The Contracts Involved in Book Publishing
Legal advice on becoming a published author in Washington stateBy Benjy Schirm, J.D. | Last updated on August 12, 2022
The number of authors choosing to self-publish, instead of signing a book contract with a publisher, and take the digital route continues to rise. Other than the medium in which a book appears, the big difference between getting a traditional publisher and self-publishing is in the book publishing contracts involved, says Seattle copyright attorney Robert Cumbow.
With a traditional publisher’s publishing agreement, “Many of the terms are negotiable, many of the terms can be eliminated, and authors come to me with a contract in hand,” Cumbow says. “I answer their questions and tell them what each of the clauses mean and I tell them what points they can get changed to better protect themselves from the publisher.”
From there, an author can go and negotiate the publishing contract on their own. It’s important a new author understands their subsidiary rights, their exclusive rights, and their publishing rights, along with all contract terms.
“The situation you don’t want to get into is the publisher’s lawyer and the author’s lawyer negotiating this agreement because there will be a lot of push and shove, and by the time the book is published, the author won’t make as much money as they have had to pay their lawyer,” Cumbow adds. “I always advise my clients and have them negotiate for themselves. I have developed over the years where the give is and how to get the best agreement while not alienating or upsetting the publisher, while making all of the author’s claims reasonable.”
On the other hand, if an author decides to self-publish, the contractual agreements are non-negotiable.
“They are asserting their rights under the agreement and you’re stuck with that if you want to use their service,” Cumbow says. “It’s called a contract of adhesion and all of us live with many of these agreements every day. You can publish a book this way and it may be a quick and easy—and satisfying and inexpensive—way of getting your book in front of a particular public.”
A contract of adhesion is often compared to the little contract on the back of a ticket to a concert, ballgame or even parking lot.
Cumbow recommends finding a publisher before you do all of the heavy lifting of writing a completed manuscript if you want to go the traditional publishing route. You can do this with or without a literary agent, but having one is often better. What agents and publishers want to see up front is not a finished book, but “usually an outline, a statement of what is special and different about this book, and why you think it’s marketable, to whom you think it is marketable,” Cumbow adds. “Be it young adult or science fiction, they have to get an idea of what you have in mind and they will want to see the outline and two sample chapters that are not contiguous.”
Agents will likewise come with contracts that should be reviewed by a lawyer to make sure it’s fair and consistent. “Big red flags are read-fees,” Cumbow notes. “If they are charging you to read your book, that’s not an agent you want to work with. You want to work with an agent who is happy to read your book so that they can sell it for you.”
Whether you’re looking for a publisher or agent, “Be prepared for a lot of disappointments,” Cumbow says, and be certain to contact a reputable and experienced attorney.
For more information on this area of law, see our intellectual property overview.
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