New Contract Questions and Answers

Just one of Elena Bowman's excellent fantasy/sci-fi-mystery-thrillers.

New Contract Questions and Answers

Questions from author Elena Bowman 

Dear Arline:

You asked us to look over the new contract and make comments on what we saw and what we thought.  Since my daughter Christine is an Attorney, I thought she should look at it because what do I know about contracts?  She has made several suggestions and I thought I would send them along to you to see what you think. Anyway, here goes:

Under Publishing Rights: 
4th Paragraph States:

All rights in the Work not specifically granted to Publisher in this agreement are reserved by the author and those granted may be returned to the author upon request after five years from the actual publication date printed in the originally released work, or earlier at the discretion of the publisher.   

If it is possible, should the  "dates granted to the publisher" state the "actual dates" granted to the publisher, that is: day, month, year?

That's a good idea, but not too practical from our end.

First, the contract has to be signed before our work begins. That is the official "date of agreement."
We need a contract that we can use for all the authors and that is easily understood and can be downloaded and filled in by each of them.  It says "all rights not listed remain with the author," that's clear enough if someone comes along and wants to make a movie, YOU negotiate the sale of movie rights, collect the money and laugh all the way to the bank, etc. We have nothing to say about that. We are only interested in e-book and Print on Demand license to publish rights.

The publication date is printed in the front of the book, when the editing is finished. Here's the publication page for CATHARINE'S RING.

© 2011 Elena Dorothy Bowman. All Rights
Reserved (only the author's name is given, as she owns all rights)

First Electronic Edition, January, 2011
© 2011 cover art Car’jan (Karen Bowman)
Used with permission.

Publishers Note: This book is a work of fiction based
entirely on the author’s imagination. Any resemblance to
actual persons is purely coincidental. Real places mentioned
in the book are depicted fictionally and are not intended to
portray actual times or places.

All rights reserved. No part of the book may be reproduced
in any form or by any means without the prior written
consent of the Author or Publisher, excepting brief quotes
used in reviews.

ebooksonthe.net is a subsidiary of:
Write Words, Inc.
2934 Old Route 50
Cambridge, MD 21613

ISBN 1-59431-909-X or 978-1-59431-909-91
Fax: 410-221-7510
Bowker Standard Address Number: 254-0304

So the official publication date for that book is Jan. 1, 2011 and five years from that would be Jan. 1 2016. But there was no way to know when the book would be completed until it WAS finished and put up for sale. Also the contract is self-renewing after that date, so if we both do  nothing, the book continues to stay in print and be for sale.

It is easy enough to find the date listed on the copyright page. It's right there for everyone to see. It will never be the same date for any two books by one author.  The difference between when the contract is signed, and when the book is released can be as little as 30 days. It has been as long as 18 months when authors didn't return galleys and delayed completion for one reason or another, illness, travel, family crises, etc.  If we set a date for it to be completed, based on the average or expected date of release, and if for some reason cannot release it by that date, we would be unable to fulfill the terms of our own contract. Remember, it is the timing of the author's delivery of the needed materials that controls the actual release date.

We added this clause hoping to eliminate folks who jump eagerly from one publisher to another for no particular reason. We don't charge for book prep, or design services, or editing fees or typesetting and so on, but we invest our time and salaries and it costs us up to $500 to get a book ready to sell and set it up for sale everywhere.  We make less or share the same amount from sales revenue as the author does. Our company exists on the revenue from authors' sales. After all thework is done, when sales didn't meet their expectations, some authors have asked for their rights back in six months and gone elsewhere. We feel that is unfair, after we have invested time, skill and money and that they give us so little time to try and recoup that loss. Our hope with this clause is for people to think carefully before they sign.  We make a committment to our authors, and this contract outlines the work that we will do. IF they are the kind of author who wants to "skip around" this clause should discourage them from signing with us.

It also says we can let the time constraint go at our discretion. Say, for instance, Disney wanted to buy the Sarah's Landing series for a TV series, but only on condition that the book contracts be cancelled. We would certainly give you those rights back. Anyone who knows us and has worked with us, knows we would never stand in the way of further success for any of our authors. But that would be a one-time deal at the "discretion of the publisher," not a contractual obligation.

6th Paragraph States:

Under US Copyright law, the author’s rights originate at the date of creation and belong to him or her for life plus  an additional 70 years. When it expires, the author's designated assignees may renew the copyright for an additional 75 years. In the event the author, though illness or other untoward circumstances, should no longer be able to handle his or her own business affairs, the below named individual, heir, or charity is designated as assignee...

I will correct the time line on this as shown in blue above.

According to the Law Books she has, Under the U.S. Copyright Laws, the author rights originate as soon as the manuscript is written and for the life of the author plus 70 years. That for the author's designated assignees for an additional 75 years, but that there is no further renewable of 75 years after that.  Thought we should mention this.

Thank you so  much for helping us correct this. YOU are absolutely correct!

Book Production Costs:
4th Paragraph States:

Publisher will use the house’s own book design in typesetting and cover lay-out.

This seems to conflict with the 9th Paragraph

Book covers: Publisher will provide a full color cover design at no cost to the author unless the author wishes to use work by his or her own private outside cover artist. Costs of any outside editorial services or cover art the author deems necessary or proper will be done with approval of the publisher, and by private arrangement between the author and the service providers, and will not be paid for by the Publisher, but payment to any outside service provided will be the sole responsibility of the author.

