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Being Published Part 1: The Contract

Many aspiring writers find the book industry baffling, and the prospect of being published very daunting, however much they long for it. It needn't be, but the industry is very odd, in many ways, compared to other industries. And where you don't know what the norms are, it's very easy not to realise when someone you're dealing with is either going out of their way to be extra-helpful or generous, or not doing what they really should for you and your book. 

Since my memoir This is Not a Book About Charles Darwin [Edited to update] was published on 12th February 2019 by Holland House Books, I thought this would be a good moment to start a series of posts to demystify things. Up to now, I've mostly been published by imprints of big corporate publishers, but Holland House is an independent - by which I mean a publisher that is not owned by a bigger one*. But the fundamental task for a publisher is the same: to get people who might like your book to stop what else they're doing, notice it, buy it, and then tell others about it. [ETA] The full Being Published series is here.

Not all the details will be like this in all contracts - industry norms do change, usually to the disadvantage of the author - but I hope to give you an idea of the usual shape of things. And since this is the Itch, and we all know that all aspects of writing are entangled together, I also want to be honest about the complicated feelings that being published stirs up. Whatever the future holds for your writing, in some fundamental ways your relationship with it will never be the same again. So there will be two parts to posts in this series: the practical stuff, and how it feels.

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SIGNING A CONTRACT

You may find contracts fascinating, or horrifying. But they're made of words, and words are your medium, so it is possible to understand how they work, and you need to. The thing is, although your agent is an expert in this stuff and hopefully can explain it, and lots of things are standard without much room for negotiation, her/his job is by definition to represent what you want. In the end, you must understand and shoulder the responsibility for your decisions about the fate of your creative work.

Becoming a grown-up in the writerly sense isn't always comfortable - creativity is inherently childlike, after all - but do remember that many of the world's greatest artists were extremely shrewd, not to say ruthless, about business; there's no shame in you being the same. True, it's not always about making more money, but it is always about doing your work justice. Besides, the world is full of creative people who didn't realise what they were signing away - and are now very bitter, and a good deal poorer, than they might otherwise be. 

But, chiefly, signing the contract is time to open the celebratory bottle of Appletise, prosecco, or vintage champagne. The Happy Author Dance round the kitchen is also definitely in order. Enjoy it - make the most of it - thank your agent for wrangling it - remember the moment forever. Many writers would agree that it never gets better, in some ways, than their first book contract.

However, this moment is also, I should say, profoundly weird. For the first time in your life someone else has rights over your work. You will have ultimate veto over the text of the book, but publishing is a collaborative process; your editor's job is to help you to write the book you thought you'd already written, which his or her boss has now paid you good money for. So you must, within reason, listen to their editorial feedback and work with it as best you can.

And remember that though you are the expert at writing books, it's your publisher who is the expert at selling books. Your experience as a reader and bookbuyer is not typical, because you are a writer while the vast majority of readers are not - but your publisher lives and dies by understanding that majority. And it's your publisher's money at stake; even without your advance, that'll be anything upwards of £50,000 and maybe into hundreds of thousands. So your contract won't give you a right of veto over the crucial selling-tool which is the cover, only the right to be consulted over it - and the same pretty much goes for those equally crucial selling tools, the title and the blurb. More generally, you will not have final say in how the book is sold and promoted. If your book is your baby, in other words, having it published is very like waving it off to university. It's an adult, now, and other people may have more direct control and influence over its fate than you have.

One last effect of signing a contract is that this is real. Your book is going out there, and it's almost impossible not to start feeling twitchy about how it's read and judged by your editor, the sales team, publicity and marketing. If you thought it was hard to cope, having writing out on submission, this is both better - a contract is a huge vote of confidence - and worse, because it's heading out towards not a few dozen professionals you've researched, but thousands of total strangers with social media at their fingertips. Don't be surprised when that new self-consciousness wakes your own Inner Critic, and knocks your writerly compass off true, all over again.

PRACTICAL STUFF ABOUT CONTRACTS

As with any contract there are the central terms which you want as much in your favour as possible - which is where an agent, or the magnificent contract-checking service of the Society of Authors, comes in; the Society also have excellent leaflets about contracts which non-members can buy. Publishing is collaborative, and thrives on everyone working together to get a result that no one party would have got on their own. But your interests and your publisher's interests are not always the same, and even after a million rejections you shouldn't be so crawlingly grateful to have an offer that you accept the terms you're offered unquestioningly, or sign a terrible contract.

