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There are few authors who wouldn’t correct as many spelling, typographical and grammatical mistakes as possible in their work before placing it in the hands of their readers.
One writer I know terminated his publishing contract just before his book was to be published when the publisher would not allow the author to proofread the final galley before the book went to press. Even more disturbing was that the publishing contract gave the author the right to perform a final review of the work. Nevertheless, the publisher arbitrarily chose to prevent the author from exercising his contractual rights.
When you’re so close to the finish line, termination is a drastic step and few publishing contracts give authors that option, but this author had the opportunity and took it.
If you’re a serious writer–or publisher–you can appreciate that proofreading your work immediately prior to publication is a vital issue. Words are an author’s tools and his control over those words—their meaning, proper spelling and use—are the building blocks for his credibility.
Wouldn’t any sensible publisher want to reduce the number of errors by allowing the author—and at no additional cost to the publisher—to proof the final galley? Apparently not.
Recently, I reviewed a publishing contract that stated the publisher “may” return the final copy to the author for one last proof. Although I changed “may” to “shall,” I suspect many authors have signed that same contract not realizing that they had no final say in correcting any typographical errors that crept into their work during the editing and layout process.
In most publishing contracts, publishers customarily reserve the right to control what they describe as “format” and “style.” Most authors fail to realize that the average publisher’s definition of format and style has nothing to do with skilled editorial input or supervision. Surprisingly, the courts have done nothing to protect authors in this regard.
Several years ago, one federal district court held that an author cannot recover damages for the failure of a publisher to publish a book free of typographical errors. Although few of us expect a book to be totally free of such errors, what was most disconcerting was the court’s reasoning.
The court held that readers understand that such mistakes are the result of inadequate editing on the part of the publisher. An author’s reputation will not be damaged by a publisher’s poor performance, the court concluded, because readers supposedly know that mistakes are not the author’s responsibility. As dubious as you or I might find this reasoning, it provides an inept publisher with a legal defense.
When negotiating your next contract, one of your first priorities is to include a contractual provision giving you the right to review your manuscript’s final galley, i.e., you “shall” review it. A savvy publisher is unlikely to resist your proofreading request. If they do, think carefully about whether this is the publisher for you.
Recently, an acquaintance of mine finished a six-book non-fiction series of interviews and published it on Amazon. It was a tremendous achievement. His covers were informative and interesting and his titles aroused curiosity. He had transcribed and edited many lively and provocative interviews. But as we talked, I suddenly realized there was one problem.
He had no plan for selling the books.
In publishing, that plan is called a book proposal and an author prepares it before he writes the book. For decades, agents and publishers asked for book proposals in order to know to whom, why and how the author expected to sell a future non-fiction work. A book proposal calls on the author to identify her readers or “target market” in real numbers and explain where those readers are as well as why they will want to buy her book.
Not surprisingly, on the basis of a good book proposal, an agent often persuades a publisher to pay an author the advance the author needs to write the book.
In 2011, I recall seeing a projection that four thousand books a day would be published. With that kind of competition, writing well and having a unique idea or presentation is just the first step in creating a work that sells. Bottom line, a book’s success is still measured by the number of copies sold, and those sales seldom occur without a well-executed marketing plan. Every serious non-fiction author, whether they seek a traditional publishing contract or intend to self-publish, should have a well-organized and researched book proposal that includes a marketing map for their work.
In the business world, we take it for granted that entrepreneurs spend months and sometimes years to create a business plan that will lead to products or services that interest customers and perhaps investors. But they don’t do it in a vacuum. Many take classes, read extensively, and consult with experts to develop the best plan possible.
Today’s serious non-fiction authors are also in business–the business of writing, publishing and marketing books. The first question an author must ask himself about his book is the same question an investor asks the new entrepreneur—who will buy and why? It should be no surprise that money and time spent on instruction, advice or research that answers that question for the author is money well spent for the future.
According to the New York Times, some 81% of the US population harbors at least the thought of writing a book. A few of those people will actually write a book and fewer still will have done a substantive book proposal with a marketing plan.
What about you?
After passing the California Bar Exam, I attended the swearing-in ceremony before the California Supreme Court. In a speech to the crowd, one of the Supreme Court justices advised that the most common mistake made by attorneys was to not return their clients’ phone calls. This seemed especially odd to me since attorneys need clients to make a living. But over the years, I’ve discovered that other professionals also make mistakes that are hard to understand.
While attorneys ignore their clients’ phone calls, authors, whose key tools are words, seldom understand or make the effort to understand the agency and publishing contracts they sign. As important as words are to authors, they fail to realize that a contract is often nothing less than a storyline for their writing and publishing future.
What’s the big deal, you might ask? Just read the contract.
But what if reading your agency or publishing contract doesn’t guarantee understanding your contract?
The truth is that even educated people in various walks of life cannot read and understand a contract without some legal background. Why? Because most such contracts are prepared by attorneys who write in what some call “legalese,” a language designed by lawyers for other lawyers including judges. For anyone who is accustomed to the ordinary meaning of words, reading legalese can be a frustrating experience.
