PUBLISHED MARCH/APRIL 2018
by Stephen E. Gillen, Lawyer & Partner, Wood Herron & Evans —
If you’ve ever been published, then you’ve seen it before: a WHEREAS and a THEREFORE followed by eight or more pages of pre-printed, pedantic prose offered up by the editor as his/her “standard publishing contract.” Other than a few tiny spaces for your name, the title of the work, and the manuscript delivery date, the bulk of it looks as though it were long ago locked down in Century Schoolbook typeface.
But the truth is that there is more to review than the spelling of your name, choice of title, and projected completion date, and more to negotiate than you might realize or believe. Authors, you see, (particularly first-time authors) are an insecure lot. As often as not, you have toiled in isolation, hour after hour, wondering all the while whether your proposal or manuscript is good enough to get past the slush pile. More often than not, your anxiety is then validated by rejection after rejection until finally, for the good who are also lucky, a receptive editor signals an interest.
Navigating a Two-Way Street
Editors are under ever increasing pressure to sign new titles, meet publication dates, and deliver sales results. For many of them, these factors have a direct bearing on their year-end compensation (a circumstance that can work to your significant bargaining advantage as year-end approaches). While there are many aspiring first-time authors out there, only a relative handful will be published. If you have attracted interest or a contract offer, then you have already made the first cut. A reasonable list of tactfully stated concerns and requested amendments will only reinforce the impression that you are a competent and thorough professional. Moreover, the editor will have invested a significant amount of time in reviewing your proposal, perhaps getting outside reviews, preparing a pro forma profit and loss analysis, and drafting a publication plan and recommendation for his/her superiors. If you are not signed, all of this effort will have been for naught and the editor will be back to square one.
You Have to Do Your Homework
Negotiations are ultimately influenced by which side knows the most about the other side’s positions. The editor starts this contest with an advantage gained from experience in the market, experience doing other similar deals (undoubtedly many more than you have done), and the benefits of your perspective as reflected in your proposal. The way to get on an even footing with the editor/publisher is to learn more about the publisher’s plans for, and expectations of, your work—information that will help you evaluate your leverage and the editor’s weaknesses. Ask about these issues in the context of negotiating a book contract and the editor will evade them, hedge, or refuse to answer. Ask about them after the editor has indicated an interest in your work but before you engage in active, contract-focused negotiations—in the context of learning more about the editor/publisher, more about their list and their business, more about the market and your potential competition—and you may catch the editor still in his or her selling mode. Ask them yourself, in person or over the phone, (rather than through your lawyer), and you are more likely to get candid responses. Negotiations may be formal and may be best handled by your lawyer in order to preserve your relationship with your editor. But information gathering will be most effective if you do it in person. It may take some prodding, probing, wheedling, and cajoling, but the information you gather will prove valuable, so make sure you take copious notes.
Determine What’s Important to You
There is no one-size-fits-all solution. If you make your primary living as a professional writer, then money issues will likely be at the top of your list—advances, grants, royalties, and re-use rights should be the focus of your attention. If, on the other hand, you are an academic living by the “publish or perish” mantra and in search of the inner peace that tenure will bring, then the money issues may well take a back seat to ensuring that your work is actually published—on schedule and intact. If you are a professional of another sort (doctor, lawyer, accountant, consultant) and you view the book not so much as a revenue generator, but more as a promotional piece and as your professional bona fides, then your principal focus may well be on the non-compete provision and ensuring that it does not preclude you from engaging in the kind of professional writing, speaking, and consulting that does pay the bills.
Stephen E. Gillen teaches electronic media law at the University of Cincinnati College Conservatory of Music. He worked for nearly 20 years in publishing prior to entering private practice in the middle 1990s. He is presently a partner at Wood Herron & Evans where he concentrates his practice on publishing, media, and copyright matters. He is a longtime member of the Textbook & Academic Authors Association (TAA) Council and a regular speaker at TAA conferences. This article was excerpted from Stephen’s Guide to Textbook Publishing Contracts (Textbook & Academic Authors Association, 2017).