Pub Rants

Category: Publishing Deals & Contracts

Importance Of Specifying Format Of Initial Edition

by Kristin Nelson

STATUS: Auction tomorrow. Always fun.

What’s playing on the XM or iPod right now? FADE INTO YOU by Mazzy Star

Here’s a contract tip that is both simple and yet can have a large consequence if not done.

As an agency, it’s been a long-time policy for our deals that publisher must specify initial publication format in the contract. For example, if a publisher wins a book at auction and part of them winning was a commitment to doing the book as a hardcover (for example), then when it comes time for publication, we don’t suddenly want the publisher to do the book as a trade paperback original instead.

One reason for this has to do with the author’s ability to earn out an advance. If a publisher paid a solid six-figures for something, the author is going to need the hardcover sales (with the higher price point) to earn out. Not to mention, with a hardcover initial edition, the author gets two publishing shots toward earn-out as the publisher, as a general rule, will publish the trade pb edition about a year later.

Makes sense.

Here’s another reason for specifying format of initial edition. As agents, we want to ensure that a publisher will do both a print AND electronic edition and not just publish a digital-only edition if that was not the original intent for accepting deal/contract. (Sidenote: Obviously, if an agent is selling a title to a digital-only publisher, then ebook only as initial format is understood.)

In this rapidly changing publishing landscape, and the rise of ebook sales, it is conceivable that a publisher buys a book with the intention of doing both formats and then decides later to not do the print edition and publish it only as an ebook.

I have not heard of this happening–yet. But why chance it?

Part of our job is to anticipate possible issues.

Scarier Than Halloween

by Kristin Nelson

STATUS: The last 70 degree day. Okay, I’ll admit it. I popped out early to play a round of really bad golf. The weather was beautiful. The company sparkling. Kristin shanked every shot into trees. Ah yes, I’m THAT horrible beginner on the golf course that you never ever want to play behind of.

What’s playing on the XM or iPod right now? THRILLER by Michael Jackson (I mean, duh, what else could possibly be playing on the iPod tonight.)

What’s scarier than Halloween? Writers signing publishing contracts not fully understanding what they are signing.

I figured I’d devote this entry to scary clauses in contracts that actual writers have signed.

1. The option clause into perpetuity.

Such a monster! I’ve seen this in too many small publishing house contracts to count. Any decent option clause will allow the publisher a look at the next project (usually narrowed down to specific type and genre) and that’s it. Unsuspecting writers have signed contracts where they literally have to show a publisher every work they do–even if the publisher doesn’t want it. The clause obligates them to then show their next project, and then the next project and so on.

I think any writer can get out of this (and the court will rule in the author’s favor) but probably not without some substantial cost and a good lawyer.

2. Low royalties based on net.

Don’t get me wrong, having royalties based on net isn’t necessarily egregious. It is when the publisher tries to pass off royalties based on net to be equivalent to royalties based on retail price. In other words, they offer they same as “standard” such as 10% to 5000 copies, 12.5% on next 5000, and 15% thereafter but it’s based on net receipts.

Sounds good until you calculate the math. 10% of net equals about 5% of retail price. Not exactly the same thing so do your monster math.

3. Warranties and Indemnities clauses where the author is on the hook for all the costs.

The author should only be fully responsible if they are found guilty and in breach of this clause. I’ve seen clauses where authors are on the hook for the full cost of even an alleged breach and yet they have no say in the proceedings. Oi! Even Frankenstein got a better deal.

4. Joint accounting.

Publishers love joint accounting. That means they link the monies of multiple books together. In short, an author doesn’t see a penny of royalties until ALL books in the contract earn out and only then are royalties paid. You might be waiting years and years to kill that zombie.

5. Unmodified competing works clauses.

If you aren’t really really careful, you might be legally obligated to not pursue any other writing work until the books in your contract are out of print and the rights revert back to you.

This is definitely worst case scenario but depending on the language in the contract, you might have backed yourself into this corner. Talk about hamstringing your career as a writer.

For me, in this digital age, the above are way scarier than anything that might go bump in the night.

Potpourri And Funnies

by Kristin Nelson

STATUS: This week was defined but what wasn’t on fire with gasoline explosions. Seriously, I was coming to work each day with the thought: “Can just one thing not be an issue today? Just one.”

What’s playing on the XM or iPod right now? WE GET TO FEEL IT ALL by Indigo Girls

But I can also define this week by some really cool things.

1. Got a revised cover for an author who had a hideous cover just last week. New cover is awesome! I’m so pleased and relieved.

