether these clauses are necessary as a matter of law, whether they add anything meaningful to what’s already in the contract. It’s always been the case in the publishing world that agents can generally terminate a relationship with a client (or vice versa) at will, subject to ongoing financial arrangements with respect to projects already sold by the agent. Publishers, too, generally reserve the right to reject any manuscript that doesn’t meet their standards, and those standards, by nature, tend also to be very subjective.

Of course, many publication contracts may be silent on actual “conduct” of an author as opposed to “content” of the manuscript. However, it’s arguably not particularly difficult for a publisher to cancel a publication agreement by referring to the content of the manuscript even if the underlying concern may be more with the conduct of the author. A case in point is the current litigation between Milo Yiannopoulos and Simon & Schuster. Simon & Schuster cancelled Yiannopoulos’s book contract after he made controversial comments on pedophilia, but argued that the basis for their actions was that the manuscript itself was unacceptable (see Andrew Albanese, Can Milo Yiannopoulos Win His Lawsuit Against S&S?, July 14, 2017, Publisher’s Weekly, available here.) The case is proceeding in New York and may provide some guidance about how effectively existing contractual clauses can be used to address these types of situations, even in the absence of a “morality clause” in a particular contract.

So where does that leave morality clauses? Do we need them? Arguably no, as a matter of law, but possibly yes as a reminder to those signing contracts that publishing is an industry whose participants should adhere to moral and ethical standards of conduct. Should authors need such reminders in this day and age? Theoretically no, but in practice, in the current political and cultural climate, sadly it may be a good idea.

Jacqui Lipton, LL.B. (Hons), LL.M., M.F.A. (fiction), Ph.D. is a professor of law, consultant and author. She is the founder of Authography LLC, a company dedicated to assisting authors and artists with business and legal challenges. She is a regular columnist on legal, business, and associated ethical issues for a number of industry publications and blogs. She’s also the author of the forthcoming Law & Authors: A Legal Handbook for Writers (University of California Press). You can find her online at jdlipton.com.

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Speaking of publishing contracts…we’re on the homestretch of “Know Before You Sign on the Dotted Line,” a Kickstarter campaign to help fund the production of our upcoming Guide to Book Publication Contracts. As of today, we’re almost 90% of the way to our goal, so if you haven’t pledged yet, please do so before the campaign ends on June 15!

Meet the Contracts Guide Team!

Posted May 29, 2018

We at Authors Alliance are hard at work on a new guide to Understanding Book Publication Contracts, the fourth volume in our series of educational handbooks that will empower authors to make savvy decisions when negotiating their contracts.

Work on the guide is going smoothly, and it would not have been possible without two standout members of the Samuelson Law, Technology, & Public Policy Clinic at the UC Berkeley School of Law: Karen Hagen and Anna Kuksenkova. Karen and Anna were instrumental in gathering information from authors through surveys and interviews, and they contributed substantially to drafting sections of the guide. We recently turned the tables and interviewed them to learn more about their experience with the project and about their plans now that they are newly-minted JDs.

Karen and Anna conducting their survey

Karen and Anna interview an author at the AWP conference in March 2018

Authors Alliance: There are lots of opportunities to take on a variety of projects in law school. Why did you decide to work on the Guide to Book Publication Contracts?

Anna Kuksenkova: I’ve always been a huge bookworm. I enjoy sci-fi and fantasy especially, and have even thought about writing my own novel someday. As a law student, my focus and interest is in intellectual property law, specifically copyright. This was such a neat opportunity to work across both these interests.

Karen Hagen: First of all, because I love to read. Hopefully, the Guide will make negotiating publication contracts for authors easier and less scary so that they have more time for writing great books that I, in turn, will read. Furthermore, I loved the challenge of writing for a non-legal audience for a change.

AuAll: What was your favorite part about working on the Guide?

KH: The interviews with the authors! They made our work on the guide meaningful and a lot of fun.

AK: Speaking to real authors! I got to interview some people I’d already heard of and admired, and others I’d never heard of that I was so excited to have a chance to meet. I’m really glad we were able to talk directly to the audience we were writing the book for and tailor our advice to what they wanted and needed in a guide like this. Plus I couldn’t believe some of their stories!

AuAll: Tell us about a key point and/or something surprising that you learned.

KH: A lot of authors believe they don’t have to know about contracts if they have an agent. Of course, having an agent can take a huge load of your shoulders, but how can you as an author discuss with our tell your agent what to negotiate for if you have no idea what publication contracts are all about?

AK: I think a lot of the authors we spoke to cared about their copyright in the book but didn’t have a good idea of what that means in practice. Sometimes, publishers will ask for all the rights to a work, but register the copyright in the author’s name and put the © on the first page next to the author’s name. But that’s not really retaining your copyright, because you’ve still signed away your exclusive rights: the right to copy, distribute, create adaptations, etc. That’s what copyright really is.

AuAll: If you had just one takeaway for authors based on your work, what would it be?

AK: Don’t be afraid to ask! For every time we’ve heard “you’ll never get X,” even from editors, we had another example of someone who HAD gotten X. I’ve never heard of anyone losing a book deal because they merely asked politely to change a term. If you’re sitting at that table, they already want you. It may not feel like you have a lot of power, but you have more than you think.

KH: A lot of the time, the people you’ll negotiate with as an author haven’t really gotten the ins and outs of publication contracts themselves. So simply being knowledgeable about contracts is a big advantage.

