Pub Rants

Category: publishing contracts

When Contracts Directors Have A Sense Of Humor

by Kristin Nelson

STATUS: Off to a terrific start today.

What’s playing on the iPod right now? STAY UP LATE by Talking Heads

From a lot of my posts lately, I imagine that you think all my recent conversations with contract directors at the big houses have been contentious.

In reality, that hasn’t been so. I have to say, that I personally like all the contracts directors at the major houses. They are under the gun and yet they’ve handled differences of opinions with good temper, grace, and with reason—even if I don’t agree with their stance.

In fact, one of the contract directors from a big six house even made me spit coffee and sputter with laughter in our last conversation.

When I mentioned that I didn’t agree with the 25% of net publishers were currently sticking with and that I was not inclined to accept the same percentage if we were to negotiate an expanded or enhanced electronic book, the director, totally deadpanned, quipped in return that I must obviously share his opinion that the split percentage to the author should be lower for an enhanced ebook as they are more expensive to produce.

I was so surprised that I just burst out laughing as did my contracts manager. You gotta respect a contracts director with a sense of humor. Grin.

A Difference of Opinion I’m Sure

by Kristin Nelson

STATUS: Just a twinge of a cough remains. Kristin—9 flu—1

What’s playing on the iPod right now? HOME by Daughtry

Rumor has it that several of the big 6 publishers are coming out with new boilerplate contracts in the next couple of weeks. I know for sure that Hachette is working on a new one as is HarperCollins.

With these new “boilerplates,” I already know there is going to be a significant difference in opinion about what a Publisher thinks is a boilerplate item and what an Agent will consider as a boilerplate item versus a right that needs to be negotiated up front.

I have a feeling (call it intuition—snort) that the definition of what constitutes an “enhanced ebook” or a “multimedia product” (that’s a new catch phrase I’ve been hearing as of late) will be at the center of these new boilerplate contract debates between publishers and agents.

I, myself, have yet to see a new “boilerplate” contract but am waiting with bated breath… Oh being an agent is just daily fun.

Burning Question about Agency Commission Model

by Kristin Nelson

STATUS: TGIF!

What’s playing on the iPod right now? BEEN CAUGHT STEALING by Jane’s Addiction

As you can imagine, I’ve been having a lot of conversations with various Contract Directors at all the major publishing houses as of late as we navigate contract negotiation.

I was in discussion with one person from a Big 6 house and we got to talking about returns with electronic books. Were they going to be allowed on the agency commission model that publishers have with entities like Apple?

According to this contracts person, the answer was yes.

So I asked what I thought was a rather pertinent question. I said, “if Apple allows returns and they’ve already deducted the 30% agency commission from the sale, how will the publisher know that the commission should have been refunded to them for the returned-sale of that title?”

Contracts person: “Good question.”

Glad I could be of some help…

We Interrupt This Q&A

by Kristin Nelson

STATUS: Off to Italy tomorrow but I will try and blog.

What’s playing on the iPod right now? TELL ME WHAT by Fine Young Cannibals

To give you a real rant. Today I found out that Penguin is no longer sending out final contracts electronically in locked PDF.

Why? Because some unethical agent decided to tamper with the e-lock and then make unauthorized changes in the contract before sending on to a client for signing.

Now the rest of us have to go back to the stone age of having things mailed (unbelievable!) to us.

Unethical agent, I want to hunt you down and slap you upside the head.

Now, I have argued with Penguin to create an “approved agents list.” I’m sure there are many agents like me who have more than proven that we don’t contract tamper and can be trusted with a locked electronic PDF for final contract.

I’m so annoyed by this, I can barely type. And other publishers, please don’t take this step backwards. There is a lot of technology out there that could resolve this issue. Use it. Going back to snail mail is costly—and I do mean in actual dollars.

If You Haven’t Got Anything Nice To Say…

by Kristin Nelson

STATUS: Springtime in the Rockies! It was 65 degrees and sunny today and I must admit, I left the office at 2:30 in order to take Chutney out for a run and enjoy the day. In exchange, I’m working all evening.

What’s playing on the iPod right now? TOMORROW PEOPLE by Ziggy Marley and The Melody Makers

Come sit next to me!

Last week, I pretty much spent every entry talking about contracts but today’s discussion tops the cake.

Just recently, a publisher made an offer for the next books from one of my clients. Excellent. But this publisher is also one of the big 6 that have announced that they are moving to the agency commission model for the sale of electronic books.

As ya’ll know based on my math lecture about net receipts last week, there are some key questions that really need to be answered about electronic books and exactly what 25% of net is going to mean.

So my contracts manager and I insisted on talking to contracts director before closing the deal.