2. My colleague Sara held a big big auction for a middle grade boy fantasy novel that went in a major deal (THE PECULIAR by Stefan Bachmann). Squee.

And the best thing ever? Today my author’s editor had her baby and get this, she named the baby boy after a character in my author’s novel for whom she is the editor.

Okay, nothing beats that. That is just “Yes Way” cool.

And because it’s Friday, how can I not share with you www.awkwardfamilypetphotos.com? I read the article in PW, had to check it out. Huge Beverage alert. The below photo was hands down my favorite. Oi!

Singing To My Choir!

by Kristin Nelson

STATUS: Monday it was 80 degrees. Today it’s snowing. Tomorrow it will be sunny and in the high 50s. And beautiful again by the weekend. Not sure what shoes to keep out or put into storage.

What’s playing on the XM or iPod right now? CHINA GIRL by David Bowie

So last week, in my status, I mentioned that we had received three covers and nixed three covers. So needless to say, it’s been nothing but cover talks, phone calls, and strategy ever since.

For the newer writers out there, an author does not get approval over covers unless he/she is at a very high level as an author. At NLA (and I imagine this is true for most agents), we always put cover consultation in the contract.

However, the definition of “consult” can be very loose. I’ve had some editors involve the author from the very first illustrative sketch to the final version. I’ve had some editors send it to the author when complete and simply say here it is. (To me, that’s not consult and I argue it.) For most editors, they are really invested in the author liking the cover so they actually allow a lot of input.

I’ve been lucky this week. The editors were fully supportive, nixed the covers and sent them back to the drawing board.

And then this morning, one of my authors sent me this link to PW’s Blog Shelftalker. I immediately read it and felt an overwhelming urge to say “Amen!” and “Keep singing my song!”

In the past weeks I’ve said everything mentioned here:

1. Misleading cover image that doesn’t remotely match the novel’s content.

Please, I beg you, for women’s fiction, no more pictures of pastoral objects like a bike or a hammock on a lovely sun porch. Debbie Macomber already has that cover thank you.

2. Same Old Cover Designs That Fit The Popular Trend.

I echo Elizabeth, please, no more covers of models in gowns, young women lying down, partial face images. When we got the ARE mailing of the “hot summer books” from a variety of young adult publishers, it was clear that any one title sent in that bunch was going to have trouble standing out. Every single one had a picture of a girl in some kind of dark, mysterious background or in a dark nature setting.

But I would like to add one to the list. No more jarringly ugly covers. I literally got a cover where the colors clashed so badly, I couldn’t figure out why somebody thought that color palette was a good idea.

Trust me, I’m not an art major or graphic designer but I am an avid reader and have seen my share of art through the ages. I know ugly when I see it.

In talking to one editor recently, I said, “all I have is my immediate gut reaction and right now, my gut says Oh Please No.

I could have kissed the editor when she said, “no prob; we’ll throw it out.”

Frankfurt–Day After And Then Some

by Kristin Nelson

STATUS: Went to Frankfurt with a cold. Had the cold during all of the Frankfurt Book Fair. Brought the cold home with me. Truly, I like to hang on to things.

What’s playing on the XM or iPod right now? SHE’S NO LADY by Lyle Lovett

I figured blog readers would get a kick out of this. Agents Agents! As far as the eye can see… Kind of like Water Water everywhere and not a drop to drink.


Jamie Ford, who was there at the Fair meeting with his many foreign publishers, said it looked like a sweat shop and wondered where the sewing machines were. Rather apt.

It’s definitely not romantic in any way shape or form. Agents sit down with scouts, territory co-agents, and editors to highlight frontlist titles as well as nice selling backlist titles that are available for translation sales. It’s not unusual for a rights person to have 12 to 18 appointments in a day, back-to-back, and in thirty minute intervals. Lunch is often optional.

And Frankfurt is not London, Paris, or Rome (not to offend any German blog readers!) but the downtown area is probably the least charming European city I’ve been to. I imagine outside of the city centre there are lots of nice spots but considering what was available within walking distance of the hotel, it was slim pickings.

To offset the rather bland Frankfurt, a day trip to Heidelberg was in order! From Left: Jamie Ford, Me, Luceinne Diver (also a client of mine) and Elaine Spencer of The Knight Agency.

Frankfurt Book Fair – Day 1

by Kristin Nelson

STATUS: All last week I was knocked out of commission by a nasty head cold. Winter hasn’t even begun. Like the overachiever I am, just getting it done early.

What’s playing on the XM or iPod right now? MR. JONES by Counting Crows

This week begins the madness that is the Frankfurt Book Fair and guess where yours truly happens to be.

