PUBLISHED SEPTEMBER 2016

by Jon P. Fine

Jon Fine

When authors and publishers talk about marketing, the predominant focus is finding an audience for their books. But marketing is not just relevant to sales; in an increasingly competitive environment, it is also essential to attracting authors. Technology-driven disruption has dramatically altered all areas of the business, but the ability of authors and readers to find each other without the assistance of traditional publishing structures is one of the most significant aspects of the revolution. Technology has also empowered a new and growing class of publishers, seeking to exploit the inefficiencies in a rapidly changing publishing environment. I believe that an explicitly author-centric approach to publishing is an essential strategy.

All publishers would acknowledge the fundamental importance of the storyteller, along with the reader, to the success of the business. But my experiences with content creators and media companies over the last 25 years suggests a fundamental disconnect between that understanding and its practical application in the day-to-day conduct of business. The key is translating that belief—that there is no more important customer than the author—into an explicit set of business, cultural, and legal practices. And from a marketing standpoint, focusing on “author happiness,” as aspirational as it may sound, doesn’t just appropriately prioritize the primacy of the author to the publishing process; it also enables publishers to differentiate themselves from many of their competitors.

This “author as customer” approach means prioritizing what authors need and want and working backwards to achieve those goals across the author-publisher relationship. It starts foundationally by defining that relationship as a partnership rather than a mere economic transaction for the rights to a book. The publisher is investing in the author’s future. The approach requires a cultural commitment by the publisher throughout the organization and at every stage of the process: among other aspects, prioritizing author communications, a dedication to the work’s and the author’s editorial development, a collaborative and empowering marketing strategy that accurately reflects the increasing publisher-reliance on author efforts to develop an audience, and a commitment to actively exploiting the work’s potential throughout the life of the relationship, and returning those rights to the author when such efforts are no longer feasible for the publisher.

Author agreements are an essential and concrete way to demonstrate this commitment to author interests from the relationship’s inception, and to differentiate a publisher from its rivals in a competitive marketplace. Because contracts are a traditional pain point for authors, agented or otherwise, a well-crafted, plain-language, author-centric agreement is an opportunity to upend expectations and establish a unique identity in the market.

An author-centric publishing agreement does not require a publisher to undermine its own interests. A thoughtful re-examination of traditional language and terms to reflect changing business practices can make a big difference without sacrificing the economic bottom line. Some specific approaches include:

• Don’t “warehouse” books for the life of copyright: Limit the term of the agreement. Few publishers actually actively exploit their books for the “term of copyright” (life plus 70 years) that most agreements authors to grant. After a suitable period to allow the publisher to recoup and profit from its investment in the book’s initial publication, that publisher’s ability to retain its rights should depend on its continued active investment in the sale and marketing of the work. Author agreements should have shorter initial terms or reversion clauses that permit authors to regain their rights if specified sales are not reached.
• Don’t warehouse rights: Take what you need and give back what you don’t use. Publishers often obtain many more rights than they will ever use. Contract only for those rights that you can legitimately exploit, and permit authors to revert those rights that haven’t been exploited within a certain period.
• Don’t warehouse authors: Permit the pursuit of simultaneous projects. Unduly restrictive non-compete and option clauses that prevent authors from pursuing other work can have a devastating effect on an author’s earning power and career development. These provisions should be narrowly drawn to reflect the publisher’s legitimate interest in preventing truly competitive works, while preserving an author’s ability to preserve their livelihood.
• Don’t warehouse royalties: Speed up payments. Too many publishers continue to pay royalties annually or semi-annually, with substantial reserves, based on historical practices that are often no longer extant in an increasingly digital marketplace. E-book-only publishers should pay monthly or quarterly, and within 30 days of the end of the period in which the monies are received, rather than the three- to four-month period currently mandated in many agreements; reserves for returns should reflect recent historical data and should be capped at a reasonable duration following publication.
• Draft agreements in simple, plain language. Publishers who commit to presenting their authors with clear, plain-language terms can substantially differentiate themselves from their competitors. The best agreements tell their own story, in simple terms, about the life of the book and the partnership between the publisher and author.

Other opportunities for reform include flat royalty rates, eliminating deep discount clauses, and a fairer and more realistic allocation of risk around warranties, indemnities, and insurance. But beyond simple fairness, creating an explicitly author-centric publishing culture and reflecting that approach in the author agreement makes strong business sense for publishers working with a progressively empowered author base and increasingly competitive marketplace.

Jon P. Fine advises authors, publishers, and other members of the creative community on legal and business issues in traditional and digital media. He previously served as a legal and business leader at Amazon, Random House, NBC News, and Saturday Night Live, among others.