Care and Feeding of Your Sexy Novel
Negotiating with a Publisher (without an Agent)
Part One of Care and Feeding of Your Sexy Novel is here.
First you wrote a great erotic novel (perhaps with inspiration from Aphrodite’s Pen). Then you found a publisher without paying an agent (see Part 1).
Now it’s time for the next phase: negotiating your advance and your contract (which you’ll have reviewed by a literary attorney).
Take a deep breath and let’s go!
Negotiating an Advance
If you are working with a large or midsize publisher, it’s important to know how advances are calculated so that you can advocate for yourself. The number you and your publisher will be aiming for is the anticipated dollar figure for your first year royalties. That is, expected year one unit sales x price x royalty rate.
For example, let’s say you expect to sell 1000 books at ten dollars apiece with a royalty rate of 15%. Then your advance would be:
1000 x 10 x .15 = $1500
Let the publisher propose a number and then explain why it should be bigger.
Your reasons may be some combination of your platform, your email list, your public appearances, your past publicity-related publications, and your endorsements.
Negotiating Contract Terms
Your publisher will likely provide you a draft contract, which may include terms highly favorable to them. No need to sign it as is; that draft is just the starting point for negotiating your agreement.
|Whether or not you use an agent, you can and should hire a literary attorney to review the draft contract from your publisher and represent you in negotiations.
I am not a lawyer and the information below is not legal advice. It is merely a summary of what I’ve learned by studying information from lawyers and from negotiating my own contracts.
A great online resource is the summary of contract provisions from Morse Law.
Here is a brief overview that shows key contract provisions and notes for authors:
- Rights Granted:
- Copyright: You, as the author, own the copyright; only specific publishing rights should be granted to the Publisher.
- Territories: The publisher may ask for worldwide rights. In your final contract, the publisher should have rights only to territories where they realistically plan and commit to publish your work. Publishers will generally ask for everything: it’s your job to negotiate to ensure they get only the rights they need to meet their committed plans.
- Subsidiary Rights (articles, excerpts, translation, movie, TV, audio): The author should retain rights except for those the Publisher intends to exercise. Rights should revert to you, the author, unless exercised in 2-3 years (or any period you decide). Any rights not specified remain with the author. (For example, if the publisher does not create an audio version of your book, you should have the right to do so without sharing revenues with the publisher). Again, don’t give up rights unless the publisher commits in the contract to acting upon those rights in a timely manner. For example, I once gave rights to produce an audio book version when further reflection would have made it obvious that the format of the book made that impossible – as the publisher declared after some weeks of study. But they still retain the rights.
- Advances and Royalties:
- Your advance should be nonrefundable if the manuscript is rejected.
- Half of the advance should come to you on signing, half on delivery/acceptance of the finished manuscript (avoid payment on publication—you want your money in a timely manner!).
- Royalties (the portion of book revenues paid to the author):
- Ideally based on cover or list price; less favorably on net revenues (after overheads – which can be manipulated by a less scrupulous publisher)
- The contract should specify revenues by format:
- Hard cover (10-15% based on sales numbers)
- eBook (20-50%)
- Audiobook (25-50%).
- Hard cover (10-15% based on sales numbers)
- Permissions and Releases: In the event your book quotes an author whose work is still under copyright, it is typical for the author to be responsible for obtaining permissions. The contract should specify when the author must submit permissions to the publisher, and who pays the costs of obtaining the permissions.
- Editing: The contract should require the Publisher to provide written editorial guidance, line editing and proof reading.
- Publication Details:
- The contract should require a firm publication date (you don’t want your manuscript languishing forever!)
- Print run: The contract should define the minimum number of copies for the first print run.
- Author Approvals:
- You should have approval rights to the edits and final version to be published.
- Ideally you should have approval rights to the title, jacket, layout, and cover artwork. At minimum you should be consulted.
- Advertising, promotion (approve or at least consult).
- Advertising and Promotion:
- Ideally the Publisher will commit to an Ad and Promo budget
- You and the publisher should agree on the number of Advance Review Copies (ARCs) for third party reviews
- You will probably want to do some marketing yourself. Agree who does what and how to communicate and coordinate plans and activities.
- Accounting and Payment:
- The publisher must agree to keep accurate records
- The author may audit those records at specified intervals
- There should be quarterly or at least semiannual payments of royalties.
- Warranties, Indemnities, Liabilities: (This language is about who is responsible if the author and publisher are sued for copyright infringement by another author or publisher)
- The author warrants no infringement on other’s material, to the best of her knowledge
- However, the author should bear no responsibility for material changed by the publisher
- The Author’s indemnity should be limited to the lesser of advance plus royalties or a fixed amount
- The publisher carries an insurance policy against such lawsuits and should extend their insurance protection to include the (named) author.
- Reversion, Termination, Out of Print: (The circumstances under which certain provisions, or the entire contract, end)
- Rights not exercised in 2-3 years (or some other period you decide) should revert to the author
- Author has right to terminate the contract and have all rights revert if no copies available (not including print on demand), or the book is no longer listed in the publisher’s catalog, or in the event of the bankruptcy of the publisher
- Free Copies for Author: 20-30 copies at time of publication
- Option on Next Work: The publisher’s draft contract may require you to show them your next book first. But the author should be free to submit her subsequent work anywhere.
- Conflicting Publications: Restrictions should be limited to substantially similar works within 2-3 years
Frequent hot spots for authors are highlighted in this article from the Authors Guild.
You’ve signed a contract. Now what?
Congratulations! All that happens from here on out will be determined or at least influenced by the contract you negotiated.
In the next blog, part 3 of this series, I’ll explain how you should get your manuscript ready for publication.