I should say that what I'm outlining below are norm-ish things for a trade book sold to a trade publisher - i.e. one who's selling to general readers buying in bookshops. Academic books and textbooks are different games, with different rates and norms: again the Society of Authors has experience in depth of this.

But whatever the book, a publishing contract is built on a basic deal: you, the author, grant the publisher a licence that gives them the right to create the physical or electronic book that you have written, and sell it, in certain forms, in certain places, for a certain length of time.  In return, the publisher promises to pay the author a certain amount of money per book sold: a royalty. The author does not - this is absolutely crucial - sell the publisher the copyright outright.

I should point out that publishing law is also peculiar stuff, and I am not a lawyer; but as I see it, these are the major questions that any contract should answer (there are dozens more smaller issues) for each book that the contract covers:

When you will deliver each book. The chances are you've already written the first one, but if you haven't yet, there will be dates fixed for delivering it, and then any other titles. The publisher contracts to publish within, say, two years of the book being delivered and accepted, (i.e. when they agree that it's in a publishable state.) The rest of the contract terms are probably the same for each book.

How long the publisher keeps the right to publish your book. They will want the life of the copyright, your agent would prefer five years, renewable. If the book goes out of print, or sales drop below an agreed number per year, or if the publisher goes bust, you will get the rights back in any case, and, indeed, you also get the rights back if they don't publish within that two years.

What forms the publisher will produce the book in. The main ones are: hardback; "trade paperback" which is a big, handsome paperback instead of a hardback; mass-market (i.e. smaller) paperback; ebook. Each has its royalty rates. With "digital first" publication, the idea is that the ebook garners publicity and a readership, and the book is put into paperback if it looks as if there's a market for it: this might be before the ebook is even published, but might be months later.

What other rights you sell the publisher. Your agent will try to keep some or all of these: firstly, because she/he has experience at selling them and may do a better job, and also because you won't be then sharing some of the money with the publisher: 20% would be a normal cut for the publisher to take, with 80% going into the pot to pay off your advance. If you don't have an agent, it would be a rare author who could tackle, say, selling translation rights; most of us would have to let the publisher have those rights to sell.

a) Subsidiary rights, as these are called, include: audio book; large print; serial rights; and adaptations including radio, TV, stage, film and perhaps graphic novel or even computer game. Audio and large print will not be produced in-house, but sold to a specialist company; serial rights would be for a magazine or newspaper to serialise the book; film and TV companies would buy the rights for perhaps three years, perhaps renewable, to develop a script, and then try to get it commissioned, and then actually shot; there will be clauses for more payments at each stage if it actually happens - which is very, very rare.

b) Foreign and translation rights. Again, your agent may want to keep these and sell them directly, or include them in the deal for the publisher to sell on. Publishers usually want World English Rights, to publish North American editions themselves, or sell on to a US publisher; agents would often want to sell only UK & Commonwealth rights, and keep US rights to sell directly. Whether Canada counts in with Commonwealth or with the US as North American Rights, usually depends on which deal is done first; other parts of the world may be "open market": i.e. your US and UK publishers can both sell into those territories. Translation rights can be extremely valuable if your book is one which will appeal to readers in many countries: a foreign publisher will buy the rights to publish in that territory/language, and commission the translation. With translation rights, some deals will be advance-and-royalties, some smaller ones may be a flat fee for a fixed print-run.

How the author will be paid. The basic payment is always per book sold. For physical books that's a percentage of "cover price" i.e. the price on the cover regardless of any discount stickers: 10% for hardback and 7½% for paperback is traditional. For ebooks the price they're sold at varies wildly so the royalty will be a percentage of "net receipts", i.e. what the publisher is paid by the companies selling the ebooks onwards. 25% of net receipts has become an industry norm even though, sadly, it usually works out as a bit stingier than 7½% of cover price.

There might be "escalator clauses" for an increased royalty rate, or a single payment, if sales reach certain super-thrilling numbers.There will certainly be some slightly brain-spraining arrangements about what happens if the publisher sells the books at "high discount" to a seller: say over 52%. That's usually to the wholesalers, supermarkets and big online retailers, who demand that kind of discount so they can discount the cover price to the customer drastically; it's also likely if they offer to put the book into a buy-one-get-one-free or other promotion. Your high-discount royalty will probably be something like four-fifths of your normal royalty. Did I say "brain-spraining"?

