Welcome, wonderful people, to the next instalment of our publishing contracts posts!
We’ve talked about all the fun stuff so now we must move on to the denser, legal mumbo jumbo of publishing contracts.
Before we jump in there’s just time for us to listen to disclaimer before it flies off like a startled pigeon: these posts reflect my own experience with contracts and are intended for guidance and informational purposes only. They should not be taken as iron-clad advice for all publishing contracts and if in doubt you should seek specific advice. There are organisations, like the Society of Authors in the UK, who will be able to help with this and if you have an agent they should also be able to help.
So what exactly do I mean by ‘legal mumbo jumbo’?
These are the big, heavy clauses that are not usually altered. They talk about things like asserting moral rights, copyright lines, and warranties and indemnities. If you have an agent then it’s likely your agent has already had a big conversation with the publisher about what can be changed, so make sure you read through these clauses carefully, but be aware that getting these changed can be a tough fight.
Let’s start with…
Warranties & Indemnities
These are a crucial part of the contract. In a nutshell you will give a warranty, basically a guarantee, to your publisher that the book is your work and you didn’t steal it from anywhere and that the publisher won’t get sued if they publish it. Here’s a very brief example warranty:
The Author hereby warrants to the Publishers and their assignees, licensees, printers, manufacturers and distributors that they have full power to make this Agreement, that they are the sole Author of the Work and owner of the rights herein granted, that the Work is original to them, and that it has not previously been published in any form in the territories covered by this Agreement. The Author further warrants that the Work is in no way a violation or infringement of any existing copyright or licence, or duty of confidentiality, or duty to respect privacy, or any other right of any person or party whatsoever, that it contains nothing libellous, that all statements contained therein purporting to be facts are true and that any recipe, formula or instruction contained therein will not, if followed accurately, cause any injury, illness or damage to the user.
You can see that there’s a list of things you’re warranting to the publisher and they all boil down to the fact that you wrote the book and the book isn’t going to get anyone hurt or sued. There might be some other wording included to say that the book also isn’t ‘obscene’, but don’t worry this isn’t just a subjective ‘oh my goodness, that’s obscene!’ kind of thing. It has a more legal definition which is a bit more specific and broadly can be said to be something that is intended to corrupt.
I am sure your fiction book about space-faring pandas chasing secret treasure won’t corrupt anyone, (after all the publication of 50 Shades of Grey was not obscene!) but it’s always good to be aware of the meaning of things!
Now, let’s move on to indemnities, which go hand in hand with the warranties. When you provide your publisher with an indemnity it’s kind of like the legal equivalent of saying ‘cross my heart and hope to die’ (although no one’s going to take it that far, I hope!). You’re basically saying that if you break any of the warranties you’ve given your publisher then you’re on the hook for legal costs.
The Author shall indemnify and keep the Publishers indemnified against all actions, suits, proceedings, claims, demands and costs (including any legal costs or expenses properly incurred and any compensation costs and disbursements paid by the Publishers on the advice of their legal advisers to compromise or settle any claim) occasioned to the Publishers in consequence of any breach of the warranties given in this Agreement, or arising out of any claim alleging that the Work constitutes in any way a breach of the warranties given in this Agreement.
There may also be some small wording in this clause about the publisher changing your manuscript but only when they have been legally advised to do so. This would mostly be for non-fiction and could be, for example, when you make mention of a certain leader of a certain country who you know has some something super illegal. If it’s not been proven that they did do this illegal thing then they may want to change it so it says the leader allegedly did an illegal thing. So this only covers tiny changes to make sure no one gets sued.
In essence, if you’ve written your book and everything is above board then, although the wording in the warranties and indemnities sounds quite scary, you shouldn’t have anything to worry about.
Copyright Assertion / Infringement
There are a few parts to these clauses. They will cover who should be credited in the copyright line, what happens if the copyright is infringed, and – in some countries like the UK – asserting moral rights.
