Contracts – LDS Publisher

Contract Changes: ROFLR

Dear LDS Publisher,

I received a contract from “ABC PUBLISHING” the first part of March. I read through it and emailed this change back to the managing editor:

I understand Section 2 to mean “ABC PUBLISHING” would have right of first and last refusal. Is it possible to tweak the language in Section 2 to right of first refusal only and also that it only apply to LDS themed works?

The managing editor emailed back to say she’d forwarded my email to the COO since he’s is the one authorized to answer all questions about contracts. That was on March 17. I haven’t heard anything since then. Would it be okay for me to send an email asking for an update? Who should I send the email to? I don’t have the COO’s email.

Thanks for your help!

Good for you for not simply accepting that right of first and last refusal (ROFLR)! IMHO, a right of first refusal clause is okay, if it’s limited by time or genre. But first and last? I’d never agree to that. If you want to read my previous posts on ROFLR, go here and here and here.
I am sure they get that question frequently and it should be a simple answer—either yes or no. Maybe they’re trying to decide how badly they want your book? Regardless, it’s been over a month and they should have responded by now. Contact the managing editor and ask if a decision has been made yet.

Contract Deal-Killers

Since you mention that you wouldn’t sign a contract with a certain clause here, LDSP, I thought I’d go ahead and ask: what would be the deal-killers in a contract in your opinion? ROFR, ROFLR, etc.?

As a publisher, I think ROFR (Right of First Refusal) is a good thing. Usually, a first book does not sell as well as a second, third, or twelfth book. It takes time for an author to build up a fan base. When I invest in an author, I’m not just investing in one book. I’m investing in that author’s potential. The ROFR clause is there to help protect my investment—and in most cases, it should be reassuring to the author, knowing that the publisher sees this as a long-term relationship and not a one-hit wonder.

However, it’s easy for ROFR to turn into a monster. It needs to be limited. For example, it must be the next book, not every new book into eternity. It also needs to have an end date, for example, a book written in the next two years. Or it can be limited to a series, or to a genre.

Lately, I’ve seen contracts moving away from ROFR, toward a multiple book deal. For example, a publisher may contract an author of a YA fantasy for the one book they submitted, plus two more for a series. Or maybe for the submitted mystery, plus two more unrelated mysteries. I’m fine with that. To me, it seems fair to both publisher and author—assuring that the publisher makes back an investment and that the author has an automatic in for the next two books (assuming they’re good); but after that, both parties are free to move on.

ROFLR: The ROFLR (Right of First and Last Refusal) is a whole different kettle of fish—and very stinky fish at that. What this means is, you submit your next book, to Publisher #1 and they reject it. You submit it to Publisher #2 and they like it—but before you can accept their offer, you have to go back to Publisher #1 and give them the option to consider it again. That can take up to a year or more. At which point, publisher #2 may no longer be interested. I’d never agree to this.

Payment to Publisher: The other thing I’d never agree to is paying money to a traditional publisher. (There are situations where you might consider an author-assisted publishing contract, but that’s for another discussion—and is never part of a traditional publishing contract.)

Those two, along with the repayment of royalties, are the only things that I would definitely reject. Other things would depend on my circumstances.

The important thing about a contract is, you need to know what each clause means in real life language, and understand how it will effect you as the author and your future abilities to write and publish.

Overpayment Refunds?

Hi. I’m looking at my first publishing contract. I’m a real greenie, here. It has these words:

“In all instances in which the Author shall have received an overpayment of monies under the terms hereof, the Publisher may deduct such overpayment from any further sums payable to the Author in respect to the Work.”

I don’t understand. Under what conditions would I be overpaid? And would I ever have to refund royalties to the publisher?

When a publisher sells to a bookstore, the bookstore then tries to sell the book. If they can’t, they can return the book to the publisher. The publisher may have already paid you royalties on that sale. If they have, they deduct it from what’s due in your next batch of royalties.

If the returned books are still in good condition, the publisher can resell them and you’ll get the royalty on that second sale. But if they’re beat up, they may have to be written off as a loss, or sold as “scratch & dent”—in which case, you probably would not get a royalty.

