Declaration of rights: The author lays his cards on the table for a new kind of contract by Brian Joseph Davis
Publishing is the last genteel media business. How can you tell? It’s in the contracts.
Outside of adaptation sales, most authors will never see a half-inch thick set of the onerous, even punitive, terms that are the norm in film or music production. My first contract with a small Canadian press was three pages. One day, not long after signing, my dog literally ate it. The publisher gladly sent me a new copy. The contracts for my next two books, with a mid-sized North American press, were 10 pages. Even then, I was able to negotiate without an agent* though I’ve learned not to tack contracts to the fridge where a dog can snatch them.
That said, several habits of book contracts are growing more incompatible with present realities. At the Publishr project we’ve agreed to a deadline to come up with, if not a contract, then a business agreement and that while we’re making shit up as we go along, it’s probably for the best that we at least come up with some different shit than usual.
Boilerplate book contracts tend to be rights hungry. World rights, film, television, radio, performance, translation—many publishers prefer to have them all, despite an inability to work them all. Agents chip away at those but it’s a delicate operation. And then there are rights reversion clauses. A sensible publisher will offer rights back to an author inside of 7 to 10 years if sales dip below a certain number. The big houses want the properties for life.
Richard Nash has gone into detail about why rights hoarding is as damaging as market hoarding in any other business. His solution is a three-year renewal contract. It’s brilliant and bold and I hope it becomes an industry standard, but since the Publishng project exists more in the world of R&D, I’d like to suggest something even more shocking: Think licensing. Not selling.
Selling a property and licensing a property are very different things. In licensing you’re exploiting a company’s edge in a certain territory or medium. With the Publishr project I think a licensing agreement will not only be the simplest structure it will also be an interesting negotiation of increased author control.
So, here are my bargaining points for the Publishr project…
Rights I want to license the world English digital publishing rights for the property known as The Incompetents/The Millionaire (hereafter referred to as “the work”) to the ad hoc entity known as Publishr for 18 months starting on the day of publication. After which, the agreement may be renewed by both parties. If either party does not agree to renewal the agreement is void and world English digital rights for the work revert to the author.
The world English digital rights to sell the work during any contract period may not be sub-licensed or sold to another publisher or entity. If at anytime Publishr dissolves, is sold, frozen, jailed, or enters bankruptcy, the world English digital rights revert to the author.
Freely available cross-platform presentations of short selections from the work in text, sound, or video form, are considered promotional and both Publishr and the author have the right to develop them in tandem.
All rights to characters and the right to adapt the work as a whole, for translation, film, television, radio, theatre, or web, remain with the author, until the end of time, including but not limited to, societal breakdown, apocalypse, and rise of marauding leather clad warriors fighting for dwindling resources.
The author has the right to serialize the hell out of the work for journals and magazines. No matter the platform of the journal, all monies from serialization will go directly to the author.
The author maintains ownership of the work and all rights to sell or license, personally or through agents, the rights to publish a print edition of the work.
The author agrees that no print edition be released until after 6 months of the release of the e-book. (This is, I’d like to point out, a complete reversal of current industry habits in regards to print versus e-editions. Kind of cool, huh?)
Okay, now the headache part and, quite frankly, where my cockiness runs out. As the e-book market is currently a volatile market it has been difficult to come up with a pricing plan. Until the market is settled by governments, consumer demand, or act of god (lightning bolt hitting a CEO as he holds aloft a new overpriced e-reader?) we have to start with a fixed price to develop royalty rates and profit sharing.
For sanity’s sake, let’s combine our variables. Let’s assume an Amazon-style $9.99 for an e-book price and an Apple-style 30% middleman cut. That leaves a net of $6 for each unit sold. I’d like a 20% royalty on net. That gives me roughly $1.20 per sale and leaves $4.80 to divvy up for payment to editorial, production, design, and marketing participants.
(The purely Amazon version of the above, and correct me if I’m wrong, would be .70 for me, $2.79 for participants)
Just what kind of money is involved? Most literary fiction authors that are considered to “sell well,” sell roughly 4,000 print books. I’d like to put forth the optimistic estimate of 2,000 units selling in the first six months. That would give everyone involved a healthy freelance project-sized check.
As to how to break that down specifically, well, that’s where I ask the Brett and the team to step in. Keep it clean, and please, don’t make anyone do the worm.
* Caveat. Budding authors tend to see agents as only the gatekeepers who get your manuscript read by publishers. That’s true but agents provide a far more valuable service down the line. They protect you at every step of the way. Not every author has work experience creating contracts or developing cost-volume-profit, as I do, so an agent is more than likely a must. As for agents and me, if you’re asking, I have said “No thanks” to two different agents who kind of scared me when they came soliciting—one actually had a pinky ring—and I have been turned down by an agency I approached, who were nice and said, “I’ve never read anything like it. I see it at Soft Skull.” (Richard, I thought you would enjoy that.)
My path to being published has always been to get publishers blind drunk so they promise things. It’s the personal touch, something that will never go out of fashion.