In past articles, I’ve talked about the pros and cons of epublishing, researching and choosing an epublisher. Of course, the goal was always to find an epublisher to submit to. And, hopefully, get accepted by. I didn’t talk about the submissions process in epublishing because it’s not that different from publishing in general, and because each publisher has their own submissions guidelines and requirements—which you should always read and follow in preparation for submitting.

So now your book has been accepted by an epublisher and you’ve been offered a contract. At this point, whether it’s your first book or your thirtieth book, you’ll want to make sure you read your contract. Let’s put this on the table first: a publisher’s job is to make money for the company. Your job, the author’s job, is to protect your business—yourself. I do not recommend signing any contract without understanding what you’re signing, and unless you’re an agent or lawyer specializing in publishing moonlighting as an author, it’s entirely probable you’re not going to understand the entirety of a contract. In traditional publishing, the majority of authors depend on their agents to vet the contract for them, but most authors working in epublishing don’t utilize agents. However, you can hire a literary attorney here in the US, no matter where in the world you live, and have them go over your contract for you. I recommend doing this at least once.

Nonetheless, I know there are any variety of reasons that people might choose not to consult a professional before signing a contract, and while my personal belief is that this is a mistake, especially the first time out, I know it happens more often than not. So let’s talk about epublishing contracts and what you might expect to find in them, things to be cautious of, and what I suggest you shouldn’t find in the contracts. Please note that this article is not meant to be substituted for a professional agent or attorney’s advice—I’m not an attorney or an agent, and I don’t play either on TV—nor is it meant to be a comprehensive examination of contracts. Rather, it is merely an informal look at some of the areas you might want to be aware of in epublishing contracts, and I hope you will take it in that spirit.

As I stated, the first thing is to read your contract and understand every clause you’re signing. You don’t want to unintentionally sign an options clause giving that particular publisher first look at every book you write for the next ten years, or sign a clause that gives the publisher the right to make sweeping editorial changes without your consent (please note that you don’t want to force the publisher into a position where they have to show you the manuscript every time a comma changes, either. That would just be silly.) Every clause in the contract is important, don’t skip any because you think they’re not. If they weren’t important, they wouldn’t be there.

Second, find out if the contract is negotiable and…here’s the shocking part…be prepared to walk away. Your strongest position of power is going to come from your own personal knowledge that you don’t have to sign anything you’re not entirely comfortable with. Now, let’s be clear, this doesn’t mean the publisher is going to give you everything you want. Just because a contract is negotiable it doesn’t mean 1) that everything is negotiable or 2) that everything is negotiable to exactly how you want it. What you have to decide is what your deal breakers are. What are you willing to give on, and what must you absolutely have? I find that most publishers will negotiate to a certain extent—but be prepared for those publishers who won’t, and have a plan in place for what you’re going to do then. Tie yourself contractually to that company? Or be willing to walk away?

One of the things to note is what “outs” are given to the publisher/author? Some things to consider: how long does the publisher have from time of contract to publish your book? Depending on the size of the company, keeping in mind I’m speaking of epublishing, I would suggest that 18 months from contract to ebook is probably the outside limits of what you should be comfortable with, especially as you earn no money (assuming there has been no advance) until it’s released. If they choose not to publish your book, what happens? And when is the book considered out of print? Also, what is the length of the contract? Is it 3 years, 7 years, lifetime and is it negotiable? Does the publisher have reasonable reasons for the length of contract? Length of contract can be especially important if you’re writing a series that you later move to another publisher, if you become the next Nora Roberts and want to sell backlist rights, or if you suddenly find religion and become embarrassed about what you wrote in a past life and want to bury it in the nearest pit.

If the publisher is taking more than just ebook rights (audio, print, world, etc) how long do they have to utilize those rights before they revert to you? I think this is especially important for print rights, because those are the rights you’re most likely to have the opportunity to sell/use. Pay attention to the length of terms, make sure that you have a way out if the book isn’t published in ebook/print in a reasonable time frame. It is not unreasonable to ask for reversion of rights if a book isn’t put into print within a certain period of time—understanding that most companies’ print programs do move more slowly than ebook, so 18 months from contract to print is not as likely to happen. Also look to see what outs the publisher has for themselves—keeping in mind that in most contracts, the publisher isn’t going to be obligated to publish your book if they feel you have been unable to meet editorial requirements.