If more books are returned than are sold (hopefully that won’t happen to your book), some publishers may require you to return royalties. (Yes, I’ve seen it in some contracts.) I think that is a stinky policy and would refuse to sign a contract with that in it.

In your case, since it isn’t spelled out, I’d ask your publisher what would happen if returns overbalanced sales, and have them spell it out in the contract along the lines of, “in no case shall author have to return paid royalties”.

*Clarification: I think returning royalties that have already been paid is a stinky policy. The part about subtracting returns from future payments is fair. This situation is one of the reasons why many publishers only pay royalties twice a year.

I Have Contract in Hand, Now What?

Normally, this would be a Writing Tip Tuesday post, but I have several questions in the queue and I want to get to them before I start posting the short stories for the contest. (10 more days to submit; tick-tock!)

Dear LDSP, I finally have a contract in hand, (AAaahhhh!!!) but have no idea how good it is. Do you know, 1) is 5% of the net received by publisher for the first 5000 acceptable? Also, 2) how long is the “full term of copyright”? This contract seems relatively innocuous, but what do I know. 3) Is there someone you could recommend to have look a contract over?

Royalties vary from publisher to publisher. 5% of net, IMHO, is low but I’ve been hearing that a lot lately in the LDS market, especially for first time authors. Here is a fairly clear explanation of how royalties work (retail vs net). Keep in mind that many LDS fiction titles never hit that 5,000 mark, some do not even crack 1,000.
Copyright. I’ve had several questions lately about basic copyright, so first let’s define it.
Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works. (www.copyright.gov)

This means, as I said yesterday, that as soon as you put your ideas into a fixed form—write on paper, typed into a computer, recorded on a tape—your work is protected by copyright. You, as the creator of that work, own the copyright.

When you go through a publisher to have that work published, you are essentially selling or licensing to a third party the right to publish (copy) and distribute (sell) that work in various formats. Payment for those rights come back to you in the form of royalties and/or advances against expected royalties.

The term, or length of time, that those rights are available to that publisher is defined in your contract, as are the various formats that the publisher can sell.

Current U.S. copyright law states that the “full term of copyright” lasts for the life of the author, plus 70 years. Therefore, according to your contract, the publisher will have the right to publish and sell your book for your entire lifetime, plus 50 years.

However, before you panic, usually there is an out-of-print clause or a minimum sales clause in there somewhere that states that if the publisher lets your book go out of print, or if sales of the book drop below a certain point for a given amount of time, the rights will revert back to the author. If you don’t have a clause like that, try to get one added.
One of the benefits of having a good agent is that it’s their job to look through your contract and make sure it’s legal and fair to you. In the LDS industry, we don’t have agents. Too small. If you have access to a copyright contract attorney, that’s your best bet—but it’s also expensive. Try to find someone who has a little experience with publishing and contracts to read through it. And if you don’t understand your contract, by all means, have your publisher explain it before you sign.

ROFLR Rears Its Ugly Head—Again

Updated to be more clear…

My author friend has a book deal with [a particular LDS publisher]. She’s published a few books with them. I was shocked when she told me that TPLDSP [this particular LDS publisher] has first and LAST right of refusal. Meaning that she has to publish ANYTHING she writes through TPLDSP , or not at all. And if they don’t want it, she can’t shop other publishers.

Is this even legal? Can they force her to use them for all of her publishing, indefinitely? If it isn’t illegal, it’s definitely immoral. She was a novice writer who probably didn’t even understand what she was signing. Have you ever heard of anything like this?

Thanks for any insight.

Because I haven’t seen her specific contract (and no, I don’t want to see it because I do not give legal advice), I can’t really say what exactly her contract says.

However, I’ve seen contracts from TPLDSP, and yes, they can be pretty bad in that area—at least, they were several years ago. Usually, the ROFLR clause means that if they reject the book she CAN shop it around to someone else, but if that someone else wants it, she will have to go back to TPLDSP and let them know she has another offer and then give TPLDSP the chance to reject it again. If they reject it this second time, she’s free to sell rights to the new publisher.

But the next book she writes has to go through this same process as well.