(Does this paragraph mean that if the author uses an outside cover artist,  the Publisher has to approve what the cost may be to the author before the author can use a private cover artist?)

No.

What this means is that we provide the cover design and editorial services free. Other POD publishers charge for this service and one of them charges  $750 for a color cover design. If the author wants a different cover from the one we make, or to hire a private editor (many who don't speak English well, do that) the author can make private arrangements with the artist or editor and the Publisher is NOT responsible for paying those bills. How much the author pays is his or her own business. The publisher may look at the design and request refinements to meet with technical needs and production specifications, with due explanation.

It also means the Publisher must approve the final design. Elena, you often get your children to design covers and they are very talented graphic artists. Another author demanded to use as his cover a crayon sketch of a horse dropping excrement into the road that had been made by his great-grandson in Kindergarten class. We said no and eventually dropped his book from our list of planned publications due to this and his other demands. We agree that we "didn't understand his sense of humor." 

We suggested he would be much happier working with a vanity press, where he could make all the decisions himself and pay them to do what he wants.  Yet another author wanted us to pay Thomas Kinkade to paint her a cover.  We are a small family firm and neither of us are fine artists, though both of us have received recognition awards from EPIC for our cover designs. Needless to say, we use stock photos, or photos we have taken, to create most of our graphics.

7th Paragraph States:

With the exception of dialogue, Publisher may make corrections of grammar and typographical errors without the Author’s consent. US spelling and grammar rules are to be used throughout with the dictionary at www.m-w.com to be used as the spelling authority.

Question:   What if the language and grammar pertains to the way the characters speak, and changing the grammar may change the effect the author wished to make?

Dialogue is often not spoken in correct English by choice.  We expect that to happen. When Mark Twain sent The Adventures of Tom Sawyer to his publisher they started to correct his dialogue and the result was a change in publisher. But there are other distinctions of language by country. For instance, in the US good-bye gets a  hyphen, even though most spell checkers will accept it without one the dictionary says it should be there.

Terms of Contract
 Paragraph 2 states:

Publisher may, at its discretion, remove the Work from publication or distribution for reasons of poor sales, or any other reason deemed by the Publisher to be injurious to the Publisher’s or Author’s best  interests. Publisher shall give due notice to Author of any removal from distribution. If the publisher removes the Work from sale at all venues, this contract shall terminate and all rights licensed to the Publisher herein shall revert to the Author.

If the Author owns the Copyright to the work(s) involved, shouldn't returning the Copyright back to the Author be included in this paragraph if there is a termination of the Contract?

We do not copyright the work. We clearly state the author's copyright on page iv. You will always see only the author's name on the copyright page. By signing the contract the author licenses us to publish the work world wide.  We only contract for the right to publish and we define which rights are covered by this agreement, early in section 1.

 

Insolvency or sale of Publisher:
Paragraph 3 States:

If the Publisher sells its assets to another publisher who does, or plans to, market and promote books of the type and genre of the Work, the successor publisher will be bound, as a minimum, to the same terms delineated in this agreement. If the successor publisher does not, or does not plan, to market and promote books of the type and genre of the Work, all rights delineated in Section I shall revert to the Author not more than ninety days after the sale of Publisher.

All royalties due for sales of books before the transfer of ownership of the company will be paid by the Publisher. After the date of transfer, the owner will pay any royalties due.

1)  Shouldn't there be a sentence or two that states if the Publisher sells its assets to another publisher, all royalties still due to authors at the time of sale will be awarded?

Yes. I will add the above wording.

Audit Accounting:
Paragraph 2 States:


Publisher will keep accounts of all receipts and expenditures regarding the Work, and these accounts will be available for Author’s inspection. Author may, on reasonable notice, through his/her designated representative, examine Publisher’s records that relate to the Work. Such examination shall be at the Author’s expense. If any errors are found, Publisher shall pay Author any sums due, up to the amount owed Author by Publisher, within ninety (90) days.

There is a discrepancy here in the following sentence: 

Publisher should be capitalized and,
If any errors are found, Publisher shall pay Author any sums due, up to the amount owed Author by Publisher, within thirty (90) days.   Is it 30 days or 90 days?

Thank you so much for finding that, Christine!

We pay quarterly. In most cases we are paid quarterly by the various sales venues as well.  In practice, if a book is withdrawn, and we become aware of sales that happened before the cancellation, we send the author the regular royalty payment, with a note that says, "This is for sales made before cancellation."

Also due to the "relay time" from sales venues with "affiliate" sites, it may take as long as 3 months to notify every place the book is for sale and get it removed from on-line venues.

Civil Rights
1st Paragraph states:


Please initial_____. Under this agreement, both worldwide digital e-book rights and Print On Demand print rights are covered by the terms. No second contract is needed to do both.

Since this is a contract the initials POD should be spelled out. 

THANK YOU both so much!!

******************

I trust sending you this does not offend you, but since you asked for comments, these are what we thought we should point out.

Actually, this is exactly what we were hoping for, Christine and Elena. Many thanks to both of you!

Shelley is young and my hope is she will take over the company when I get too feeble to continue (many years from now, I hope) and Write Words, Inc. will be cooking along for many, many years to come. It's a great long-term plan as it gives authors more opportunity to publish, keeps books in print longer, (Books published by the Big Six almost always go out of print within a calendar year.) and we hope it encourages new writers as well.