Remember, too, that the agent or publisher has paid an attorney to prepare the contract. More likely than not, that lawyer’s version of a “standard” agency or publishing contract is designed to favor the person who is paying the lawyer and not the author. When it’s time to decide whether or not to sign or negotiate the terms further, why should you deny yourself the same legal edge as the other party?
When many authors are presented with a pen and a dotted line, they claim that they can’t afford an attorney. This is not a good excuse.
Think about it.
You’ve spent months if not years writing your book, stories or articles, paying for writing seminars and editors, and sacrificing time with friends and family. You might have worked fewer hours at your day job and earned less money for an extended period in order to finish one or more manuscripts. Even if you hired a ghostwriter, you likely made many of the same personal and economic sacrifices. If you could put a price on what you’ve invested in your writing, it could amount to many thousands of dollars.
When an agent or publisher has offered you a contract, you have an opportunity to earn back your investment and, hopefully, more. You simply can’t afford not to engage an attorney.
Although legal fees can seem daunting, you have options. Most literary attorneys charge on an hourly basis but some will accept a flat fee if you ask for one. Many will also gladly accept credit cards or monthly payments.
Do whatever you can to retain an experienced literary attorney–your publishing future deserves it.
When I see a publishing contract with a grant to the publisher of all forms of eBooks for the duration of the work’s copyright, I see the potential for a disappointed author with a less than fully exploited work.
The grant of rights is usually located within the first couple of paragraphs in your publishing agreement. The grant states that the author will allow the publisher to publish the work (i.e., the manuscript) in certain forms around the world in English. It might also state that the publisher shall exercise this right for the life of the copyright—currently that amounts to the author’s remaining lifetime plus seventy years. This is often referred to as a grant of “primary rights.”
References to electronic rights, eBooks, digital versions or digital publishing in the grant of primary rights can be minefield for even a contract-savvy author. In an agreement I reviewed recently, eBook rights were said to include five different forms of eBook publication–verbatim, interactive, multimedia, apps, and enhanced electronic versions. The publisher then wrapped these rights up with a ribbon that was meant to include the electronic universe in its entirety. It read: “the publisher shall control any display methods for reading or listening that are now known or yet to be discovered.” Nowhere in the contract were there any definitions of the five eBook forms or any limits on “any display methods for reading or listening.”
This leaves the author with two problems.
First, there is no one set of definitions for the various forms eBooks or electronic publishing might take; every publisher is free to define these terms as they please. Years after signing the contract, this can lead to confusion, arguments and lawsuits as to what rights the publisher intended to exploit versus those the author intended to keep.
Second, anyone associated with the publishing business for any length of time soon realizes that publishers have a big appetite for rights to your work but no real hunger for the ongoing exploitation of the rights they control. Years ago, when a copyright term lasted for twenty-eight years, this might not have been onerous. Now, however, a publisher’s control can extend for decades after an author’s demise and seriously limit the opportunity to re-publish an older work in a new form of eBook publishing.
Be aware that whether you, an attorney or your literary agent negotiates your contract, three questions must be asked of the publisher when it comes to publishing eBooks.
- First, how does the publisher define each eBook form in which they want to reserve the right to publish?
Request a list of the forms the publisher wants to exploit and a specific definition for each form. Does the publisher only want the right to publish the book in a verbatim eBook form? The verbatim form usually amounts to an electronic version of your work that replicates a print version. Though verbatim rights are now commonly granted to the publisher, it’s still wise to confirm that you and the publisher agree on this simple definition.
Verbatim aside, which of the other eBook forms requested involve the addition of music, voice, audio clips, video, animation, hyperlinks, photographs, illustrations or graphics? Does the publisher want the right to alter the text so that the work can be used for interactive purposes? Do you retain the right to approve the final eBook version of your work or are you only a consultant?
Once you have this information, be sure that the acceptable eBook forms and their definitions are in the contract as well as your role, if any, in producing the final product. Attempt to delete or limit any vaguely defined e-grants extending to all known and unknown reading technologies.
- Second, does the publisher have any experience publishing in the eBook forms that are acceptable to you?
Do your research. If the publisher wants to publish your work in some form of multimedia, for example, you need to know whether they publish other works in that form, what the results look and sound like, and what efforts they made to market the work in that form. Perhaps the publisher has exploited only children’s books in a multimedia format. If you write mysteries, it might not make sense to grant the publisher the right to exploit your work in a multimedia format. At a later date, if the publisher starts to exploit mysteries for multimedia, you can always request to contract for that exploitation.
- Third, is the publisher willing to exploit your eBook rights within a certain period of time?
Come to an opinion as to whether the publisher is committed to producing your work in the forms they want you to grant. If the publisher has never published an interactive eBook, for example, and you’re not convinced they will in the foreseeable future, give the publisher no more than three to five years to exploit your work in that form. If the publisher fails to do so within the allowed time, then the right to publish your work in that form should automatically revert to you.
Contract language matters. Watch out for provisions that do not clearly define the exact eBook form being requested. Publishers are fully aware that new reading technologies are constantly being developed, but that does not mean they’re always ready to exploit them.
If your publisher fails to exploit electronic publication for your work, be sure you have the contractual right to turn that failure into your opportunity.