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.”
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.”
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.