For the last three years, I’ve made a point of attending each of the main book fairs: London, Bologna, and now Frankfurt. I have a foreign rights person so it’s not imperative that I go specifically so you might be wondering why I pursued this goal.

You can’t best support someone who is representing your authors until you’ve seen for yourself what the fairs are all about. It’s helps significantly to prepare the rights and press sheets so that foreign editors can best utilize them if applicable to their markets.

Also, if an editor has bought a lot of your clients, nothing beats a face-to-face meeting simply to connect on a personal level.

For this year’s fair, I have two authors with me: Gail Carriger and Jamie Ford. Both have sold tremendously abroad and have been bestsellers in several other countries besides the US.

So what does one do at Frankfurt? Lots and lots of meetings in the agents’ centre which is about the size of two football fields. And I’m not exaggerating here.

The Fair is so big, it can literally take 30 minutes to walk from an appointment at one hall to another.

To put this in perspective, it only takes me 15 minutes to walk from my hotel to the Fair.

Tonight I attended two parties–one at the German publisher S. Fischer Verlag and the other held by Hachette at the Hessischer Hof.

The Hachette party was so packed, I literally walked in and had to stifle the urge to turn around and walk back out. Elbow to elbow. I thought the chances of my finding anyone for whom I might be looking would be slim but oddly enough, it worked.

The undefinable magic of Frankfurt.

What’s Hot Down Under

by Kristin Nelson

STATUS: I was very glad to hear that New York City didn’t get as hard from Irene as anticipated but my contacts on Long Island are still without power. Eep.

What’s playing on the XM or iPod right now? UPSIDE DOWN by Jack Johnson

As I’m based in the U.S., it’s easy to get tunnel vision on what is hot because obviously I’m mostly focused on this territory. Now granted we sell a lot of projects abroad and some of our authors are wildly popular in places like Japan more so than in the US so I’m certainly aware of territorial differences but I still find it fascinating all the same.

So when I was in Australia, I had a chance to visit with a couple of editors. One publishing division was housed in a charming old Victorian-style mansion and others had sleek modern offices. I rather liked both settings.

Some things I learned took me by surprise. For example, in talking with ANZ children editors, they are still having a wonderful market for picture books. I don’t rep this genre (so please don’t send me queries for it) but I’ve heard any number of editors and agent friends who handle picture books in the US bemoan the state of trying to break out a new author in this arena. The climate is tough here but Down Under, they are still seeing really great success–even for new authors. This could partly be because the Indie bookseller market holds a significant sales percentage still in that country.

Two chain sellers–Borders and Angus & Roberson–had closed doors and editors were greatly concerned. With it went 20% of their sales market. In consequence, print runs were down by several 1000 depending on the author.

I was also surprised to see Costco in Melbourne and Sydney. I didn’t realize that company was there. (I also saw a few Targets). Interestingly enough though, neither venue sells books in Australia yet. I mentioned that it tended to be a strong sales venue in the US so I will be watching to see where that goes, if anywhere, there.

In ANZ, for young adult, dystopian has not taken off in a big way yet. HUNGER GAMES is certainly popular and they’ve had nice success with some other dystopian titles but no big break out. Well, let’s hope Marie Lu’s LEGEND will help jumpstart that trend. I’d appreciate it.

In a similar vein, paranormal romantic YA is equally hot there as it is in US (no surprise). What has gotten harder is literary YA–and that use to be a good market for them.

For middle grade, the ANZ publishers bemoaned the dearth of MG boy adventure stories (that sounds familiar!) and Wimpy Kid blew it out there. No surprise really. That’s a series that feels really universal.

In the adult realm, they publish a lot of Australian authors (as they should) and they always do it in trade paperback. There are very few hardcovers published there. They still love beautifully written stories so US imports like a recent debut THE LANGUAGE OF FLOWERS is having nice traction.

Another interesting tidbit is that an adult title called THE SLAP did mildly in the US but really broke out Down Under (and it was from an Aussie author so maybe no surprise) but it did well in Europe too.

Editors like what they call “watercooler” books. Fiction that tackles issues that readers can dig in and talk about around the proverbial watercooler.

That’s a wrap. By the way, this blog entry is not meant to be the end-all be-all of the ANZ literature market. It’s just smattering of random bits of info but I hope you enjoy it nonetheless.

Critique Workshopped The Voice Right Out Of There

by Kristin Nelson

STATUS: I’ve had many rounds of civilized tea this morning.

What’s playing on the XM or iPod right now? BEDS ARE BURNING by Midnight Oil

The worst thing you an do when traveling abroad is to succumb to the desire to go to sleep right away on arrival.