Legal? Yes. If they create the contract and she agrees to it, then yes, it’s legal.

Moral/Ethical? Not in my opinion. But I do understand why some small publishers try to get away with it. [This is based on the description of the ROFLR clause given above, NOT a simple ROFR for a series or another LDS book.]

Binding? No. They cannot force her to stay with them forever. I know quite a few authors who have started with TPLDSP and have later gotten out of their contract. [If you’re one of those authors and would like to tell us how you did it, you may do so in the comments, anonymously if you like.]

If she is unhappy with her contract, have her speak with their editor/legal department. She may be able to resolve her situation with a courteous conversation. Most LDS publishers will let an author out of their contract if they’re not happy. If not, as an absolute LAST RESORT, she should speak to a contract attorney, one who specializes in this area, if possible.

ROFLR Clause

Can you please explain the ROFLR clause in contracts? Does that mean if my publisher rejects a manuscripts and I find another publisher, I have to go back to my original publisher and allow it to reject the manuscript a second time?

First off, ROFLR does not mean “rolling on floor laughing riotously” (although sometimes I do that when I read publishing contracts).

It means, “right of first and last refusal”—something I personally would never agree to as an author and that has never been in any of the contracts I’ve offered authors. “Right of first refusal” perhaps, but last too? No.

And yes, that’s exactly what it means. The publisher gets to reject you twice.

For a more detailed explanation:

First, what they’re saying upon acceptance of Work #1 is that they get automatic first rights to Work #2. This may not be fair to the author but I can see why publishers do it. We do it. Or rather, did it when I was working as a publisher. However, if an author wanted it stripped from the contract, we usually agreed. Personally, I might sign a contract giving ROFR (right of first refusal) depending on how good my offer was for Work #1.

Second, it means that if they reject Work #2 and another publisher offers for it, you have to go back to the first publisher and let them know. If at that time, they decide they want it—it’s theirs. And, depending on how it’s defined, they may not even have to match the other publisher’s offer or get the book out there in a timely manner. Not fair at all. For me to personally sign a contract with this in it, it would have to spell out that they had to BEAT publisher #2’s offer and that they had to publish it within 1 year of dibsing it.

Third, again depending on how it’s defined, even if they let go of Work #2, they may still have dibs on Works #3, #4, and on into infinity. Totally not fair—and if our market was big enough to allow agents to make a living, a good agent would strip that out first thing. I would never, ever, ever sign a contract like this.

So what do you do if you’re offered a contract with this in it? First, you have the right to ask that it be taken out or amended. If they really want your book, they’ll negotiate. Second, if they won’t negotiate, you have the right to refuse to sign the contract. Nothing is binding until the ink is dry.

It’s All Negotiation

How do you go about negotiating changes you want made in a contract you’ve received from a publisher? I’m very intimated by this and am not sure how I would go about it. Email them? Call them? Send in a hard copy with the changes you want? And what changes should you expect to be able to get made and which ones are pretty much set in stone?

If you’re in the national market, GET AN AGENT! They’re going to know the publisher and how to negotiate for you.

If you’re in the LDS market, just talk to them. These are people. If you’re polite and reasonable, they should be polite and reasonable back. With contract in hand, call your contact. Go over the points that you want to negotiate.

As to what changes you can expect—that varies by publisher. Point A might be negotiable for one publisher, but not for another. Some publishers might negotiate on everything, others won’t negotiate anything. Wish I could be of more help.

LDS Agents

Say there was someone silly enough to work for chicken feed, and they decided to become an agent for LDS authors in the LDS market. What are the odds that the publishers would work with them?

Standard agenting fees are 15% of royalties (paid by the author), so unless you were really, really good at picking winners, it really would be chicken feed.

Would the publishers work with you? I don’t know. It depends on whether they see you as an unpaid asset that will help them find the better manuscripts, or as a pain in the side who is going to insist on contract changes they don’t want to allow.

I would be open to agents. I know some other smaller publishers who would. But I’ve also heard through industry gossip (so who knows if it’s true or not) that some publishers flat out refuse to work with anyone who uses an agent, unless they’re an author already established in the national market.

