Publishing Contracts: Part 3 by Dyanne Davis

Welcome to Part 3 of the Publishing Contracts Series.

Before you begin reading the clauses listed below that I think you should try to have in your contract with publisher remember that before writing became my career I was a nurse not a lawyer.  That little statement is my disclaimer.  The information I’ve listed below fall under the category of Dyanne’s personal opinion. But Dyanne has good reasons for the opinion.  I’m going to no doubt repeat this but don’t worry it bears repeating.  Please, have a lawyer read over any contracts you’re presented with.  Then ask the lawyer to try and get some or all of the clauses listed below.  If you have an agent and the clauses below aren’t in your contract ask your agent to negotiate them in.  She may be able to get some or all but it won’t hurt  to ask.  Good Luck.  I hope you get them all.

 

VERY IMPORTANT CONTRACT CLAUSES

 

Term of Contract

 Contract shall be in force from the date it is signed by all parties until four (4) years from the actual release date 

I can not begin to tell you how important it is for you to have an end day to any publisher holding your rights, that goes for print and epubs.  The number of years may vary but you need to know how long the publisher will hold your rights.

Author’s name or Pseudonym

 The Author has the exclusive right to the use of his/her name or pseudonym listed as the author in connection with this Work. Publisher cannot prevent Author from using the same name or pseudonym for any other publisher or for any other book genre. Publisher will have a non-exclusive right to use Author’s name, likeness, and biographical material for the purposes of advertising, publishing and promoting the Work itself.

 Please do not make the mistake of assuming that since you wrote the book and either was given the name shortly after birth or that you came up with it, that it belongs to you.  We all know that a few short years ago Harlequin writers did not own their own names.  I don’t believe that’s a liable statement that I made since it’s true and known. Just BE AWARE.

Ownership of Characters

 Except as allowed under the sections of this agreement governing promotion of the work, Author owns the characters and controls their use in sequels or series books, whether published by Publisher or another Publisher. Publisher will have a non-exclusive right to use the title, all the material, including characters in the Work, for the purpose of advertising, publishing and promoting the Work.

Nothing in this agreement shall obligate the Author to submit any additional, unrelated works to Publisher.

 This is perhaps the most important clause to have in your contract.  I don’t care if you’re not planning on doing a series.  You never know what can happen in your life and when some secondary character might start talking and demand their story.  Better safe than sorry.  Listen, I’m telling you this because recently this very thing played a major part in my career.  

The next part that talks to Insolvency of Publishers has to do with that epubs has become a booming business and several publishers have not been able to remain in the industry.  You need to know what will happen to your rights if something happens to your publisher.  This clause does not exclude print publishers.  You really need to be aware of these things and please, please, please have an intellectual property attorney look over your contract if you don’t have an agent.  It will cost a couple hundred  dollars but will be well worth the money you spend.

 Insolvency of Publisher, Sale of Publisher, Reversion of Rights

 Insolvency: If the Publisher files for protection under the Bankruptcy Laws, all rights delineated in Section I shall immediately revert to the Author. If the bankruptcy filing involves reorganization and Publisher continues to operate during the reorganization, Author and Publisher may agree in writing to continue this agreement under the same or revised terms.

If the Publisher suspends operations for a period of sixty (60) days or more, other than a temporary suspension for technical difficulties such as a loss of Web Server, all rights delineated in Section I shall immediately revert to the Author. If the Publisher’s operations are ordered suspended by any governmental or police entity, or by Injunction or Restraining Order, all rights shall immediately revert to the author, If the suspension is lifted and operation resume, Author and Publisher may agree in writing to continue this agreement under the same or revised terms.

If the Publisher sells its assets to another publisher who does or plans to market and promote books of the type and genre of the Work, the successor publisher will be bound, as a minimum, to the same terms delineated in this agreement. If the successor publisher does not or does not plan to market and promote books of the type and genre, then all rights will revert back to the author immediately upon completion of the sale to the successor publisher.

General Reversion of Rights: Upon expiration of this agreement, all rights delineated in Section I immediately revert to the Author unless an agreement to renew or extend this agreement is reached.

 If, within 60 days of the release of the first format of those delineated in Section I, the Publisher has taken no action toward exercising any of the other rights; (such action may include but not be limited to assigning an ISBN, format/layout preparations, setting an estimated release date, producing or contracting for production of salable copies of the Work in the form, advertising the additional format with intention to market it), the Author may withdraw that or those additional rights by sending a written notice of withdrawal by traceable means. Withdrawal of one or more of these rights will not automatically nullify the remainder of the agreement regarding those rights the Publisher has already executed and placed in the stream of commerce. Reversion of withdrawn rights shall come into effect thirty (30) days after Publisher receives the notice of withdrawal unless satisfactory proof of action execution of those rights its presented to the Author by Publisher. 

Disclosure of Information

 The Author acknowledges the list of Publisher’s customers, vendors, authors and editors is a valuable, special, and unique asset of the Publisher’s business. The Author shall not, during and for a period of one year after the term of this contract, disclose all or any part of the said proprietary information including: confidential names of authors, editors or artists, vendors, marketing plans, projects in development, confidential e-mails including e-mails through business groups, to any person, firm, e-mail list, group list, personal or private lists, blogs, corporation, association or other entity for any reason or purpose. In the event of the Author’s breach or threatened breach of this paragraph, Publisher shall be entitled to seek a preliminary restraining order and an injunction restraining and enjoining the author from disclosing all or any part of the Publisher’s said confidential information and from rendering any services to any person, firm, corporation, association, or other entity to whom all or any part of such confidential information has been, or is threatened to be, disclosed.  In addition or in lieu of the above, Publisher may pursue all other remedies available to the Publisher for such breach or threatened breach, including the recovery of damages from the Author. 

Considering all the information I’m providing comes from actual contracts and in some manner state what I’m not supposed to do,  I can’t stress on you enough that contracts are confidential.  I’ve deleted relevant publisher’s information and though I consider this general information they may not consider it that way.  Still, I think this information is important enough for you to have and until I’m told to cease and desist I will continue providing things I think writers should know.   If your contracts calls for you to keep something confidential  DO SO!! It goes without saying that I would never divulge anything but general information.