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Contracts That Resemble But Are Not Publishing Agreements

There is a difference between contracts offered by traditional publishers and contracts by printers that resemble but are not publishing agreements. Traditional publishers produce, distribute and market books at their own expense; they assume the risk that these costs will have a positive return on investment. Printers print on demand even though they may advertise themselves as “publishers”; if they offer editorial, design and publishing services the costs are charged to the author. Many of the companies are faux “publishers” in the business of fulfilling whatever sales demand the author is able to generate through her own marketing efforts. If you are considering using a non-traditional publisher check first with “Writer Beware” a blogging site I recommend. The bloggers on “Writer Beware” have recently discussed a number of companies authors are cautioned to avoid including faux publishers and one in particular who is a defendant in a civil fraud action commenced by the Florida Attorney General.  The cautionary tale is to read before you buy. Pay particular attention to whether the company asks for a grant of rights as a condition for “publishing” your book.

What should an author look for?  Let us look at a couple of contract provisions from a faux publisher a client recently brought to my attention. The contract included the usual boilerplate provisions expected in a publishing contract but also contained a provision that required the Author to make a substantial payment. The provision read as follows:

The Author shall receive 10 free copies of the Work and agrees to purchase 1,500 books at $9.22 per copy (payable 1/3 on signing, 1/3 30 days from delivery, and 1/3 90 days from delivery) plus the cost of shipping.

In other words, for the privelage of having her Work published the Author agrees to pay the “publisher” $13,830 plus shipping.  In addition, the Author has to do her own marketing.  The provision continues:

The Author is encouraged to sell copies of the Work at public speaking engagements, the Author’s website, by direct mail, including through a newsletter, as a premium … or any other manner.

The “publisher” magnanimously assures Author that it is prepared to “negotiate [with the Author] in good faith for a higher discount depending on the number of copies involved.” Unsaid, is that such an arrangement would only be suitable for authors on the lecture circuit who sell their books to audiences or over the Internet, but $9.22 per copy probably represents a significant markup over the actual cost of printing and binding.

What this Author signed was not a publishing contract but a printing contract. The Author is required to purchase books in bulk thereby relieving the “publisher” from printing at any one time more copies than the Author orders. The royalty schedule which appears typical for the kind of work involved is actually illusory since the only income (if any) come sfrom the Author’s own efforts.

Exiting contracts that contain no termination clause or reversion of rights provision is problematic because the “publisher” controls the rights and not the author.  One possibility, which worked in a recent case was to put the “publisher” on notice under a termination provision that contained a definition of “in print.” A book available only on demand (a reasonable argument can be made) is not “for sale in at least one U.S. edition” as that term is understood in the publishing industry. The “publisher” agreed, the contract was mutually terminated and all rights were reverted to the author.

To be safe, negotiate changes to a “publishing” contract before you sign it.  And, if the “publisher” has a policy of not negotiating changes to what it calls its “standard contract”, then better to forgo it.

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