But assuming publishers are open to working with agents, there are two key stumbling blocks you have to overcome:

1. Convincing the publisher that your submissions are better than what’s coming in the slush and that working with you is easier than working directly with the author.

2. Convincing the author that you have a better chance at getting them accepted than they have on their own, and that you can get them a better deal than they can get on their own.

Good luck.

The Horrible Story of Nathan Newauthor

On the subject of marketing and promotion, I’m saddened to hear that some publishers don’t get back to their authors in a timely manner concerning promotional events. Sometimes it’s beyond their control and a matter of bad timing, but if it’s a regular occurrence, that’s really unfortunate. And as an author, you may feel hamstrung in your efforts because there is probably a clause in your contract somewhere that says you have to have all promotional pieces and marketing efforts approved by your publisher.

There is a reason for that clause as illustrated in this story about Nathan Newauthor. Nathan is a soon-to-be-published new author whose book is currently at the press. In his enthusiasm and inexperience and without permission and approval from the publisher, Nathan decides to get very creative with his marketing ideas. Having read a book on guerilla marketing for writers and being encouraged to push the envelope by friends and family (who know very little about the publishing industry), Nathan creates and hand distributes a promotional piece at an event with nearly 1,000 attendees that are HIS TARGET AUDIENCE.

Wa-hoo! Those orders ought to start rolling in.

Here’s what Nathan doesn’t understand.

Although he and his mother thought it looked quite attractive, his marketing piece was very unprofessionally done. It looked like it had been copied at Kinko’s and hand-cut and assembled. Which it had been. Now, let’s think for a minute. Does an ugly promotional piece encourage or discourage someone to go purchase a product? Do the people he gave promo to know that Nathan lovingly slaved for hours to create this? Do they give him an A for effort? No. They think the publisher did it–and if that’s the best the publisher can do, why would they think the “real” book would be any better? Nathan most likely just lost 800 of the 1,000 people in his target audience.
If Nathan’s publisher had been involved, the promo would have been professionally designed, using appropriate fontage and color and white space and all that other graphic design mumbo-jumbo that most people poo-poo, but which has an actual, measurable impact on the buyer.

Nathan spent way too much money on the project, so he decided to just do a few in color and the rest in black and white. Color says, these people know what they’re doing; black and white says, these people are working out of their garage on a shoe-string budget.
Had Nathan’s publisher created the piece, it would have been in color and printed at a much lower price. Because we have connections.
Nathan thought it would be great to get advance notice out for his book. Good in theory. But if you market too soon, you lose momentum. Since his release is over a month away, it’s too soon to market to the end customer.
Nathan also thinks people will pre-order his book. No, they won’t because his name is not J.K. Rowling. They’ll go to the bookstore or website, decide to wait to get the book when it’s available, and then FORGET about it.

Publishers understand this. We time our advance notice.
Nathan didn’t know (because he didn’t bother to ask) and the publisher hadn’t told him (because it clearly states in the contract that Nathan has to approve all marketing efforts and since he didn’t, the publisher had no way of knowing he was planning something like this) is that there was trouble at the printer and his books are going to be delayed by several weeks past his scheduled release date.
Publishers know that release dates can be tentative and they plan accordingly. New authors believe the release date is carved in stone.
Nathan thought it would be a great thing to let all the people at this event know about his upcoming release. What he didn’t know is that the event coordinators have a very strict policy against distributing promotional pieces at said event. In fact, if a publisher does that, they are very often asked never to return.
If Nathan had asked his publisher, the publisher could have prevented this serious faux pas.

Nathan thought he was doing his publisher a favor because the event coordinators are one of the publisher’s largest bulk buyers. But they don’t like what he did. They are not happy. If they are severely unhappy, not only will they NOT buy Nathan’s book, but they may also stop buying other books from this publisher. Nathan thinks he was only promoting himself and his book, but in reality, since the publisher’s name was all over the marketing piece, he was also indirectly representing the publisher, and by default, all of their other products as well.
Again, the publisher could have prevented Nathan from not only shooting himself in the foot, but also from shooting the feet of the publisher and their other authors.
Nathan thinks marketing and promotion is all fun and games, and that anything goes. As long as he’s paying for it, what’s the harm? What he doesn’t realize is that he’s created a situation that could cause a lot of potential harm, for himself, for his book, for the publisher and for every other author the publisher represents.
Because the event coordinators are a major buyer of the publisher’s products, the publisher has to keep them happy. This is especially important in a small market like ours, where there are only so many distribution channels.

