PUBLISHED MARCH 2002
by Ivan Hoffman, Publishing Attorney —
Book contract provisions that have to do with marketing and promotion can appear in various places within an agreement, but no matter where they appear, they should cover at least the following issues.
The book itself is central to issues about marketing and promotion since what it looks like–cover and internal art, typeface, paper choice, and other aspects of packaging–may have a significant impact on its marketability. The contract should discuss whether the author or the publisher has the right to the “final cut,” —that is, the right to make the final decisions in these areas. Contracts often contain provisions giving one party the right to be “consulted” on such issues but giving the other party the right to make final decisions about them.
Whatever these provisions are, they may be affected by provisions in any separate agreements any party to the contract has with a third party, such as a cover designer (read “The Cover Artist/Illustrator Contract” on my site; click on “Articles for Writers and Publishers”).
Merchandising & Commercial Exploitation
The fact that a publisher has rights to market, sell, and distribute a book does not, in itself, give that publisher rights to make deals for the merchandising and commercial exploitation of the book or some aspects of it. These rights, which should be conveyed to the publisher in the contract’s grant of rights provisions, should include the right to use the author’s name (real and/or pseudonym), likeness, and biographical material in such deals (read “Merchandising Rights in Book Contracts” on my site).
Since a book cover may be much more valuable than the contents of the book in terms of merchandising via posters, T-shirts, school lunch pails, etc., the contract should spell out which party has rights and what share the other party may have in the gross or net revenue derived from these rights. If the contract specifies net revenue, it should also spell out how net is defined.
Clearly, the contract should grant one party, almost always the publisher, the right to make the final decision about printing issues, including book size, number of units to be printed, when those units are to be printed, when to declare a book out-of-print, when to remainder, etc.
Authors may negotiate for restrictions on these rights, such as “no out-of-print or remainders for a stated period of time after initial publication” clauses, but publishers need not suggest such possibilities.
Some provisions in the contract should deal with what rights the author may have to buy copies or get some at no charge. In addition to stating the number of free copies an author will get, any discounts at which the author may buy additional copies, and any relevant royalty provisions, the contract should say whether the author is entitled to use the books in some restricted manner, such as only in classroom or lecture settings.
Web Site Issues
Issues about what authors can do on their own Web sites are related to author-copies issues. Contracts should specify whether an author can sell books on sites and whether the author and the publisher have rights to approve each other’s sites with regard to the book.
Book Signings & Other Public Appearances
Provisions dealing with these issues should make it clear which party has the obligation, if any, to arrange signings and other appearances and what obligation, if any, the other party has to cooperate.
If a marketing program is expressly described, provisions should cover the relevant rights and obligations of the author, including the right to be notified of events in sufficient time, the right to make public-appearance obligations subject to legitimate other business opportunities, and the right to be paid or have expenses covered by the publisher if travel and accommodations are involved. Any provisions dealing with such payment or expenses should specify whether the publisher can recoup the money from money otherwise payable to the author, such as royalties.
Caveats in Conclusion
In the end, of course, one party has to have the final right to make each of the decisions mentioned above. Otherwise you have a stalemate and thus the basis for a claim and, in the worst case scenario, a litigation about why a book was not successful or not as successful as it might have been.
Beware of the many form contracts–those contracts copied from books or passed around by others; they may fail to cover these issues adequately or at all. The legal and financial consequences of ignoring them can be very expensive (read “The Do It Yourself Publishing Lawyer” on my site; click on “Articles for Writers and Publishers”).
Ivan Hoffman is an Internet law, publishing, copyright, corporate training and online education, trademark, and music attorney, practicing for over 28 years. He practices in the Los Angeles area. His web site is www.ivanhoffman.com. You may reach him at firstname.lastname@example.org.
This article is not intended as legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws. This article does not create any attorney client relationship.