Negotiating Writing Contracts

by Paul D. Marks and Jacqueline Seewald

A couple of months ago I read a blog post by Jacqueline Seewald that I really liked and thought contained a lot of good advice. So I asked Jacqueline if I could re-post it here at SleuthSayers as I thought our readers would also find it interesting and useful. She updated it a bit and gave me permission to share it.

A little about Jacqueline:

Jacqueline Seewald

Multiple award-winning author, Jacqueline Seewald, has taught creative, expository and technical writing at Rutgers University as well as high school English. She also worked as both an academic librarian and an educational media specialist. Nineteen of her books of fiction have been published to critical praise including books for adults, teens and children. Her most recent novels are Death Promise and Witch Wish. Her short stories, poems, essays, reviews and articles have appeared in hundreds of diverse publications and numerous anthologies such as: The Writer, L.A. Times, Reader’s Digest, Pedestal, Sherlock Holmes Mystery Magazine, Over My Dead Body!, Gumshoe Review, Library Journal, and Publishers Weekly. Her writer’s blog can be found at: http://jacquelineseewald.blogspot.com

Take it away, Jacqueline:


How to Negotiate Writing Contracts

Recently I signed contracts with two different publishers for two separate novels, one a mystery novel in the continuing Kim Reynolds series, the other a stand-alone historical romance set during the American Revolution. Each contract involved negotiations resulting in compromises from both myself and the publishers. I was reminded that I might have some ideas that could be helpful to other authors who also don’t work with agent representation. I hope what I share with you will prove helpful.

Let us say you have written and rewritten until you’ve finally completed the best work of which you are capable. At last, you find a publisher who appears to recognize your accomplishment and achievement. And now you are offered a contract. There are perhaps a few things that you should understand about contracts.

First of all, publishers use contracts to protect their own interests. Writers need to be savvy enough to do the same. Even if you have the benefit of being represented by a literary agent, you should not be ignorant in this regard. Let's say you've been offered a contract for a work of writing you've created. What should you expect to be included?

If you can afford it, I would recommend that you have an attorney look over your contract. But let's assume that the publication is a small one and the amount of money offered is less than impressive. Obviously, it will cost you more than you would earn to have an attorney examine your contract. Also, it’s not likely that an agent will want to bother with it either.

When you need to act as your own attorney and agent, the best thing to do is read up on contracts for writers before you sign. Here's where books like Writer's Market can be helpful. Writer's magazines often carry helpful articles. Writer's organizations like: The Author's Guild (www.authorsguild.org), National Writer's Union (www.nwu.org), American Society of Journalists and Authors (www.asja.org), Science Fiction and Fantasy Writers of America (http://www.sfwa.org/contracts/) all carry valuable information.

In regard to newspapers and magazines, there are a wide variety of agreements. Some editors work by verbal agreement (the proverbial handshake) while others insist on detailed written contracts. I’ve had both types of contracts work out well--but sometimes not so well. It all depends on the integrity of the publisher.

Writers are usually asked to sell first serial rights or one time rights. This is preferred by authors. If you sell "all rights" to a specific work then you will be unable to sell reprint rights later. And many smaller publications are quite happy to purchase reprints. At times I’ve sold reprint rights to short fiction and novels for more money than I received for selling first rights. So avoid selling “all rights” if at all possible. Of course, you can request that reprint rights are returned to you at a later date, but be aware that the publisher is not obligated to return them. My suggestion: always negotiate. I have turned down several well-paying publications for both nonfiction and fiction because I refused to sell all rights. I don’t regret it.

Payment should be specified and agreed upon. It shouldn’t be left vague. Request payment on acceptance. You might not get it, but it's best to ask. Getting paid upon publication can lead to all sorts of problems. Not every publisher is honest or has integrity. Remember that contracts are negotiable. There's nothing wrong with asking for changes that benefit you.

Ideally, a kill fee should be specified. This means that if the publication does not use your work, it still has to pay you a percentage of the original fee.

If you do have a written contract—and that’s always best—request that a specific date for publication be included. Some publishers will hold your work indefinitely otherwise. And yes, this has happened to me as well.

Book contracts are much more complicated to negotiate. If possible, once you are offered a book contract, obtain the services of an agent or attorney. True you will be giving away a percentage of your earnings on a contract you have gotten for yourself. However, if a good agent will now agree to represent your future work, then you are doing quite well. An agent can often get concessions from a publisher that you cannot. Here are a few examples: a higher advance, higher percentage of royalties, more free advance review copies and/or final copies of your book. Also, a good agent can deal with the publicity department of the publishing house on your behalf. Well-connected agents can get your work seen by top editors at the major publishing houses. They network and know what particular editors are buying at a given time.

 Assuming you are offered too little of a payment to make this practical and interest a first-rate agent, then you should read up on contracts for authors before you make a decision to sign on the dotted line.

What should you insist be included in your book contract? You ought to insist on an advance. The advance is based on a formula that projects the book's first year profits. Many small or independent publishers claim they do not and cannot offer authors advances against royalties. However, the publisher hopefully can be made to see that an advance, even a small one, is viewed as "good faith" money by the author. If no advance whatever is offered, this is a sign that the publisher does not expect the book to sell well or doesn't plan to put much or any money in marketing and publicizing your work once the book is published. A nonrefundable advance is what the author should be requesting. As to royalties, request that they be based on the retail price or gross and not the net proceeds which often turn out to be quite small. Publishers generally want only to give you a net percentage which ends up as very little, especially when they claim that there are “returns” of your book. Creative accounting by publishers is quite a common practice and hard to prove. Hiring a forensic accountant simply isn’t practical for a majority of writers.

Publishers generally ask for every kind of rights possible. You may want, for instance, to insist that movie and theatrical rights be removed. Publishers often include option clauses in their contracts insisting that they be offered first rights to your next book. This can be a problem if your work is successful but you are still offered the payment terms of the previous contract. Worse still is the publisher's right to last refusal.

A time range for publication should also be included in the contract. Two years is acceptable; past that, all rights should revert to the author.

Another matter of importance: find out in advance if the publisher will be sending your book out for reviews. If possible, have this specified in the contract. Without reviews from major publications the majority of readers will not know your book exists. Your sales will be highly limited.

Above all else, accept no contract in which you are expected to pay for anything. I cannot emphasize this enough! Any request for fees is a clear indication of a disreputable publisher. Alarm bells should go off. Run, don't walk away! Be suspicious, because there are plenty of scam artists around. Check out writing scams via the internet. There are lists of so-called agents and publishers to avoid on many of the legitimate writer's sites. Check out, for instance, SFWA's Writer Beware: http://www.sfwa.org/for-authors/writer-beware. This website offers valuable information.

My advice is to be patient. Take your time and consider your options carefully. Respect yourself and the integrity of your hard work. And don’t settle for less from a publisher.

If you disagree on some of what I’ve written or can offer your own helpful advice and information, please do so. Your comments most welcome to be shared!

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Thanks for joining us at SleuthSayers and for the great advice, Jacqueline.

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And now for the usual BSP:

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