AuAll: Now that you’ve graduated, what are your future career plans?

KH: Before eventually moving back to Germany and working as an IP lawyer, I will intern at a Silicon Valley law firm working on technology transactions.

AK: I’m currently studying for the California bar exam and looking for a work opportunity, here or in D.C. I’m excited to see where I go next.

AuAll: Tell us a little something about yourself: What do you love to do when you’re not working on legal issues? Favorite things about Berkeley and the Bay Area? What’s the first thing you’re going to do after taking the bar exam?

AK: When I’m not working, I love quiet evenings in, cuddling with my cat, reading or watching movies. Sometimes I do collaborative writing with my friends back on the east coast, short stories and coda to comics and TV, things like that. I’ve also been showing my grandma, who I invited to come live with me for a little while, around the east bay. I love how much diversity there is here, not only people, but in access to different cultures, too. We’re Russian and she recently emigrated here, and I’ve found so many resources in this area for her, an adult ESL program and Russian community. I just think the culture here is great, even if the traffic and cost of housing are tough to swallow.

The second I’m done with the bar exam I’m heading south to the nearest warm, sunny beach. I think I’m just going to nap there for a week straight!

KH: I love to explore and travel. One of my favorite places in the Bay Area, particularly in the spring, is Point Reyes. Every time I went I saw amazing wildlife: otters, coyotes, barn owls, deer, elk, and whales. Other than that, I love to read. That’s why the first thing I’ll certainly do after taking the bar exam is dive into a page-turning novel. I already have one in mind that one of our interviewees recommended!

In case you haven’t heard, we have launched “Know Before You Sign on the Dotted Line,” a Kickstarter campaign to help fund the production of the Guide to Book Publication Contracts. As of today, we’re almost 75% of the way to our goal, so if you haven’t pledged yet, please do so before the campaign ends on June 15!

We Have Liftoff! Support our Kickstarter Campaign Today

Posted May 15, 2018

photo by Kyle Hinkson on unsplash | CC0

Up, up, and away!

Announcing the launch of “Know Before You Sign on the Dotted Line”—our first-ever Kickstarter campaign! We’ve created this crowdfunding project to support the production of our latest educational resource, a guide to Understanding Book Publication Contracts.

Signing a contract is a key step in an author’s career, but feedback from our members tells us that many authors are not well-served by their contract terms. To address this need, we’re creating a new guide that will empower authors to:

  • Understand common clauses in their book contracts
  • Identify which clauses to push for, and which to avoid
  • Have productive conversations with agents, attorneys, and publishers
  • Meet their creative and pragmatic goals through effective negotiation
  • And more!

Check out our project video and Kickstarter page for more details about the guide and to learn how your support will help us reach the finish line. Please join our community today by making a pledge and helping us to spread the word!

 

AWP Authors Inform Our Upcoming Guide to Publication Contracts

Posted March 22, 2018
Karen and Anna conducting their survey

An AWP attendee shares her contract story with Karen and Anna

Earlier this month, Authors Alliance attended the Association of Writers and Writing Programs (AWP) conference in Tampa, Florida. We presented a panel discussion on copyright basics with LeEtta Schmidt of the University of South Florida and Dave Hansen of Duke University, and staffed an information table at the conference bookfair. We were joined by UC Berkeley law students Karen Hagen and Anna Kuksenkova, who surveyed conference attendees in order to gather stories of authors’ real-world experiences with publication contracts. Some of those examples—from negotiation success stories to lessons learned the hard way—will be incorporated into our forthcoming guide to publication contracts.

Photo of Anna and Karen gathering survey dataThe survey results are still preliminary, but they revealed some key points that will be addressed in the guide. A number of authors shared successes and regrets about publication contract clauses relating to wide range of issues including pricing, cover design, royalties, audio rights, translations, and marketing. These considerations, and more, will be addressed in our forthcoming guide and will inform our tips for negotiating for author-friendly terms.

We are grateful to Karen and Anna for designing and administering the author survey and for their thoughtful engagement with authors at the conference. The final version of the contracts handbook will be even more useful and relevant thanks to their efforts!

 

Model Publishing Contract Features Author-Friendly Terms for Open Access Scholarship

Posted December 14, 2017

The University of Michigan and Emory University have teamed up to create a Model Publishing Contract for Digital Scholarship designed to aid in the publication of long-form digital scholarship according to open access principles. It’s a terrific new resource for authors and publishers alike!

Developed by a team of library and university press professionals, the model contract takes into account the needs of a variety of stakeholders. The contract is shorter and easier to understand than typical publishing contracts, and it offers authors more rights in their own work, while still allowing publishers sufficient rights for commercial uses and sales. Associated documents include:

  • An introduction to the project
  • A guide to using the model documents
  • A customizable contract template in Word format
  • A sample letter for requesting permission to create and distribute digital copies of a copyright owner’s work
  • A glossary of legal terms

All of the documents are available online under a CC0 license, so they can be tailored to meet an author’s or institution’s specific needs. Even for those not currently negotiating a publishing agreement, the model contract provides useful information and sample language demonstrating author-friendly terms.

The model publishing contract is a great complement to one of our current projects here at Authors Alliance. We’re hard at work on a guide to understanding publication contracts—the fourth volume in our series of educational handbooks, due to be released in 2018. Our guide will explain various contractual terms from an authors’ rights perspective. We recommend the model contract project as an excellent example of a fair and workable document with a special emphasis on open access scholarship.