If the buyer is ticked, and the publisher blows it off, they lose credibility with the buyer. If the buyer is really ticked, the publisher may have to choose between Nathan Newauthor’s not-yet-released book and placating the buyer. Since Nathan’s book is one teeny part of the publisher’s product line, and the buyer is a huge part of the publisher’s income, what do you think the publisher is going to do? The choice could literally be between dropping the author like a hot potato or going out of business.

Worst case scenario: the publisher decides Nathan’s mistake puts them in a high-risk situation, cancels the contract with Nathan, destroys the book, and sues Nathan for loss and damages due to breach of contract.

Best case scenario: the publisher gives Nathan a harsh talking to, holds the release of the book until everything is smoothed over with the big buyer, and is now very reluctant to consider future projects with Nathan.

Point of the story: Just because an author doesn’t understand why a publisher has a certain policy or clause in their contract, it doesn’t mean there’s not a very good reason for it. When an author disregards that, they are asking for trouble.

Another point of the story [for those of you who still don’t quite understand this concept yet]: Yes, for the publisher, the bottom line IS ABOUT THE MONEY. If we don’t make money, we won’t be publishers for very long.

One last point: If this is too restrictive for you, then you are free to self-publish. No one is preventing you. But if you choose the traditional publishing route, you have to be willing to play by the publisher’s rules.

P.S. This is not a fictional story. It is based on true events, but the names and a few small particulars have been changed to protect the… well, you know.

P.P. S. Fortunately for Nathan, the publisher was able to smooth things over with the buyer and he got the best case scenario.

Selling vs Retaining Rights

Can I ask another question about contracts? Why do publishers want all the rights to my book, worldwide and in every possible format, even when they say they probably won’t use them? For example, my publisher wanted the audio rights even though they said they probably will never put my book on CD. What if I really want it on CD? Do I have any say in this?

One reason publishers ask for rights they probably won’t use is for quality control–to prevent you from selling those rights or exploiting them yourself in a way that would be detrimental to the sale of your printed book.

Since you mentioned audio rights, I’ll use them as an example. Some publishers automatically create an audio version of books they expect will sell reasonably well. Other publishers wait to see how the book is selling before they commit to an audio version. If sales don’t reach a certain level within a certain amount of time, no audio book. But they don’t want you to go out and create your own audio book because if you don’t know what you’re doing and you don’t do a professional quality job then that will act as a detriment to the sales of the printed book.

In addition to quality control, publishers want to control the public’s access to your book in a way that will boost sales, rather than replace them. They want to make back their investment and make money for you. Having your book out there as an uncontrolled e-book or in rampant serialization is not in your best interest.

Bottom line, unless you’re really familiar with the industry and a whiz at contract negotiation, you’re not going to be able to sell these other rights yourself anyway. So in most cases, it’s in your best interest to go ahead and give these rights to your publisher–who may be able to sell them for you. Most contracts have a clause addressing this, splitting the revenue from the sell of rights 50/50, after expenses.

Now, it’s a little different on the national market when you have an agent to represent you. In that case, the agent negotiates for you and separates the various rights, selling them to different entities.

It’s a Small World

One of the comments on my post suggesting you seek legal advice on publishing contracts lamented the lack of experienced attorneys in Utah. That may be the case, but we live in a world connected via the Internet and your options are not limited to the state where you reside.

I did a quick Google on “publishing contract attorneys” and found a long list of sites to peruse, including this site. I’m not promoting or endorsing the site or the firm, but if you’ll note, the site was listed in Writer’s Digest as a good resource for authors. They have a long list of legal articles that contain some good information. Again, I’m not endorsing this, nor giving it a blanket stamp of approval, but from a brief skim of a few of the articles, it seems to be legit and on target.