Having said that, a mainstream publisher will normally be offering "an advance". This is a sum of money which represents their best guess at what the author's royalties are likely to be for this book, paid before those sales happen. If the projected sales don't happen, you don't have to give the advance back, though you do if you fail to deliver a publishable book in the first place. The advance is also a commitment from the publisher to work to fulfil their hopes and ambitions, not least because if they gamble money on an advance, as well as the costs of publication, they must work harder to make the money back. If there's competition for the book, the advance offered will also be trying to lure the author to that publisher. 

The advance will be paid in stages: there are variations on this, but the most protracted (but very common) setup would be a quarter on signing the contract, a quarter on delivering the manuscript, a quarter on hardback-and-ebook publication, and a quarter on paperback publication. The thing to understand is that all the money a publisher actually receives when the book sells, whether it's in book sales, or in selling rights onwards, goes into the pot to help pay back your advance: you won't get any more money until the pot is completely refilled - i.e. the advance has "earned out". There should, by contract, be a separate pot for each book - so if a book has earned out its advance you should get the royalties due on further sales; the publisher should not put those royalties into the still-not-full pot of a different book.

Many authors would say they never actually get royalties, unless the book stays in print for decades - and that's fine; it shows their agent did a good job of getting the biggest advance they could. But, note that it's better for the book - which is to say, your career - to earn out a smaller advance and thereby fulfil a publisher's modest hopes, than to get a monster advance only for sales to fall disastrously short of the advance and the outsize hopes it embodied.

That's another reason for your agent to hold on to as many rights as possible: not only will your publisher not be taking their 20% off, but the money will come directly to you, instead of going into the pot at your publishers. In practice, subsidiary and foreign rights are the bargaining chips, like curtains and dishwashers when you're selling a house: a way for both parties to get more of what they want and still reach a deal.

How the author will be kept informed. Traditionally, publishers send royalty statements to their authors every six months: the statement shows what books have been sold in the preceding six months, and how much is due in royalties. If you are due some, they then have three months to send the money to your agent, who takes her/his 15% commission, and passes it on to you - but many contracts will agree that if the payment due is less than, say, £50, it can be held over till the next accounting period. If you had an advance, the statement show how much of the advance is still unpaid, and it should also summarise the lifetime sales and other cumulative figures.

There is really no excuse, in the 21st century, for it being so not-real-time, and some US publishers have actually given their authors direct access to real(ish)-time sales figures - but the book trade is notoriously slow to notice that quill pens have been phased out. One of the big advantages (there are drawbacks) to "digital-first" publication is that everything is speeded up, and while you will probably not be offered an advance, publication can happen quickly, and you should get royalties paid every month, right from the start.

Around publication, more publishers will keep authors updated much more frequently, say every two weeks or month. Mind you, some authors hate this, since there's really very little you can do to make any difference to sales this close-up, and they don't want their head and confidence messed with as they wrangle a recalcitrant chapter of That Difficult Second Book.

There's one more thing about sales in the contract. New titles are sold by publishers on "sale or return": the bookshops can buy what they like, then send back any they don't sell and get all their money back. This encourages booksellers to order lots, and put them under the noses of possible readers. So the publisher is, by contract with you, allowed to hold back, say, 10% of the royalties they apparently owe you, to cover the possibility that those sales become returns. It does all straighten out in the fullness of time, but it can be a shock on your second statement to see what had been actual sold books and their royalties evaporating, as the returns come in. (The Online Retailer who Must Not Be Named, it should be said, buys firm, and some big publishers sell all titles older than say 18 months as firm sales only, too, as returns are hugely wasteful.)

I hope that helps make things a bit clearer. The best book I know about all this stuff is still Harry Bingham's Writer's & Artist's Yearbook Guide to Getting Published. It is now rather long in the tooth, and what was a perfectly adequate short section on self-publishing when it first came out is no longer adequate at all. But the fundamentals of the economics and systems of how books are sold, and how we fit (or fail to fit) into that system, haven't changed at all, and Harry Bingham explains them extremely well, and with humour.

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*On This Itch of Writing, an independent publisher is one which is not owned by another, larger company - large examples would be Faber or Profile, smaller might be Seren, Comma, Swan River Press or The Linen Press. I don't mean  a self-publishing service company, which is a completely different thing, nor a group of self-publishing authors banding together, nor anything else where the author contributes to the costs involved. And I definitely don't mean a "subsidy" or "co-operative" publisher, which are basically vanity publishers by another name. 

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