On Writing a Book, Pt. 5 - The Contract
After the initial discussions about the book’s outline which I described in part 2 of this series were underway, talks about the actual writing contract started. Naturally, neither Udo nor I had any experience with publishing companies and the contracts between them and their authors. Add to that the fact that we are both from Germany and had had little to no experience with English legal stuff of any kind - apart from the usual 5000 pages EULAs you just “agree to” by clicking the “go away” button as quickly as possible - and you will probably understand that we were a little nervous about what we should expect.
On Feb, 27th 2009 we were sent the first draft of our contracts as PDFs via email. It was twelve pages long and was structured as follows.
First, there was a definition of terms to be used throughout the document, clarifying what terms like “Editors”, “Electronic Form”, “Program”, “Rights” and so on were supposed to be understood as in context of the contract.
After that followed a series of paragraphs covering different aspects of the relationship between author and the publishing company. Contained therein were regulations about the writing schedule, copyright, what would happen in case the schedule was not met, about the process of editing, corrections and proofreading, the distribution of the finished book, warranties and payment terms. Moreover there were items about revised later editions of the book, marketing and support, regulations concerning what rights the author would have regarding using materials from the book and in which contexts and how many copies the author would receive for free after publication.
These descriptions were about 7 pages long. All this text seemed to be very much a standard template used for every book of that publisher.
After that followed a more individual part, detailing the exact names and addresses of the contract partners, amount and schedule of advance payments and later royalties depending on book sales and the terms of payment. Moreover the schedule for all the chapters was laid down with due dates for each of them. Since we were writing as co-authors, my contract mentioned only the chapters Udo and I had agreed on to be written by me, his contract naturally covered the other half.
Finally the format we would send our chapters in would be defined as either Microsoft Word Format or Open Office ODT. Graphics were expected in either TIFF or EPS as line drawing, screenshots as PNG or JPG.
Udo and I went through our respective PDFs on our own at first. Once we were through we sat together and compared notes and questions. There were quite a few points we were immediately sure and in agreement about - even though it was our first publishing contract - that could not be accepted from our side. Not yet knowing how much of a problem changing those would be for the publisher we agreed unanimously that should they not be possible to change we would not go ahead and abandon the whole project.
I will not go into extensive detail here, but let me just mention some parts we were not willing to sign as they were:
- a phrase about liability in case the author(s) were to miss the schedule
- a phrase which would make the author(s) responsible for anything in the book being “unlawful”, or “infringing on the copyrights of any third party”
- a phrase coming down to a guarantee that nothing written in the book would cause any data loss or other damage to users’ data as a result of following instructions in the book.
- a phrase that would require the author(s) to fully indemnify the Publisher fully against all losses, damages and costs, including any sums paid to settle claims, arising out of the breach of one of those warranties.
These terms would have - in the worst case - meant an incalculable legal risk to us. We suggested adding “to the best of the authors’ knowledge” as a limiting clause to all of the above items.
The only other “major” issue for us was an early termination clause from the authors’ side. The original contract proposal only had a provision for the publishing company to terminate the contract for certain reasons before the book would be finished. No such regulations was contained in the contract, for example in case of a severe illness or other personal events that would prohibit us from finishing up the writing.
All other terms were mostly fine with us, even though we, of course, had several detail questions about individual pieces. Those were all answered comprehensively and mostly met what we already had expected.
We offered to waive any advance payments in return for the addition of an early termination option from our side, assuming that this might be a problem for the publisher otherwise. Moreover we were looking at the whole project mostly from a curiosity and “new experience” type of view. None of us had any expectations or hopes to earn a lot of money, so we were quite ready to be paid on after actual copies of the finished book had been sold.
We had feared that we would be getting into some sort of lenghty discussion with the publisher about the changes we wanted to make to the contract, assuming that the initial version they had sent us was something that had been carefully designed and worked out by their legal team and was not subject to change very much.
Much to our surprise, however, all the changes we requested were applied without any further ado. We received a new version of the contract some time after we had sent out our feedback. In that new revision the first issue mentioned in the list above (liabilities in case of schedule missed) was deleted completely - we had merely asked for a clarification about what would be considered a “miss”.
The “to the best of the author’s knowledge” clause was added without further discussion to all the paragraphs we had asked for. Only in one case had there been a little misunderstanding as to how we wanted a particular sentence to be phrased, but that was fixed very quickly, too.
Once we had the proposed final contract in our hands, we let Udo’s sister, who is a lawyer, have another look at it and make sure we had not missed anything important. Once she gave her ok, we could sign the paper copies and send them back to the UK, starting the actual writing.
After the fact
Apparently the first contract draft was not as binding from the publisher’s side, as we had initially expected. We were somewhat nervous about the amount of discussion we would get ourselved into when proposing changes to it, that is why we were willing to give up the advance payments. Turns out that would not have been necessary at all. Some time after we had finished the book I heard - by pure coincidence - several people in podcasts and on the net claiming that one should never ever accept the first draft of any author contract. Judging from the very first and only one I read and having statements like this from experienced authors, I tend to agree :)
So if you are currently - or in the future - in contact with a publisher, I suggest you take a close look at their proposed contract and contact them about anything that is unclear. Ask questions and do not hesitate to demand changes whereever you do not like something about it or consider it too one-sided. I do not mean you should be needlessly aggressive, but in the end this is about what you will be investing a considerable amount of time and work into for the next several months, if not more, so I recommend being frank and not shy when it comes to the legal document covering that.