I also found this site. I entered “publishing contracts” and selected Utah and came up with a list of 42 attorneys/firms; 26 sublisted under Entertainment Law, and 28 under Intellectual Property. If I personally felt I needed legal help, I would start by calling each of these firms and asking if they have someone experienced in publishing contracts. Ask how many they’ve negotiated, how many they’ve broken, and for a list of happy clients that you can call to talk to. All it costs is your time.

Then I went to Publishers Marketplace and did a search for contract attorneys. This produced a list of attorneys who say they specialize in publishing contracts. While they may not be familiar with Utah law, they will understand publishing contracts in general. You could fax them your contract and they can advise you on potential problems. They may also be able to work as counsel in an advisory relationship to a Utah attorney.

I found all this–and much more–in a quick 15 minute perusal of the Internet.

Note: I have a concern that all this talk about contracts and suing is going to have authors rushing to review their contracts and looking for problems, causing fear and anxiety without cause. Let me say that in my experience, most LDS authors are pleased with their publishers and even if they wish they earned higher royalties (who doesn’t?) they are satisfied with their contracts. Most authors that I know who have had concerns have been able to re-negotiate with their publishers or have been released from their contracts.

If You’re Unhappy…

Geez, I go away for the weekend and you all go crazy on me! I love it. And I thought I’d hit a hot button when I got 6 comments on a post. But we’ve set an all-time record here. And my hit stats are through the roof. Thank you.

A lot of the comments were tangential to my post, and that is just fine. But they did bring up a good question:

What do you do if you’re really unhappy with your publisher but you’re locked into a contract?

I wish the LDS publishing industry was big enough to support agents. An agent’s job is to negotiate with the publisher in YOUR behalf. They are the Doberman whose job it is to protect YOU. Good agents “get” the legal talk found in contracts and can predict how that language will effect you, given various scenarios. They also work with attorneys who specialize in publishing contracts. A competent agent won’t let you sign something that is patently unfair or detrimental to your long-term career.

But we don’t have agents because the industry is too small and so authors are left to fend for themselves. Many LDS authors think that since they’re dealing with LDS publishers they will automatically be treated fairly and honorably, as our religious tenets demand. Many times (I would hope, most times) they are. Sometimes they are not. To be safe, smart authors will have an attorney who is familiar with the publishing industry review their contract before they sign them.

If it’s too late for that and you’re really unhappy with your publisher and your current contract, the first thing you do is try to re-negotiate your contract in a professional manner. Most publishers are reasonable people. If you’ve sold well for them, they’re more likely to work with you to come to some mutually acceptable agreement.

If they’re resistant to your attempts, perhaps you can find another author within the same company who has successfully negotiated their contract and have him/her mentor you. Or find another author who has successfully broken or nullified their contract with your publisher, and discover how they did it.

If you’ve really exhausted all your options for peaceful negotiation, and you’re sure you’re being reasonable* and the publisher is a tyrant and just won’t budge, contact an attorney. Many in the LDS culture are hesitant to sue but if that’s your only recourse then seriously consider it–especially if you’ve been a productive, well-received author and this contract is effectively ending your career. Find a good attorney who specializes in contract law and who has some experience in the publishing industry.

Since ROFR was specifically mentioned, let me say that most ROFR clauses, like most non-compete clauses in the rest of the business world, are unenforceable. Legal ROFR clauses must be reasonably limited by time and/or number of books and/or genre. If yours is not, seek legal help. You may be able to force them to delete the ROFR or the judge may nullify the entire contract. If you know other authors who have that same clause in their contract and are equally upset over it, you might have grounds for a class action suit.

However, a word of caution. If you are not the reasonable one, even if you succeed in breaking your contract with your publisher, other publishers might be leery about signing you. You might want to speak with a couple of other publishers to see if: a) their contract is different; b) they are outraged at the terms of your contract or at least think you have a legitimate complaint; and c) they’d be willing to take you on when you get out of your current contract.

*You have a reasonable complaint if their ROFR commits you to more than two years and more than the next two books. You are unreasonable if you think you should get 20% royalties, or a 50 city book tour paid for by the publisher, or that they will accept your next manuscript without edits, or…