The book industry is as ruthless as any other business. Some might say that it is more so, for exploiting its residual gentlepersonly image, as though no civilised person would actually expect to make a living by work. Authors should take as much care over the details of a commission as they would in any other part of the media - or more, since the relationship with the client is more complex and longer in duration.
The contracts book publishers offer are often complicated. They may refer to all kinds of peripherals, such as who supplies/pays for indexes and illustrations, who should negotiate for permission to use photographs, and much more. All items can be the subject of negotiation. Never agree to anything without being aware of its full implications. Be especially careful about "indemnity clauses" - see notes on negotiating book contracts. The Society of Authors (see the link below) publishes a useful booklet, A Quick Guide to Publishers' Contracts (£10 to non-members of the Society, free to members).
Minimum Terms Agreements
Many NUJ members write books, but the NUJ rarely negotiates terms for book writers. This is the job of the Society of Authors and, to a lesser extent, the Writers' Guild of Great Britain. In the past, these two organisations have negotiated Minimum Terms Agreements with some publishers, but not all. Book authors should find out if such an agreement exists for their chosen publisher.
- A stipulation that the author should have the right to review terms every ten years; should retain the moral rights over the text; and should be consulted about the cover design
- A commitment to publish within a specified time
- The advance on royalty (see below) to be at least 65 per cent of the amount the author should expect to earn from the royalties on the first printing of the book
- A termination clause giving the writer the chance to recover all rights if the publisher defaults or becomes insolvent and when the book goes out of print or sales fall below specified levels.
Other clauses cover minimum terms for sub-licensing rights to another publisher, foreign rights and US sales. While the agreements are effective where they apply, not all publishers subscribe to them.
Contrary to the image presented of the lonely/heroic author hawking books around publishers, many books are commissioned by a publisher who looks for an author to write to a certain specification. The writer is in law just as much the author and has the same rights as any other author; but the fact of commissioning may muddy the negotiating waters somewhat. See below.
The conventional - and preferred - way of paying authors is by means of royalties on copies sold - that is, a percentage of the cover price and therefore of "gross receipts". Often there is an advance payment. Contracts should specify that there will be further payments for film rights, foreign editions, serialisations in newspapers, television, stage or other dramatisation, and so on. The author usually retains both copyright and moral rights - but always check any contract carefully. Negotiate changes where desirable.
Much hangs on the size of the advance. If the book has a low cover price, a small first print run, or does not sell in large enough numbers for royalties to cover the advance, it may be all the author gets. Even if the book does generate an income for the author, this is unlikely to start flowing for at least a year after publication. So authors should try to get as big an advance as possible.
Royalties are a percentage, and whenever anyone sees a percentage they should ask: per cent of what?
Publishers may propose a royalty that is a percentage of "price received", also known as "net receipts" - the sum received by the publisher from the bookseller or other distributor - rather than of the recommended cover price. Publishers sell to booksellers at a discount, and distributors may get 55 per cent off. So 10 per cent of "price received" could be equivalent to 5 per cent of the cover price, or less. If the publisher insists on "net receipts", negotiate a higher percentage.
Such "price received" deals are not recommended. They are, however, fairly common in some areas, especially in educational publishing. Discounts in this case may be relatively small, which helps alleviate the problem. Authors should remember their hourly rate when negotiating a royalty advance.
Some publishers, especially in the non-fiction area, and even more especially in children's non-fiction, prefer to pay flat fees. They are frequently immovable on this, but there might be no point in moving them. If the fee is adequate, it could well be a better bet than royalties. Fees tend to be higher than royalty advances and, if print runs are too low to earn off an advance, the author could come out better off.
The big problem with fees, as opposed to royalties, is that they tend to go hand-in-hand with all-rights contracts. A publisher may say: "we thought of this book, we decided what it would be like (how many pages, how many pictures...) so we keep the rights, and we just pay you for the words." There is no more merit in this argument when it comes from a book publisher than when it comes from a newspaper.
For example, guidebook publishers rarely agree to royalties. If it is a new series the chances are the flat fee will be better than royalties as there is no guarantee the series will be a success. If it is an already established series royalties in theory would be better - particularly since a few in a series may be spectacularly successful - but the publisher will argue that they have already established the template and the reputation of the series. This is another argument for "windfall" provisions - see below. See more notes on negotiating flat fees.
Making the best of it
It should be possible to accept a fee for a licence granting the publisher rights to do specified things with the work, rather than for the sale (or "assignment") of all rights. The author would then expect extra payments for any reprints, foreign editions etc. There is no reason why a flat fee should mean the author gives up their share in massive income if the whole world adores their book. (In Germany, the law states that contracts must be renegotiated in such "windfall" cases.) But the system has been entrenched in some fields of publishing for many years.
The Society of Authors shares the NUJ's stand on copyright (see Rights and why they are important). When a publisher demands copyright assignment, authors should offer to sell instead an exclusive licence for a specific period of time - at the same time ensuring that they have negotiated safeguards to prevent the publisher from altering their manuscript without their approval. It may also be possible to negotiate refresher fees paid, for example, when the book is reprinted or for editions in foreign languages.
Flat fees paid for technical writing should be at a higher rate - as should those children's books where extensive research is often involved and most of the work may go into producing fewer words. As a guideline, calculate the fee on the basis of the minimum hourly rate for editorial work.
The Society recommends that where an agreement is made to pay an author a fee per thousand words, payment should be made for the number of words commissioned rather than the number printed; and that payment should be on delivery of the manuscript rather than on publication, which could be months away.
Packagers produce a book up to film or bound copies for a publisher to market under its own imprint. Packagers may have little flexibility in deadlines and payment. Publishers buying complete books from packagers should ensure that all contributors, such as freelance editors, have been properly paid - and if not, make the payment themselves. If a packager has not paid before the book is handed over, the author should approach the publisher immediately for payment.
Also known as collaborative writing, ghosting means working with someone else, often a celebrity, to produce a book in their name, Whatever agreement you reach about the income you get from your work, ensure that it is the publisher that pays you rather than the person for whom you are ghosting. This will avoid tensions between you and that person, and is generally a safer option. See the Society of Authors' Quick guide to Ghost Writing/Collaborative Contracts.
Authors are entitled to payments for photocopying of their work. To be sure of receiving this money, writers need to register with the Authors' Licensing and Collecting Society: associate membership of ALCS is free to NUJ members. See Rights and why they are important.
Book authors are also entitled to payments for lending of their work by libraries - simply by virtue of being the author and quite independently of copyright. See Rights and why they are important.
The NUJ and Society of Authors have set up an email network for authors of children's non-fiction: see www.londonfreelance.org/NibWeb. We are always happy to help set up another network if there are people demanding it.
The National Union of Journalists must not, can not and would not wish to dictate rates or terms of engagement to members or to editors. The information presented here is for guidance and as an aid to equitable negotiation only.
Suggestions apply to contracts governed by UK law only. In any event, nothing here should be construed as legal advice.