Book Contracts: Let’s Talk Surprises

In the final installment of her column, Kate McKean tells us about the things authors don’t expect to be in a book contract.

For our final installment of WTF Contracts, I mean, our explainers on book contracts (look here for the one on money and here for the one on rights), we’re going to talk about the things authors tell me they didn’t expect to be in a book contract and about the things they thought were obviously going to be in there but weren’t. Let’s call them contract surprises!

These are not surprises you discover after signing the contract, though, because you will have read your contract thoroughly, hopefully with the help of an agent or a lawyer versed in book contracts specifically. (Remember, your aunt the real estate attorney is not the best choice if you need help with a book contract!)

Consequences

My wise boss Howard Morhaim always says that “contracts are scar tissue.” If you see something in a contract about what happens when things go wrong, that means it probably went wrong before, and publishers—and authors!—want to make sure they’re covered the next time it happens. Contracts always cover things that likely won’t apply to your book, but you want them there in the off chance that they do. You know you’re going to turn your book in on time and you’re not going to plagiarize anyone, but the contract is there to make sure everyone knows what’s going to happen if something goes wrong.

This means: Actions have specific consequences in your book contract. If you don’t turn your book in on time, or at all, your contract says what happens. There may be a grace period between your missed deadline and when the publisher comes after you/the money, or you may have to give them a certain amount of advance notice if you know you’re going to be late. If you just don’t turn in your book, you owe your advance back, including any amount you paid your agent. (The agent does not refund their commission.) It’s not great! Avoid that!

I know you’re thinking, I heard about this author who didn’t turn in their book for six years and they weren’t in trouble, and yep, that happens. You also don’t know that they weren’t “in trouble.” That trouble could mean the publisher rejected their next book because they were so late on the last one. It could mean that their next advance was much lower because the publisher felt they lost sales because of the extreme delay. You never know what’s going on behind someone else’s book.

In most cases, if you know you’re going to be late, you will talk to your agent and editor and come up with a new schedule and it will be fine. They do not usually hunt you down at 12:01 a.m. on the day your book is due. But those clauses in your contract can be used if they’re needed, and if they’re really needed, they will be used.

Regarding Your Next Book

Most contracts have an option clause that says you agree to show your next book to your publisher and they get to read it first and exclusively, for a certain period of time. A contract also usually says when you can send it (sometimes it’s not anytime you want, but after your first book is done or maybe even after it’s published), what kind of book you need to show them (e.g. a fantasy novel, memoir, or nonfiction), and what materials/chapters/proposal you need to provide. It should also say how long the publisher has to consider your next book and what happens if they reject it or don’t respond in time. It should not say something to the effect of If we don’t buy your next book but another publisher wants to, you have to let us try to match that offer, and if we do, you have to give the book to us. This is bad! Don’t agree to that! (See, this is why you often want an agent.)

It’s important that your option clause specifies what kind of book you owe the publisher, or else you have to show them anything you write next. If you sold the publisher a novel but then you want to write a nonfiction book next and your clause doesn’t specify what kind of book the publisher gets to see, you have to show it to them even if you were talking to another editor about it. This can really prevent you from writing in multiple categories, if that’s what you want to do, and it can slow down your career. There are many things to consider about this aspect of the option clause, so it’s best to discuss this with your agent when they’re negotiating your contract.

There’s also a competitive-works clause in your contract, which says, broadly, that you can’t do another book that would compete with the book you just sold your publisher. The first draft of a contract that you or your agent may get likely has a very broad competitive-works clause, which says that basically any book you write, even if only kind of similar to your first one, could be a competitive work and you can’t do it without asking the publisher. That’s not great! Agents work with publishers to make this clause as narrow as possible or take it out all together. The publisher wants this because they think it gives the book they just bought the best chance of making money. It’s not great, however, for an individual author’s overall career.

You Can’t Always Do What You Want

I’ve had plenty of clients come to me and say, “I have a great idea about how to promote my book!” And I then have to tell them they can’t do that thing because they gave the rights to the publisher to do that thing. Most commonly, this includes (but is not limited to) putting a chapter (or more) of the book on their author website (without permission); making stickers/postcards/etc. out of some art from the book or the cover, especially if the author didn’t create that art; and recording a bit of audio of the book. Now, very often, if the author wants to do a cool thing to promote the book and they talk to the publisher about it, there’s a very good chance they can just do it! But the author can’t automatically do anything they want after they sign a contract. This applies double if the author wants to sell something, like those stickers. Make sure to check with your publisher first.

The Things That Aren’t There

There are plenty of things authors are surprised to learn are not in their contracts. For example, you don’t always get final approval of the book cover in the contract. The author most often will only get consultation on the cover, because book covers are important for marketing, not just aesthetics. Authors usually don’t get any approval of marketing plans, nor will the publisher commit to specific marketing obligations in the contract. They won’t, for example, agree to send you on a six-city tour in the contract. They can’t promise to get you on the cover of People magazine in the contract (or at all). Publishers won’t guarantee sales or royalty earnings in a contract either, of course, but I’ve certainly had authors ask about it. The only money you’re guaranteed in the contract is the advance, as long as you do what you said you were going to do and write the book.

Book contracts are both highly specific and generally similar. There are going to be things in your book contract that aren’t in your friend’s, and vice versa. It might be very valuable to you to reserve the foreign rights to your novel, but it’s much more common for your friend writing a graphic novel for their publisher to control foreign rights. Your option clause might be very detailed and specific, and your friend’s might be more general, and that may work great for them and their career. But Kate, you may ask, why am I reading all these articles about contracts if they’re all so different? Because, I say, knowing what a book contract might include is the first step in knowing what’s an important issue for you. This way, with the help of an agent or lawyer, you can ensure your contract works best for your book.