Pub Rants

Rethinking Contract Clauses

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STATUS: Relaxing. Just about to do some sample page reading for an hour before hitting the sack.

What’s playing on the iPod right now? F.M. by Steely Dan

With all our recent deals, I’m definitely in contract mode this week. And there is a lot to think about.

With the Google lawsuit settlement happening, all current and future negotiations are going to have to address revenue split from Google advertising from the book registry. If the publishing house is participating that is. And don’t get me started on the whole topic of if the book is already on Google book search and is, indeed, searchable. We’ve been spending the last two weeks putting together letters for each individual client regarding their books and Google.

But that’s not all. The digital revolution is making us rethink contract clauses—even within the current standard language.

Take this for an example. My contracts manager and I got to talking on Friday about what is a rather an innocuous clause in the contract. In the royalties section, Publishing contracts always specifically state that no royalties will be paid for copies given away to promote sales or to charitable institutions etc.

Or similar language. It varies depending on house and contract.

Well, we were talking about electronic book giveaways done recently by Stanza, by Kindle on iPhone and even by Orbit—which I highlighted a couple of weeks ago (the Brent Weeks’s debut for $1).

And don’t get me wrong, I’m not remotely opposed to these kinds of promotions but I am thinking that perhaps an author needs to have a say in it and if they are to have say, then that needs to be in the contract—and dealt with in the copies given away clause. I think free ebook promotions can have strong impact but I also think the author should have input regarding how that ebook promotion might work. Little things like for how long will the promo last? How many copies will be given away? How will the publisher measure sales from said promotion? Interesting, no?

So now I’m thinking perhaps we need to ask for author approval on free copies done for special electronic promotions.

Suddenly, it makes that little clause a whole new ball game.

28 Responses

  1. Pen Pen said:

    …I’ve always felt that writers are lucky to have people promoting their book. They should be happy to have ANY copies of their work going into people’s hands!
    I mean-I get that the promotions with free books may not increase the number of books sold, but who cares! Ur book is being read by someone besides ur mom!!!

  2. Heroinhead said:

    visit my blog I think it may interest you. Here’s a little teaser of what’s in store:

    I’m a 33 unredeemed heroin addict… my father was murdered by infamous British serial kiler Dennis Nilsen… my mother is a 58 year old crackhead… best friend found dead in my room… stepmother sentenced to life imprisonment for murder… & there’s more… & it’s all true.

    I hope to se you soon, if not take care & best wishes, Shane

  3. Jane Smith said:

    I wonder where else Mr Heroinhead has left his message? I just read it at The Swivet, too.

    But back to contracts: it’s a tricky one. To play the Devil’s advocate for a moment, if you give writers powers of authorisation in such promotions then how many will refuse because they fear plagiarism, or theft of their work in some way, simply because they don’t understand how it works? And won’t that end up with many writers just not being offered such promotions because it’s too much like hard work to explain it to them all?

  4. Heroinhead said:

    Jane, I left it with as many people as I thought it could interest. It’s a little crude, but it has been a big event in my life & as I’m relating the story it’s only naturel I would like people to read it. There’s no shame to be had there.

    Take care & best wishes, Shane (Heroinhead’s not my real name.)

  5. SFWriterMasha said:

    Choice is the key. The author may choose to research the issue or not, to believe in promotion or not, to be paranoid or not, but in any case the author is given a choice.

    The other (and I think even more important point) that Kristin has made is how the promotional giveaways are going to count in sales figures. Are the free books helping sell the hardware, or is the hardware helping the authors? Either way, since the titles are not picked by the authors, they should not be discounted when sales figures are added up, since they may affect future sales and contracts.

  6. Anonymous said:

    Glad you agents are looking out for us! This “Who cares?” attitude is the reason why writers are often taken advantage of in the first place. Thanks for posting!

  7. Amy Sue Nathan said:

    It’s interesting to look inside publishing like this. As a freelance writer I only deal with “rights” and not these intricacies – yet – and I think authors can only benefit from knowing what questions to ask their agents, even if the answers aren’t clear-cut. It forced me to think “what would I want, and why.” I bet it’s different for every author.

  8. Kathleen MacIver said:

    This post is an excellent example of the value of having an agent!

    I think you’re totally right, Kristin. The last thing you want is to find out that your publisher, or Amazon, or Fictionwise, or somebody decided that giving away 1,000 copies of your book for free would be a good promotion for them. That’s a little frightening to think you’d have no say, if someone wanted to take advantage of that clause.

  9. Meg said:

    I have no clue about how much say authors should have in promotional giveaways. But as far as free ebook promos go, I think there should be a set limit for the free ones. Just like with free normal books. I know I’ve personally gotten to a promo thing late, missed the free book but ended up buying it anyways.


  10. Stephanie said:

    Thanks for sharing this Kristen! The thought of diving into the publishing world alone scares the crap out of me….so glad there are agents like you who truly care about their writers! Hopefully one day soon, I will be lucky enough to snag an agent’s attention!!

  11. HeatherM said:

    It is inspiring to see an agent fighting so hard for her clients. That’s exactly what we need in this industry, forward thinking! It’s changing fast and it’s encouraging to see an agent who is changing with it. Your clients are lucky to have you.

  12. Elise said:

    I’ve been doing quite a bit of contract work around IT Services (not publishing) and involving business partners for their say in matters similar to this. I wonder do you find Authors disinterested in the logistics of the contracts, or do many of them request to go over terms with you. Those who I am working with (internal business partners) seem very disinterested and focused only on the bottom line – how much is this going to cost me ( or in your case how much am I going to make)…

  13. Anonymous said:


    You say “contracts manager”. I’m assuming he or she is a licensed attorney? Just curious.