The publisher’s response (and this is a paraphrase): they have no idea what the definition of net receipts will be and feel uncomfortable accepting the language we have put forth. Their suggestion? If the author would like to put the contract on hold until the company makes a corporate decision on this, then the author is free to do so. However, the publisher has no timeline for when this will be resolved.

Snort. That’s the solution?

Publishers. The world is changing. Quit dithering. We agents have to negotiate contracts now so maybe get on this. Telling us we can just put it on hold until you get your act together isn’t an alternative.

Rant over.

Redefining Net Receipts Where eBooks Are Concerned

by Kristin Nelson

STATUS: Lots to tackle today so getting the blog entry out early.

What’s playing on the iPod right now? THE BLACKEST LILY by Corinne Bailey Rae

And the fun of how electronic books are changing the publishing contract continues. Today, boys and girls, we are going to talk about net receipts in Ms. Kristin’s neighborhood.

In light of this new agency commission model where Amazon and Apple will no longer carry the product per se but have an agreement to sell titles via their site in exchange for a 30% commission on the sale (see earlier post to get up to speed), suddenly agents need to re-examine the whole definition of net receipts in publishing contracts.

The definition of net receipts (or amount received) for an electronic book is not the same as the definition of amount received for a physical book.

With the agency commission model, the biggest question is this. Will publishers deduct the 30% commission paid or will they absorb it when calculating net receipts and determining what is the total used to pay authors their 25% of net receipts? One major publisher has stated that their current thinking is that the royalty would be calculated BEFORE deducting commission. In current negotiations for contracts in play, I’m not seeing publishers as excited about redefining net receipts this way.

So what does redefining net receipts mean to the author? Let’s do a little math!

Let’s say a title will sell on Amazon or Apple’s iPad for $10.00 (might as well make it easy math).

Now let’s look at the difference between net receipts if the publisher absorbs the cost of the agency commission versus if they don’t in defining and calculating net receipts.

If Publisher absorbs commission:
eBook price: $10.00
25% of net royalty (all the rage with publishers as of late)
Royalty to author: $2.50 per title sold

If Publisher does not:
eBook price: $10.00
$7.00 received by publisher (after 30% sales commission to retailer)
25% of net royalty
Royalty to author: $1.75 per title sold

Yep, definitely worth the time to find out exactly how this term is going to be defined in the contract when it comes to electronic books.

eBooks and Royalty Statements

by Kristin Nelson

STATUS: Remember when I said we were reading a lot? Yeah, that was before the Olympics began. Bad Kristin but I can’t tear myself away from the TV in the evenings!

What’s playing on the iPod right now? HOLDING BACK THE YEARS by Simply Red

As you know from a previous post, I’m not all that enthusiastic about this move by Publishers to switch an eBook royalty rate based on retail price to a royalty percentage based on net amount received.

As I ranted about this topic previously, my issue is the lack of transparency on the statement. It’s impossible to track actual amount received by the publisher unless you can get more detailed accounting info

So what have we been doing? Asking Publishers to included language in the agreement that contractually obligates them to provide more accounting information upon request. The only way to verify the accuracy of the Publisher’s stated amount received is to get info such as a list of customers purchasing and disseminating the electronic product, the business model used (wholesale or agency commission or maybe something not even invented yet), the actual retail price, the discount, any deductions made to establish the Amount Received figure from which the royalty calculation will be based.

And I could go on.

Notice that yet again, the onus is on the author/agent to go out of their way to request this information. It won’t necessarily or automatically be stated on the statement.

If we are having such a revolution in publishing over the electronic book, is it too much to ask that publishers have a revolution regarding the info provided on a statement? You got to change the system anyway to account for these new royalty structures. Why not make the whole reporting process more transparent. Heck, why can’t all this info be readily available online and the author can access it at anytime.

Now that would be a step in the right direction.

Bonus Clauses—Another Item to Re-evaluate With eBooks?

by Kristin Nelson

STATUS: Anita, our new assistant, started her first day of work today. Hooray! We have so much work we could pile on but we are trying to be reasonable. Both she and Sara have colds. Oi! Knock on wood that I don’t catch whatever is going around.

What’s playing on the iPod right now? SWEET EMOTION by Aerosmith

Here is an interesting thought.

Agents will often negotiate bonus clauses with publishers. A popular one is a bonus (increasing the advance) for X number of net copies of the title sold during a certain period of time (12 months being a popular number).

Currently, the publisher ties the bonus to the specific edition. For example, if the title is published as an original trade paperback, then the bonus will be tied to X number of copies of the trade pb edition sold within that time period.

Make sense?

Well, eBooks are changing the landscape and are often released simultaneously with the original edition (be it hardcover, trade pb, or mass market).