I think it’s important to mention here that you’re signing a legal, binding document and entering into a business relationship with this publisher. If you’re not prepared to follow through with the terms of this legal, binding document and feel like down the road, you might find yourself in a position of wanting to no longer be in a position of having a business relationship with the publisher, don’t sign it. You’re not entering into a friendship, relationship, casual handshake agreement where in a year’s time you can decide you’re done and expect the publisher to be “nice” and release you from your legal, binding document just because you want and expect them to. Real, professional, business-like publishing doesn’t work like that. If you’re not ready for the realities of a legal, binding document, don’t sign it. Sound harsh? It should, because the consequences of signing something and not being prepared to keep to the agreement can be harsh. Believing that a publisher should dissolve their business interests in you because you want them to is unreasonable, and is unlikely to get you anywhere.

Next, pay. This might be the most important to some. In the contract, be aware of not only what your royalty rates are (gross, net, subsidiary, ebook, print) but also of how often you’ll get paid. I may have stated this in an earlier article, but one of the benefits of epublishing that we often discuss is that authors don’t have to wait for royalties as they do with traditional publishers. However, some epublishers pay monthly, some pay quarterly and some pay bi-annually. You may also want to note the method of payment: check, direct deposit, or PayPal. Does the publisher offer an advance (keeping in mind that few epublishers do this and generally it’s only a token advance) and if so, when is the advance released? Last, you might note whether your publisher sets a “reserve against returns” for print books, how much this is and how long they hold it for. You may also consider author copies as part of payment, and note how many, if any, copies you are given of either ebook or print to use as promotional giveaways or gifts.

Moving on, we get to one of my favorite, and most controversial topics in epublishing contracts: option clauses. I will tell you straight up, that my personal opinion is not in favor of option clauses for epublishing contracts. I feel that the epublishing business model, which doesn’t offer substantial advances to authors for efforts up front—but which works for that reason—shouldn’t attempt to mirror and take the same advantages as a traditional publisher’s contract without offering the same up front incentives. In short, if the publisher isn’t going to provide a guaranteed amount of money, I don’t feel they should ask for options for later books because authors may find themselves signing away options to books—to hours of work—only to find out the publisher’s sales are not as good as the author hoped. Clearly this opinion isn’t a popular one with some epublishers but one I thought it important for authors to hear the other side of from an epublishing professional.

For those unfamiliar with option clauses, these are clauses which give the publisher the right to have first look at your next manuscripts. They can range anywhere from right of first refusal on books within a certain genre with word count limits, to right of first refusal of any book the author writes. If you are going to sign an option clause (don’t do it), my suggestion is to be sure you’re not signing an unlimited, never-ending option clause, giving a publisher lifetime right of first refusal, and that you only sign one with limits, such as a one book option clause limited to a particular genre with word count limits (ie, the publisher can ask to see books of a certain length or longer), or books within a series (though that can stink, too, if you have a substantial series you want to later move elsewhere for future books in the series because you think they will sell better at a different publisher).

In addition to option clauses, there are other clauses you should be wary of. Do not sign contracts which ask you to give up the rights to characters/worlds you created unless you’re getting compensated handsomely for it, or clauses asking you to hand over rights to your author/pen name, promising to only use it at that house. Unless you intend to write for only that publisher under that pen name for eternity. Last, a clause I mentioned earlier in this article, make sure you understand the editing clauses. I want to mention here that option clauses such as the ones I’ve mentioned above, as well as others, are not always presented in an easy-to-spot manner, or in easily identifiable language, which makes understanding how to read a contract and consulting a professional even more important.

The things I’ve touched on in this article are merely a drop in the bucket to what’s contained in a thorough contract and again, I encourage everyone to not just understand what they’re reading, but obtain professional advice on it. I can’t emphasize enough that each author is a small business and like any small business, you must work to protect yourself, your rights and your work, because those are the fundamentals of your small business.

Angela James
October 2008

“Everything You Ever Needed to Know About Epublishing” © 2008 Angela James. All rights reserved.