Beware of Hidden Dangers in Short-Form Publishing Contracts

Authors have a lot to watch out for when reading a publishing contract, but one of the most common dangers is actually invisible: the protections typically missing from short-form contracts.

Standard publishing contracts run 10-30 pages, in little type, with wording that ranges from “difficult” to “possibly penned in Hieroglyphs.” Most authors don't know how to approach the dense legalese, or find it uncomfortable and intimidating.

By contrast, many authors see a three-page form and think “Hooray! A contract that makes sense!”

Beware: that way be dragons.

Publishing contracts are long because they address a wide range of legal rights and issues. “Copyright” is actually a group of rights, and each of them must be addressed in a proper contract. Failure to deal with issues creates dangerous ambiguities and loopholes, most of which cut in the publisher’s favor in short-form contracts. (This is because the short-form contract deals with rights as a bundle rather than separating them, and often they simply license the entire bundle to the publisher.)

Sometimes, publishers try to claim their short-form contracts offer authors a “better deal” than “traditional, complex forms.”

Again, beware.

These shorter contracts are often missing a number of critical provisions that authors don’t realize they need to include for their own protection. When a problem arises, the author goes to the contract, only to find that the “friendly short form” doesn’t address that issue (or, when it does, the publisher prevails).

Here’s a list of some important provisions many short-form contracts don’t include: 

1.  Proper reservations of subsidiary rights to the author. The shorter the contract, the more likely it is to simply grant the publisher “all rights” in and to the work “in all forms, formats, and territories.” Publishers don’t need “all rights” to a work. Most publishers need print, ebook, and sometimes serial rights. Everything else is open for negotiation. At a minimum, those other rights (often called “subsidiary rights”) should be separately listed and addressed in the contract language. One-size-fits-all rights language is not the best option for the author, and something authors should be watching for with an eagle eye. 

2. Author termination rights. Publishing contracts often last “for the life of copyright,” but that’s actually only the contract term if the contract isn’t breached or terminated earlier. Good contracts give the author several ways to escape if things go badly, including the right to terminate (and revert all rights) if the publisher fails to publish within a stated time, goes out of business, breaches the contract, or fails to sell at least a specified minimum number of royalty-bearing copies in a stated period of time. (Each of these termination rights often appears in a different paragraph--look for all of them in your contract!) Short form contracts generally fall woefully short on author termination rights. 

3. Sales Statements. Each royalty check should be accompanied by a sales statement detailing  relevant information about the number and format of books sold and returned during the sales period, as well as any reserves being held against future returns. Not surprisingly, short-form contracts often skip over sales statements—and unwary authors often forget the importance of receiving this documentation until the first (unexplained) royalty check comes in...or doesn't.

4. Audit rights. The author needs the right to audit the publisher’s books and records relating to the work at least once in every calendar year. Again, this is often missing in short-form deals.

5. “Out of Print” status tied to royalty-bearing sales. Short-form contracts often omit the author’s “out of print” termination rights altogether ("whoops…") or tie “out of print” status to “availability” – which usually keeps the work in print as long as an ebook version is offered anywhere for sale.  

Note: this list is not exhaustive. There are other important provisions which short-form contracts often omit, but this list is enough to demonstrate the dangers of short-form contracts. Sometimes, publishers try to claim these clauses “aren’t needed,” or that authors can trust them to “do the right thing.”

SHENANIGANS.

It’s true that publishers and authors should be able to trust one another. However, it’s also true that good fences make good neighbors, and good contracts make for good partnerships—in publishing, as elsewhere. Contract law says that a promise which isn’t contained in the contract does not exist as part of the deal. (There are exceptions, but you should never rely on exceptions.)

Never, ever sign a publishing contract—especially not a “short-form” deal—without obtaining a professional opinion from an agent or a publishing lawyer, to ensure the contract offers adequate protection for your legal rights.

 

Susan Spann
Susan Spann is a California publishing attorney and the author of the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI (Shinobi Mystery #2), released in 2014, and the third installment, FLASK OF THE DRUNKEN MASTER, released on July 14, 2015. Susan is honored to be the 2015 RMFW Writer of the Year, and when not writing or practicing law, she raises seahorses and rare corals in her marine aquarium.You can find her at her website, on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

6 thoughts on “Beware of Hidden Dangers in Short-Form Publishing Contracts

  1. I read every single word, Susan. You are so good to us to share this information and warn us against being so thrilled to get a contract that we throw caution to the wind and sign away rights that we’ll later regret. –not that *I* would get so emotionally reckless and do such a thing.

  2. Susan, you’re posts are always SOOOO informative. I wish I had known some of this with the contract I had. I save all of your posts for “the day I need them” which I hope is sometime soon.

  3. I’ve seen a few of these bad contracts over the years and not once have I ever felt bad about saying, “Thanks, but no thanks.” Also never had an issue telling them why I would never sign something that handed over all my rights for the life of the copyright, and why contracts need expiration dates and rights reversion. Luckily the first (and last) bad contract I signed, the publisher broke his part of the deal so badly, getting my book back and telling him to suck it, was easy as pie. Had he pushed the issue, he would have had his rear-end handed to him by my lawyer. He knew it, which is why he gave me back my book without a fight. I’ve known writers who weren’t so lucky. Good info! 🙂

  4. Thanks, Susan, for always sharing your valuable knowledge! Yet…it always saddens me to “remind” myself that as PC as some writers can be about the publishing industry (“biting the hand that feeds”…personally knowing some of these people)…it largely seems that the *intent* of most publishers IS to screw you for as much as they can get. If good intent was really there, people like you…contracts as they currently stand…would not exist. I would like someone to convince me otherwise, I really would.

    Sigh.

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