So my thought? Why not count and include the sales of the electronic books in the total that is triggering the bonus clause? True, it is considered a separate edition but it’s rather unique in that it mirrors the original edition and doesn’t need a separate performance creation like, let’s say, an audio book.

Brilliant! Oh I’m sure Publishers will be stampeding to this point of view (not) but it is an interesting discussion, no?

My guess is that now we need to start creating bonus language specifically for sales connected to the eBook—especially as this format becomes more prominent and the sales start catching up or outstripping the other main format editions.

Fun fun!

You Need A Reserve For Returns For eBooks Like You Need A Hole In Your Head

by Kristin Nelson

STATUS: I had a To Do list a mile long but I buckled down and just concentrated on it. The fact that I only got 70 emails rather than my usual 120+ today made a big difference in accomplishing what I did.

What’s playing on the iPod right now? HEY, SOUL SISTER by Train

It’s been awhile since we’ve talked about contracts. I know. Your favorite thing but to be honest, contract language is ALL I’ve been thinking about for the last 3 weeks since Apple made their big iPad announcement, Amazon pulled the links for Macmillan titles to flex some muscle, and publishers such as Macmillan and Hachette moved solely to an agency commission model for the sale of eBooks. (See sidebar tags for “publishing contracts” and “electronic books” to get up to speed on these past events.)

The hardest part about being an agent right now is figuring out what dang language to put in the contract when terms are changing, literally, every week.

But today’s topic is a no brainer when it comes to contract terms that need to be revisited in light of the ever-changing eBook landscape.

Publishers, in the old school world of actually selling physical copies of the book, like to hold a reserve for returns on any given title. This reserve is usually specified on the royalty statement (although some publishers do not include that info and then we as the agency have to specifically request it). Because publishers sell books to booksellers who can then later return them for full credit or refund, they have to hold a certain percentage in reserves to account for the possibility of all these returns. Publishers like to hold reserves on each specific edition of the title.

Got that?

But here’s the interesting thing. Some publishers are holding a reserve on the eBook edition.

Right. Explain to me how somebody would return an electronic book. They can’t. eBooks are non-returnable so why would a publisher be holding a reserve for returns on an electronic edition?

What a good question. They shouldn’t be. So now we’ve implemented policy here at the agency to make sure that no reserves are being held for eBooks on any past contract where that was not specified (which means we are having to ask when each roy. statement arrives and make sure reserves are not held). Oh what fun!

And on future contracts, we are including specific language that no reserves will be held on the electronic edition. And yes, if you don’t specifically raise a ruckus about this, some publishers are holding a reserve on the eBook (not all, mind you, but some are).

Oh, I’m going to be ranting about this kind of stuff all week so stay tuned. Those of you who are agented authors, aren’t you glad somebody is worrying about this stuff on your behalf?

Agenting 101: When The No-Compete Clause Comes Into Play

by Kristin Nelson

STATUS: TGIF! Have a great weekend. I plan to.

What’s playing on the iPod right now? CAN’T GET YOU OUT OF MY HEAD by Kylie Minogue

Currently, Publishers consider non-multimedia electronic rights as part of the “standard” package of the grant of rights when buying a work from an author.

For years, I often held electronic rights (back when publishers weren’t paying attention to it) but now, publishers will walk away from deals unless eRights are granted. Very few authors, especially the new or the debut, are willing to walk away from an offer over a right that makes up such a small percentage of current overall sales—at least in today’s world. Who knows about 10 years from now.

But here’s another interesting tidbit. Let’s say you are successful in keeping electronic as a reserved right. Publishers are getting stricter in the language they are using in the no-compete clause of the contract and that language may make it impossible for you to exercise that reserved right.

I’ve talked about the no-compete clause here in my Agenting 101 series.

But just to jog your memory, here is a sample of language from a no-compete clause in a publishing contract (and since I lifted it from my previous entry, this language is easily several years old).

“During the term of this Agreement, the Author shall not, without written permission of the Publisher, publish or permit to be published any material based upon or incorporating material from the Work or which would compete with its sale or impair the rights granted hereunder.”

So what am I trying to say here? I’m telling you that even if you are able to reserve your electronic rights so as to as to set up your own deal with Kindle or Scribd (or whoever), your publisher could make an argument that sales of your reserved electronic right is materially damaging the sales of their licensed rights.

Ah, I see the light bulbs going off as you get what I’m saying here.

We’ve particularly seen this over the last two years when reserving comic book/graphic novels rights only to fight on the no-compete clause to make it even a possibility for the author to exercise those rights.

Unless you are embroiled in publishing contracts on a daily basis, very few authors make the connection of how these two very different clauses (grant of rights and the no-compete clause) clearly impact each other. Once again, I hope I’ve shed just a little light on it.

And on that lovely note, have a great weekend!