To start with copyright and moral rights assertion these clauses will confirm that the copyright remains with you, the writer, unless you are signing an assignment of copyright contract. (We talked about that in the Grant of Rights post). Then, if moral rights are included, the clause should state the fact that the author’s moral rights are being asserted in line with the relevant legislation. Let’s take a look at an example clause:
1. Copyright and Moral Rights
(a) The copyright in the Work shall remain the property of the Author and the following copyright notice shall be included in or on every copy of the Work published by the Publishers. Publishers shall use all reasonable endeavours to ensure that, if any edition shall be licensed by them, then the licensee shall include the same notice on their editions.:
Copyright © Sally Triceratops, 20** (** being the year of first publication)
(b) The Author hereby asserts their right to be identified as the Author of the work and Publishers undertake to include, and will use reasonable endeavours include the same for any edition sublicensed and to be published in the United Kingdom, the following notice:
The right of Sally Triceratops to be identified as the author of this work has been asserted by them in accordance with the Copyright, Designs, and Patents Act, 1988.
This clause is fairly simple, but again important as it makes clear who should be credited with the copyright and clearly states that the author retains the copyright.
Now that we’ve covered the assertion of copyright, let’s briefly touch on the infringement of copyright clause.
Again, this should be a straight forward but important clause and this one will set out what happens when either party considers that the copyright has been infringed, for example with pirated copies of the book being distributed or an unauthorised audiobook being read somewhere online. The clause will set out how legal proceedings might move forward – i.e. where costs lie and hwo they are split – if things go that far so this clause is always worth a read through carefully.
The clause setting out the governing law should be nice and short (so it’ll be easy to run through!) but has a bit of a ripple effect over the rest of the contract. This clause sets out which county’s laws are used to interpret the contract, so for publishers based in London it will look something like this….
3. Governing Law
This Agreement shall be deemed to be a contract made in England and shall be construed and applied in all respects in accordance with English law and the parties hereto submit and agree to the jurisdiction of the English courts.
Nice and straight forward!
Your publisher will want this to say it’s governed by the laws wherever they are based, so there may be more variation in this clause between US publishers. For example a publisher based in New York will want it saying the laws of New York but a publisher based in Los Angeles will most likely want this clause to say the contract is governed by the laws of California.
Broadly these changes won’t affect much to do with the contract and you supplying the book to the publisher – especially for fiction writers – but things like libel laws change enough across countries that it’s something you should be aware of.
And lastly, for our legal mumbo jumbo post, we come to the force majeure clause. It sounds strange, but it’s likely you’re already familiar with the gist of this clause. It will basically say that the publisher won’t be in breach of contract if they are unable to perform their duties due to no fault of their own. Sometimes a clause might set out what circumstances these might be and they’ll be things like floods, wars, earthquakes. Acts of god stuff.
Here’s a small example clause, which doesn’t set these all out but gives you an idea:
4. Force majeure
The Publishers shall not be in breach of this Agreement if they are prevented from carrying out any of their obligations because of circumstances beyond their control in which case the time permitted for the Publishers to fulfil those obligations shall be extended by a period equal to the period of the effect of those circumstances or that delay.
Your publisher’s clause might be a bit more meaty than this one, but it’ll be doing the same job, making sure that if there’s a flood at their warehouse and they can’t publish on the day they’re contractually obliged to, that they can push back the publication date without being in breach of contract.
And there you have it! We’ve whizzed through the legal mumbo jumbo that will likely turn up in a publishing contract. These are clauses you should read carefully when you get your contract with your publisher to make sure you know what you’re signing, but be aware that if you want to change these ones they’re going to be the ones you have to fight hardest to change. All of the things we’ve talked about here are very common and expected for the industry and if you provide a good book in good faith then you should be absolutely fine! (No matter how scary the wording looks!)
Next time we’ll take a look at how you can get out of a contract with a publisher! We’ll talk about things like out of print, termination, and breach of contract.
As always if you have any questions don’t hesitate to let me know and I’ll see if I can answer them.
Until next time: be well, be kind, and have fun!