Receiving an offer from a publisher is an exciting moment. Nothing quite compares to the thrill of knowing that one day your work may be seen in print. Once you receive the publishing contract, what do you next? You read the contract carefully as your creative work represents a valuable intellectual property asset which is important to protect.
A publishing contract is more than an advance and a promise to get your book on the shelves - it represents the start of a long-term commercial relationship. It is important that you have a complete understanding of how your IP will be used and distributed, and what controls you have in that process.
Before you sign your contract, it is best to get legal advice. In the meantime, use the below checklist to assess the different features of your contract. These items will help identify whether the deal is reasonable or if the contract needs some work before you can sign on the dotted line.
Identify the term of the contract. Are you granting rights to your work for a fixed duration, or until your rights expire?
Are you granting your publisher exclusive or non-exclusive rights in your work? Consider how this may impact any existing relationships or creative projects.
There are generally two ways in which an author’s copyright can be dealt with under a publishing agreement: a licence or an assignment. If your contract includes an assignment, this means that you are transferring ownership of the copyright subsisting in your work. You need to ensure you understand the full scope of consequences before signing away your rights. If you are licensing your rights, what limitations or restrictions are put in place?
Your publisher might expect to receive confidential or personal information from you. Is this adequately protected under contract?
Are you being paid? Most publishing contracts will include details of an advance as well as royalties, typically calculated as a percentage of gross or net receipts. If your contract requires you to pay your publisher, this is a red flag.
Have you obtained all necessary permissions and clearances to allow your publisher to go to print? A publisher will normally expect that any third-party copyright material in your work (including quotations, photographs, or illustrations) has been obtained under license.
The rights you grant to a publisher can be divided out and distributed in any number of ways, including by territory, language, or format. Look out for a schedule of subsidiary rights and have to think about whether you would like to reserve any of these rights to control independently. Commercial publishers tend to acquire broad and long-lasting rights including audio, translation, and English language reprint rights.
Your publisher will expect to receive a warranty that you are the sole owner of the copyright subsisting in your work and that it will not infringe the rights of another person. If you’re not confident that you can give these warranties, you should seek a risk assessment of your work. Also, make sure the warranties are not too excessive or onerous on you.
Look out for a basic reciprocal indemnity clause. An author is expected to indemnify their publisher for any loss incurred resulting from a breach of the contract. However, it is not unreasonable for a publisher to indemnify you against the publisher’s use of your work. Take a close look at the indemnity you are expected to provide.
Ask your publisher in what circumstances you can expect your rights to be returned to you. What happens if the book goes out of print? What if they decide not to publish after all? If the contract does not set out when your work will be returned to you, this is another red flag.
For any publishing enquiries, please contact the Intellectual Property team at Sladen Legal. We are at our happiest working with creatives to protect their copyright.
Sladen IP is dedicated to assisting creative and inventive individuals and businesses in protecting, commercialising, maintaining and enforcing their intellectual property rights.
Our team can work with publishers, agents and authors alike to manage the licensing of literary or other creative works, together the sale or transfer of copyright subsisting in these assets.
To discuss further or for more information please contact:
Michelle Dowdle
Principal Lawyer
T +61 3 9611 0114 | M +61 408 674 256
E: mdowdle@sladen.com.au
Laura Bentley
Associate
T +61 3 9611 0120
E: lbentley@sladen.com.au