  14. Anonymous said:

    I have a question for you – not entirely related to e-book giveaways but related to e-books and contract. I’m published with Ellora’s Cave. EC and several other primarily electronic publishers offer 35% (and up – with EC at 37.5%) royalties to authors. I’ve noticed that print publishers seem to pay much less for electronic rights. Are agents aware of the gap and working to close it? Thanks.

  15. Aramus Genie said:

    There is no doubt in my mind that authors should have the choice. Or, at least, it should not be a default position that nobody but the most powerful authors can renegotiate. So, now I put that out there. You know my opinion.

  16. Gail Carriger said:

    So now I’m thinking perhaps we need to ask for author approval on free copies done for special electronic promotions.

    How about working a deal so it goes both ways? Plenty of authors these days are internet and social media savvy. It’d be nice if authors could offer special electronic promotions subject to publisher approval also.

  17. Susan Helene Gottfried said:

    I’ve been thinking about this all day, Kristin, and I think you’re right.

    I run a blog that tries to be a traffic cop, directing readers to book contests, as well as author interviews and guest blog posts. I also post about authors doing in-store appearances (usually in a group), or sales at publishers… I’m trying to connect books and readers. I’m also getting more authors to send me their links, so I can get them direct notice. I’ve also recently been contacted by authors who’d like to do interviews and gives, but who need hosts for these things.

    And I’ve named the blog Win a Book. Easy to remember, but not wholly accurate. Not anymore.

    Today, my team and I have posted a large number of gives for the same book. At least 35 book bloggers are involved in this blitz of a give, which is being sponsored by the publisher. This happens quite often now; you might be surprised.

    I think that these publisher-sponsored gives are a great thing, but the way they are executed could be better. Having involvement from you and your fellow agents on the writer’s behalf could really begin to harness the power of these book bloggers and the potential audience that an author could connect with.

    I know that as the head of Win a Book, if I see news about an author I like, or someone I met in person at a convention, I’m more likely to post about it and help spread the word.

    In other words: the publishers control the purse strings. But it’s the authors we as readers connect to. We speak often as the agent-editor-writer being a team. I can’t see why all of us — writers, editors, publicists, agents, AND readers — would benefit from a joint campaign to promote a writer’s book (or back list, even!).

    I’d love to share my experiences with Win a Book with you, and discuss this further. I think you’re onto something important here.

  18. Anonymous said:

    To be perfectly honest the world is a better place for authors because of agents. Thanks for all you and other wonderful agents do!

  19. Joseph Paul Haines said:

    And, on top of this, the author and agent then (in the case of the Kindle) probably need to consider if they’re going to opt-out of allowing the Kindle to text-convert.

    It seems that in this world where new media pops up daily, the agent’s job just keeps getting more difficult.

    Best of luck, Kristin!

  20. DebraLSchubert said:

    I’m amazed that you’re able to stay on top of the ongoing changes in the industry in addition to the reading and daily tasks of being an attentive agent. That’s a pretty full plate!

    I’m all about freebies, I think they’re part of a solid marketing plan. However, writers need to have a say in how much is given away, to whom, and for what purpose. Having an agent who is a true advocate is crucial in this ever-changing environment.

  21. Joseph L. Selby said:

    I work in publishing. Publishers are much more willing to express their true intentions among themselves than to people on “the other side.” Electronic rights will be a much larger deal then they are now. But when they are, it will already be too late. Low total percentage of revenue from electronic sales combined with fabricated inflated development costs give publishers the ammunition they need to set low royalty rates for electronic sales. Eventually, electronic sales WILL outpace paper sales but by that point, electronic royalties will have become a “standard” clause. Here’s how it works. Your print ms is set in InDesign. It’s sent to India for typesetting. You’ve also had that company create a template to generate xml ebooks from your finished InDesign file. You then create the ebook in whatever format you need from the xml (or from the original InDesign if it’s easier). The template automates the process so that it costs less than a plane ticket (major publishers can actually have this conversion done for free in exchange for higher page delivery to that typesetter) but the entire cost of development for the print version of the book is used to determine the cost of development. It’s all a scam. And while it doesn’t matter now, it will matter eventually.

    I know this is off-topic to your post, but it seemed like an adequate tangent.

  22. Anonymous said:

    Joseph Selby, thank you. That’s good information.

    Now if we as agented authors would refuse to accept e-book royalties less than what the exclusively e-book publishers pay — then I think we might better expose the fact that we’re on to what they’re trying to do.

  23. K said:

    I’m a librarian, and we’re struggling with the other end of the electronic publishing market at the moment. We’d really like to purchase ebooks for our library (and audiobooks, which are even more complicated if that’s possible) and we’ve been able to buy some, but trying to get the ones we want rather than whatever’s available is infuriating. Often we’re required to use the seller’s software to download or read the ebook, which simply doesn’t work with a library setup.

    Right now we use MyMediaMall as part of our library consortium, and we can only buy what they have available. All too often, that means that the first book in a series is an ebook, the second is an audiobook, and the third is an ebook in a different format than the first. Or we simply can’t get some titles at all.

    Since we purchase ebooks and audiobooks in part to help patrons who have disabilities, having a variety of formats available is a plus, but they need to be consistently available in all or most of the titles.

    The various DRM systems are a pain in the tush as well. Some websites sell a lot of ebooks and audiobooks, but the DRM only lets 3 of all the books purchased be used at a time. That might be fine for an individual, but it simply won’t work for libraries.

    There has to be a way to sell digital books to both individuals and libraries. I’d also like to see more authors who can sell digital downloads of their books directly from their own website or through a link.

  24. David Dittell said:


    In film, it’s very clear about what the window is for “giveaway,” especially as the parent company is clearly making money from these situations (driving people to other product, banner ads, directed ads, up-sales, etc.). I agree, it’s necessary to define what’s promotional and what’s exploitative.