When Writing Kills: Red Flags in Publishing Agreements – Part 1

The Publishing Agreement Offer

Another late night of writing. Your alarm goes off, you stumble out of bed to grab a cup of coffee, then sit down at your computer. Another day of editing your manuscript… Hold on! You have a new email, and it’s from a publishing company. It looks like an offer! All those long hours working on your novel, editing and re-editing it, getting feedback from family and friends, shipping it around to publishers, and finally it looks like your immense efforts have paid off. Someone actually wants to publish you!

All that’s left now is to quickly scroll to the bottom of the publishing agreement that was attached to the email, sign it, and you’re off to the literary races… But wait! Don’t sign that agreement just yet!

Pitfalls in Publishing Agreements

What you need to know, unfortunately, is that not every agreement you receive is going to be beneficial and worth your commitment, time, and resources to enter. In certain cases, terms can be heavily one-sided in favour of the publisher and so detrimental to the writer.

In cases such as these, we wouldn’t advise the writer enter the publishing agreement unless the terms are amended. This blog will identify certain red flags that a writer may find in publishing agreements.

(Note: The seriousness of red flag provisions can only be determined on a case-by-case basis. If you have questions or doubts about the terms of an agreement you have received, we recommend you reach out to an entertainment lawyer for advice.)

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The Grant of Rights

This is one of the most important clauses in a publishing contract. In order for the publisher to do its job they need the rights to publish and market the property. However, the extent of the rights they are asking for may be more extensive than what they need.

Is the grant limited to a single work, or does it extend to sequels, prequels, spin-offs, and adaptations (film, tv series, stage productions, etc.)? What is the term of the grant of rights? Is it a set number of years or is it the duration of the copyright (your life plus 70 years)? What is the territory in which the rights are granted?

Always try to limit the publisher’s rights to those that are necessary to enable the publisher to do what they are promising to do.

The Publication Property

What work(s) does the publishing agreement cover? Is it a single novel, a trilogy, a graphic novel, an ongoing comic book series? This must be clearly identified in the agreement. As mentioned above, does the agreement cover speculative works – e. g., sequels, prequels or spin-offs that have yet to be written?

If so, try to limit this right to a first right of negotiation, which will give the publisher the ability to negotiate for the rights to these other works but does not automatically grant them. A right of first negotiation is more flexible than a first right of refusal, which is often found in publishing agreements. A right of first refusal gives bargaining power to the publisher. If the publisher determines it wants to sign on for these future works, you’re obligated to do so.

Copyright Owner

Copyright in the work should always be registered in the writer’s name!

Publishing Contract Obligations

The specifics of how a publishing company publishes works varies greatly from publisher to publisher and from work to work. Listing the publisher’s specific obligations in the publishing agreement is a necessity and, if the publisher includes the list, it is a great sign that the publisher is writer-friendly.

You will have tangible benchmarks against which to evaluate the publisher’s efforts. The absence of a list of the publisher’s obligations means that the publisher is free to publish the work(s) in any manner it sees fit.

Publishing Advances

An advance is another term that may indicate a publisher is more writer-friendly. Most advances are recoupable, which means the advance will be retained by the publisher from monies that would otherwise be paid to the writer (e.g., from royalties earned).

One of the benefits to a writer of an advance (in addition to putting money in your pocket on signing the publishing agreement) is that it creates an incentive for the publisher to work hard to publish and sell the work, to recoup its advance. If there is no advance, the publisher has little or nothing to lose if the work doesn’t sell.

Part 2

Part 2 of this series on red flags in publishing agreement looks at reversion of rights, termination clauses, monies held in reserve, and vanity publishers.

Conclusion

Receiving an offer of a publishing agreement is exciting, but before you sign it and pop the champagne, make sure that you have read the agreement carefully, understand its terms, and are confident that it is a deal worth entering into. The last thing you want is to have your work tied up in an unreasonable and onerous agreement that you can’t get out of.

For more information, we recommend you take a look at another Edwards Creative Law blog on publishing: Collaborating with Artists and Other Writers

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© 2022 Edwards Creative Law, LLP

Updated to August 8, 2022

Edwards Creative Law is Canada’s Entertainment Law Boutique™, providing legal services to Canadians, and international clients who partner with Canadians, in the Music, Film & Television, Animation, Interactive Digital Media, Game, Publishing and Software industries. 

For more information or to set up a minute Discovery Call with one of our entertainment lawyers please feel free to Contact Us.

* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.

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