Disclaimer: I dislike negotiating publishing contracts with lawyers. It seems only fair to get that out in the open from the get-go. Also, I can do things I dislike, so I would never discourage authors I work with from having lawyers look at their contracts. Also, not all lawyers are heavy-handed in their negotiations, and sometimes I’m pleasantly surprised.
With the caveats out of the way, contract negotiations can and do get tense. Alienation can ensue. And not just on the part of the publisher, of course. Authors get alienated, too. For me, contract negotiations are a first impression, and as such, how contract negotiations proceed can sometimes throw up cautionary flags. I’ve walked away from a project or two I wanted to publish because of how an author behaved during a contract negotiation. Just this month, I was *this close* to the line, but the author and I had a heart-to-heart, and we both felt heard, so (finally) we closed the deal. But it got me thinking that this post is past due. So here are my five tips:
1. If you hire a lawyer, get yourself out of the back and forth.
If your lawyer is the one making the changes, let your lawyer be the one to communicate with the publisher. Don’t be the go-between. This gets you out of the fray if things get tense. It’s especially important if you don’t really understand your lawyer’s change/s or why they’re requesting it/them. If you’re paying money to have a lawyer look at your contract, let your lawyer do the whole job and be the liaison. If I’m going to get irritated with lawyers’ changes, it’s much better that any emotional tension stay between the me and lawyer.
2. Avoid making discretionary changes.
Whether you hire a lawyer, or ask a friend to review your work, or you make your own changes to a contract, avoid subjective changes. This involves things like capitalizing or lower-casing words, adding or deleting commas, changing a word or sentence because you think it would sound better if worded another way, or (worst of all, in my opinion) moving entire clauses to other places in the contract for no reason whatsoever other than a sense that things would be better placed elsewhere. (Yes, all of these things happen, and not even irregularly.) Perhaps authors are prone to making discretionary changes because they’re writers, but keep in mind the golden rule of contract negotiation: you’re negotiating the terms, not the language.
3. Understand what you’re retaining and why you want it.
One of the most common things I see in contract negotiations is authors retaining rights that they’re never going to exploit. For instance, an author may ask to retain all translation and foreign rights, meaning they’re only giving us the right to publish in North America. What they (often) fail to grasp is that this prevents us from selling our edition (in the English language) abroad in any capacity. This limits sales and limits earnings. It only makes sense to retain rights that you intend to exploit. If you don’t have an agent and you don’t have any intention to sell your a) translation rights, or b) subsidiary rights, then at the bare minimum ask the publisher what their intentions are when it comes to selling those rights on your behalf before you retain them for yourself. If they’re going to exploit them and you’re not, then it doesn’t make sense for you to withhold them. If you want a deeper read on this topic, I’ve written more here.
4. Treat your negotiation with care.
Lots of times contract negotiations can seem like something just to get through, so I see a lot of shorthanded notes and hasty deletions. Too many assumptions, not enough questions. It’s worth noting that publishers are attached to their contracts. They also know them inside and out. So when authors come blazing through our contracts with their lawnmowers, we don’t particularly appreciate it. When authors rewrite clauses or add language to a contract that’s been vetted not only by lawyers, but also by merit of hundreds of other authors signing the same contract, I have . . . feelings. So, take care—that’s all. Your eyes are not the first eyes on the thing you’re reviewing, and it’s worth considering that your publisher may be attached, dare I say even proud, of the contract you’re about to sign.
5. Work with lawyers who know publishing.
I’m just saying, in my twenty-plus years of negotiating contracts, I’ve interacted with a lot of lawyers who make unreasonable asks and/or rewrite contracts for no apparent reason other than to add language and (in my opinion) over-complicate the process. Publishing lawyers get publishing contracts. Other kinds of lawyers seem to me (again, sometimes) to be looking for reasons to clock billable hours. I recommend The Authors Guild. They are lawyers, they know publishing, and they’re not exploitative—and they will review contracts as a membership benefit. When hiring a lawyer, ask how many publishing contracts they’ve negotiated. It matters that they have experience.
It's super important that authors do due diligence when it comes to contracts. It’s appropriate to get legal advice. It's appropriate to protect yourself. It’s also the case that if you go into a negotiation with animosity and distrust, you might be met with animosity and distrust back from the very people who are meant to guide you through your publishing journey for the next months and even years.
Your publisher is not your enemy, and if you have the feeling that they are, you should abort your mission and choose a different partner. I’ve seen with my own two eyes that when it comes to negotiations, some people believe that if things aren’t hard, or if you’re not fighting, then you’re somehow capitulating. It shouldn’t be that way, and it’s better to lead with questions and curiosity than excessive strikes and rewrites.
If you’re working with a reputable publisher, your contract should be very straightforward, with rights and clauses and terms that your publisher will be used to negotiating. Contracts exist to delineate who’s responsible for what, and also what will happen in extreme circumstances. So, understand it and advocate for yourself, but also remember what they say: You never get a second chance to make a first impression.
Hi Brooke. Another great piece! I teach in-depth webinars about understanding book contracts, including how to work with publishers. I talk about points 2-5 in detail, so I'm delighted to see you offering similar advice. Makes me feel good. I'll just add, from an author's perspective that publishers also make a huge impression during contract negotiations-- both with how their contracts are written from the outset and how they respond to questions or requests. I was so excited when SWP accepted my first manuscript, but even more so after I saw your contract and how honorable it is (I've seen hundreds in my career, and I'm married to an IP attorney). I was even happier signing after I asked for a change regarding the noncompete which you agreed to right away. It's wonderful when you're excited to work with a publisher and the contract makes you feel more so, not less-- that's what SWP has done for me. Thank you!
I used Author's Guild for an audiobook contract and they were so helpful. I ended up getting a better advance, too.