Insight by Attorney Mitch Tuchman
In a world before self-publishing—and still today—authors with the ability to write but not the wherewithal to print and sell books in commercial quantities engaged publishers to do so. Publishers in turn undertook to manufacture and distribute books—and maybe sublicense rights to create derivative works—looking to the resulting revenues to compensate themselves for their risks and costs, sharing a portion of earnings with authors in the form of royalties.
This is the essence of the bargain known as a publishing agreement, a license for publishers to exercise some or all of an author’s rights under copyright in exchange for consideration, usually monetary. As a publishing attorney or literary lawyer, I see good agreements and bad ones. I see fair ones and occasionally ones that are unconscionable.
Authors, particularly inexperienced authors, knowing what they do not know and fearful of the implications, ask for my review and commentary. I am always pleased to share what I have learned from three decades of reading and negotiating publishing agreements. Publishers, generally small ones and startups, without in-house counsel, ask me to prepare templates that are suitable to their particular business models.
This is the initial article in a series intended to introduce readers to publishing agreements.
But first, a story.
Picture an interior designer in a Southern city and a publisher in a Northern town who, having spotted photos of the designer’s work, invited her to write a book on Southern décor. He proffered his customary publishing agreement. She asked my advice. The agreement was so deficient in so many ways and so unfair in others that I suggested we select the half dozen most egregious provisions and attempt initially to amend those. The publisher agreed to a telephone conference. Came the day, and the publisher, speaking first, said, “That contract was written thirty years ago by an attorney. He’s dead now, and I’m not hiring another attorney.” End of conference.
Publishers are not in the business of not publishing. Most will negotiate. A few, like the one in the story, don’t.