Beware, Treacherous Clauses Ahead
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Beware, Treacherous Clauses Ahead
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From the Press to the Reader
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Library of Congress 101
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A few notes concerning the 2011 update
Title: Beware, Treacherous Clauses Ahead
Author: Clea Saal
Summary: An attempt to explain some of the less than pleasant surprises that may be lurking in the contract you are about to sign.

Signing a contract can be a lot like sleeping with the enemy. Yes, you have a common goal. Yes, it's a partnership that should benefit both of you, but at the end of the day you may find that what's in your best interest is not necessarily what's in your publisher's best interest. Since your publisher, as the service provider, has the right to set the terms of your contract, it is your responsibility to make sure that those terms are really fair to you.

I'm not saying you shouldn't trust your publisher, or that there are no honest publishers out there who are willing to offer you a fair deal, but there are a number of clauses that are reasonably widespread, that you should be very careful with.

You really shouldn't have to PAY for someone to take away your rights

Let's face it. You are paying a fee to have your book published, you not only wrote the work in question, you are also shouldering most of the financial burden in order to have it published, therefore your publisher really shouldn't ask for exclusive rights.

It's true that traditional publishers demand exclusive rights in order to publish a book... but they also pay a considerable advance for the privilege and make an investment of thousands of dollars to produce an important number of copies. POD is not traditional publishing, it is a back door into the printed world and the parameters must be different. This does not mean that POD is not a valid option, in fact with a good contract it can be a great alternative for new writers, but getting a good contract is the key issue here.

The only right you should grant your publisher is for POD distribution in the original language, and yes, that one can be exclusive as long as you have a reasonable procedure to terminate that contract that has no strings attached.

Look for the emergency exit before you enter the building

Under which terms can you terminate your contract? What's the established duration? Don't sign anything that doesn't give you an almost immediate way out , with no strings attached, if a good opportunity presents itself. The other thing you should take into account is the fine print that may be hidden in the cancellation terms. These are some examples I've found:

- Some publishers prevent you from terminating the contract before a certain period of time has passed.

- Others may ask you for a percentage of the royalties derived from your book for a period of time after the contract has been terminated.

- And yet others reserve the right to continue to sell and distribute the book for up to a year after cancellation.

This last instance effectively closes the door on the possibility of obtaining an exclusive contract with a traditional publisher (since such a publisher would demand exclusive rights, and you can't just say "OK, but starting next year, deal?").

Also make sure that there is a clause in there that insures that your book will be published within a reasonable amount of time, and that gives you a full refund if it's not.

Those pesky foreign languages

A number of publishers have clauses that read something like " all languages throughout the world." This sounds very professional and impressive. It boosts your confidence on the fact that you are dealing with a serious publisher... and it can easily turn into a deathtrap. These are the three main reasons why you should be very wary of such a clause:

- Just like a traditional publisher, a foreign one is likely to demand exclusive rights to its language. A clause like this would mean having to choose between passing up on the opportunity of having your work translated, or terminating your contract with your POD publisher (if you can).

- Translations are work for hire, that means that, while no one can publish a translation of your work without your consent, you do not automatically own the rights to a translation (unless you paid for it yourself). A clause such as this can be interpreted as giving away the rights to something you don't own, and no foreign publisher is likely to agree to those terms... and let's be realistic, a POD publisher is not likely to take on the expense of having the work translated for you.

- Depending on the wording of the rest of the contract, this clause may be interpreted as giving your publisher the right to negotiate a contract for a translation with a foreign publisher, in which you wouldn't necessarily have a say and that is not necessarily limited by the duration of the original contract.

And a final note on this subject: keep in mind that your chances in foreign markets are increased by the fact that, while the agent is all-important in the US, and by extension in most English speaking markets, he is not such a relevant figure in other markets.

Anthologies, compilations and other mutations

In theory having your book featured in a compilation could be a great way to gain some additional exposure (particularly if you write poetry or short stories), and if the contract specifically states that the publisher's right to feature the work in an anthology or a compilation will not extend beyond the duration of the contract itself, and that you have to approve such publication before it can be made available to the public, they are indeed a good option, though the royalties you would receive would probably be laughable.

Unfortunately most contracts that include the option to have the work featured in a volume of this nature don't include such limitations, and the question of whether or not the publisher is to be allowed to continue to distribute your work in this form once the contract has been terminated is open to interpretation. A clause like this leaves you open for a very nasty divorce, in a best case scenario, and in a worst case scenario it could cost you the possibility of a deal with a publisher that demands exclusive rights altogether.

Subsidiary rights... giving away more than you bargained for

To put it bluntly, your publisher is going to publish your book in a single language, there is no reason for you to sign away any additional rights to your book in order to have it published. All those rights your publisher is not going to use should always remain in your hands. It's plain and simple.

Make sure you only pay once

Some publishers, in order to accept book returns, demand that you pay the printing costs for each copy of your book that is ordered by a bookstore before they print it. In other words, they offer a very appealing deal for bookstores, but they do this at the expense of the writer and they refuse to accept, or even share, the risks such a policy entails. While a good return policy is a good idea, this implementation could end up meaning that at the end of the day you owe your publisher a regular fee beyond the payment of an original setup fee. This can turn your book from a source of profit into a source of constant deficit, are you sure you can afford it?

If it's not in your contract it's not in your contract

Keep in mind that your contract represents the whole of your legal agreement with your publisher, and grey areas are open to interpretation. If something is not specifically stated in your contract you may run into some unpleasant surprises, and find yourself unprotected later on.

 OK, I know this sounds scary, but the good news is that there are enough publishers out there that don't have any of these clauses in their contracts, so shop around, and, as always, read before you sign.

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