The trick to acclimating is to suck it up, stay awake, and try not to hit the pillow until about 7:30 or 8 pm. Then go to sleep and you are, more or less, on schedule for the rest of the trip.

Easier said than done really.

So I rang up Kelley Armstrong who had been on our same flight down. I figured she was valiantly doing the same thing and we could combine forces by going out to dinner.

Can’t say I was the liveliest conversationalist but I think she’ll forgive me. We talked about giving workshops. I’m doing the Agent Reads The Slush Pile workshop tomorrow. As you blog readers know, I always start with a big disclaimer. That 99.9% of what I see during the workshop will not be ready for an agent to see.

Never stops folks though. I think deep down in writers’ hearts, they are hoping to be discovered.

Kelley mentioned the same happens to her when she gives writing workshops. She always begins with her disclaimer that she can’t get any of her writer students published. They are hopeful all the same.

She also mentioned that beginning writers will often suppress their natural voices as they become so focused on the mechanics of writing. In short, one’s voice can be critique workshopped out of them if the writer has a quirky style etc. Often times her job is to allow new writers permission to discover their voice again. (Now it’s not to say you ignore craft mechanics, any good writer is going to figure out how to manage both.)

But since I don’t ever teach writing per se, I thought that was pretty interesting and something new writers need to be aware of.

Random House Gets A Clean Bill Of Health

by Kristin Nelson

STATUS: Leaving the office at 5 p.m. That never happens!

What’s playing on the XM or iPod right now? YOU AND I by Wilco

In good news, we’ve now gone through all our Random House statements from the spring with a fine tooth comb and I’m delighted to report that RH is not doing a wholesale change to their electronic book royalty rate on existing contracts; there was simply an error that was resolved promptly.

Contracts that have the royalty rate of 25% of retail will still have 25% of retail. Now, I have heard that they want to change any 15% of retail to 25% of net (which is actually to an author’s advantage per my previous blog entry) but I have not personally seen that so as far as I’m concerned, that’s simply a rumor for now.

As RH royalty statements are my fav in the biz and because they always resolve issues quickly, I’m back to happy.

Speaking of 25% Of Net Receipts

by Kristin Nelson

Status: Gotta hit the shower and the ground running. RWA, day 2.


What’s Playing on the XM or iPod right now? NEVER THERE by Cake

An update from blog entry 8-4-2011:

In good news, we’ve now gone through all our Random House statements from the spring with a fine tooth comb and I’m delighted to report that RH is not doing a wholesale change to their electronic book royalty rate on existing contracts; there was simply an error that was resolved promptly. Contracts that have the royalty rate of 25% of retail will still have 25% of retail. Now, I have heard that they want to change any 15% of retail to 25% of net (which is actually to an author’s advantage) but I have not personally seen that so as far as I’m concerned, that’s simply a rumor for now.


Since we’ve been speaking of 25% of net receipts and it would have been easy to miss, if you publish with Random House, you might want to take a look at your April statements again.


Random House decided they were arbitrarily just going to use the 25% of net receipts to calculate their authors’ eBook royalties in this last accounting round—regardless of what is stated in the contracts. There was no mention of it to agents or letter circulated to authors–that I know of anyway. I’m assuming some folks just weren’t going to notice?


Now for some authors, this may be an improvement over what they were getting, depends on what is in the contract. However, for probably the majority, Random House used to pay 25% of RETAIL price that would then drop to 15% of RETAIL price after the title earned out. (and yes I’m capitalizing the word “retail” for a reason).


We had so much fun yesterday doing math, I can’t resist doing more today.


Let’s say you have a mass market paperback priced at $7.99. (we might as well use the same type of figures as yesterday):


25% of RETAIL of 7.99 = 1.99 of royalty per sale to the author.


Oh how I loved Random House back in the day….


Now, if RH switches to 25% of net receipts and because they did, as a company, switch to the Agency Model in March 2011, the math would look like this:


7.99 – 2.39 (which is the 30% to the distributor such as Amazon) = 5.60 to the publisher

25% of net receipts of 5.60 = 1.40 of royalty per sale to the author


Yep, the author just lost 59 cents per sale. Add that up over X number of sales and that’s a lot of dough.


However, if an author’s title has already earned out and they are now at the 15% of RETAIL price, it’s actually a better royalty to switch to 25% of net receipts.


15% of 7.99 = 1.19


Since the author would get $1.40 calculating the other way, then it might be worth considering (but make sure RH is not doing any other deductions beyond what they are paying to the distributor).


This concludes your moment of math. We will now return to our regularly scheduled programming.