Types of Writing Contracts and How to Approach Them

In general, there are two types of writing contracts: work-for-hire agreements and (regular) publishing agreements. Whichever you're accustomed to, this article will discuss them further.

Work-for-hire

Work-for-hire agreements are pretty straightforward. As a freelancer, you'll most likely be hired with this type of contract. You'll be required to write a certain number of words and be paid a specific sum.

Under this agreement, which is ideally in writing, the author agrees to transfer all the rights to the employer. In other words, the employer becomes the owner of the work and all of its rights.

Publishing agreements: three contract formats

There are three formats a contract can take: implied, oral, or written. The weakest of all is implied, and the strongest of all is written.

Implied contracts

An implied contract may exist due to customary conduct, such as in pro bono publications that don't pay writers but merely publish the work. In such publications, the writer is assumed to have understood this and, thus, doesn't expect any form of payment.

Oral contracts

An oral or verbal contract is one in which the parties involved have verbally agreed but lack written evidence. As a publishing agreement, it's always preferable to have a written contract. However, sometimes verbal agreement does occur. It's legal, and it's enforceable despite the difficulty of proving when a breach happens.

Written contracts

A written contract is the preferred type of contract for publishing. Today, publishers and authors can sign electronically, under the Electronic Signatures in Global and National Commerce Act (ESIGN). Once all parties have typed their names in the signature fields and included the dates, the agreement becomes valid.

Such agreements allow the publishing terms and conditions to be spelled out clearly, so both parties can enter into a deal with a clear understanding of what to expect. However, to be actually enforceable, each party must understand their contractual obligations. And there are minimal requirements, including legal age, which varies from 18 to 21 depending on the State and the so-called Statute of Frauds.

Must-knows

Before signing a book publishing agreement, familiarize yourself with these 13 must-know points. After all, you're your own first and fiercest advocate.

1. Copyright

For all works published after 1977, the copyright lasts for the life of the author plus 70 years after his or her death. The author, however, has the rights to sell them based on territory (North America, Europe, Asia, etc.) and format (print and electronic).

2. Subsidiary Rights

The author also has the right to sell their work in different formats based on specific licenses, such as dramatic performances, audiobooks, merchandise, reprints, paperbacks, translation rights and first serializations.

3. Options and Right-of-Refusal

For more established authors, a publishing agreement may include the so-called "options and right-of-refusal" clause. An "option" refers to a clause in which the publisher is provided with the right to publish the author's next book with identical terms as the previous ones. A "right-of-first-refusal" clause refers to the publisher's rights to negotiate for the second and subsequent titles.

These provisions should include dates when the proposals will be submitted and the time for review, which can be anywhere from 30 to 60 days. To better protect yourself as the author, make sure that this option can only be exercised if the publisher isn't in a breach of an agreement.

4. Delivery Date and Inclusions

The delivery date should be reasonable for the length and the topic of the book. The date should be precise, so there is no ambiguity. What should be included along with the delivery should also be clear, such as illustrations, photos, charts, tables, and permissions or releases.

5. Acceptance of Manuscript

This acceptance clause provides a means for a publisher to exit the agreement if the submitted manuscript isn't satisfactory. It's like a "kill" clause. It can be pretty broad as it depends on the publisher's sole discretion regarding what would make a manuscript is no longer acceptable. This could include that the writing is of poorer quality than expected, that it is less likely to be successful in the market due to recent changes, a worsening financial outlook, or any other reason.

6. Editorial Control

Publishers have some degree of control in the direction their manuscript will take. This being said, as an author, you should be aware of what can and can't be changed. You should ask for a clause in the contract to state that whenever the publisher intends to make any significant changes to the manuscript, they must consult the author and obtain written consent.

7. Advances

Advance payments are negotiable and non-refundable. As an example, half can be delivered on signing, a quarter on delivery of the manuscript, and the balance (another quarter) on completion. However, each publisher has their own practices and authors should be prepared to bargain.

8. Royalties and Payments

Royalties are also negotiable and differ from publisher to publisher. For e-books, the royalty rates can be anywhere from 10 percent to 50 percent net. For hardcover books, the royalty rates are around 5 percent to 15 percent, and trade paperbacks from 6 percent to 12 percent.

9. Author Approvals

Your book is your baby. You should secure the right to approve the final edit and cover before it goes to print. Your profile photo and author's bio are likely going to print as well, so make sure to have this clause for control of your public image.

10. Publication Issues

In print books, make sure to have a clause that clearly states how many copies will be published and when. Some books include ads of third-party materials, which might not look favorable to your audience. Will you allow this, and if so, what would be your compensation?

11. Warranties, Indemnities, and Liabilities

This clause states that the author warrants no infringement, no libel or invasion of privacy, and no errors in the formula. It also includes a provision stating that neither party may sue any third party for infringement without consulting the other.

12. Reversion and Termination of Contract

If the book goes out of print, all rights should revert back to the author. This clause should also include provision for the author to buy the remaining copies at a discount.

13. Mediation or Arbitration

This closing clause is crucial when there is a breach of contract. Be clear whether you choose to resolve issues through mediation, arbitration, or court. Your business attorney will be able to discuss the advantages and disadvantages of each path.

In conclusion

Stay vigilant when it comes to drafting, reviewing, and executing a publishing agreement. Read between the lines and beyond the legalese. Remember that every agreement must be a win-win and you, as the author of the work, have significant rights that no one, not even publishers, can eliminate.