Writers Be Wary: Publishers and their Contracts       

Most writers, even if we begin writing primarily for ourselves, begin to dream of publication. So when someone finally offers us a book contract, we may be so excited we forget to be careful.

Be wise; plan ahead. Prepare yourself for that happy day by collecting information about the complexities of publishing before you see that first contract.

The first step should be to remind yourself that publishers are in business to make money; that aim does not always mean they are looking out for your interests.

Traditional publishing has changed greatly in the past decade, and many established publishers won’t risk publishing work by an untried writer. Your best chances of seeing your work in print are to work with an independent — “indie”– publisher or consider self-publishing. Both avenues can be very satisfying if you are careful to make informed choices, but both have particular dangers.

Publishing contracts vary so widely that it’s impossible in this short commentary to warn you against every possible infringement of your rights. Read carefully. Most importantly, if you don’t understand a contract provision, ask your prospective publisher– and seek independent information about that clause from a knowledgeable source, like a writers’ organization. If you prefer to consult an attorney, be careful to find one who specializes in copyright and publishing problems. Most attorneys do not study such matters, and you don’t want to pay their hourly fee while they research your problem.

Don’t sign anything you don’t understand. Remember: the publisher will always protect its interests, and that might not mean the same as protecting yours.

 

Questions to ask before signing a contract:

1. Does the publisher copyright for the author?

If the publisher copyrights the book in the publisher’s name, then it owns the copyright to your work. A legitimate publisher copyrights publications in the name of the author. Ask for samples of several recent books.

According to the most reliable source, the U.S. Copyright Office, (www.copyright.gov) the copyright notice should appear within the first few pages of the book and should contain all three of the following elements close together:

(1) The symbol © (letter C in a circle); the word “Copyright”; or the abbreviation “Copr.”

All forms of this word are acceptable, but some form of it must appear.

(2) The year of first publication.

If the work is a derivative work or a compilation incorporating previously published material, the year date of first publication of the derivative work or compilation is sufficient. Examples of derivative works are translations or dramatizations; an example of a compilation is an anthology.

(3) The name of the copyright owner, an abbreviation by which the name can be recognized, or a generally known alternative designation of owner.

An example of the full copyright notice might read: © 2012 Jane Doe.

The name following the year date should be the author’s name, not the publisher’s name. If the publisher’s name appears here, the publisher owns the copyright in perpetuity and the author has lost the right to his or her own work. Some publishers either don’t know this, or want to hijack copyright. In addition, some organizations which provide grant funding for authors consider any work produced during the grant period as a “work for hire” and do not copyright for the author but for the organization. When applying for or accepting grant funds, be sure to determine whether you will own the copyright to any material written during the granting period.

 

2. Does the publisher register the copyright in the author’s name with the U.S. Copyright Office?

In the past, when a publisher accepted the author’s assignment of rights in a publishing contract, the publisher assumed responsibility for performing all the tasks associated with copyright, including preparing an appropriate copyright notice and including it in the published work. Then the publisher forwarded the required number of copies of the book to the Copyright Office, and with the appropriate paperwork to register the copyright. Later, the publisher might assist the author or the author’s heirs to renew copyright. All this was considered part of the publisher’s job because it protected both the author and the publisher against copyright infringement.

This is no longer the case, but registration remains important to the author. If your publisher does not register copyright for you with the U.S. Copyright Office, it’s essential that you do it yourself.

Chicago Manual of StyleThe most recent edition (16th) of The Chicago Manual of Style includes this passage:

4.49 Benefits of registration

Registration is not necessary to obtain a copyright (which exists in the work from the moment it is fixed in tangible form; see 4.3) or to ensure its validity. However, the prudent course is to register copyright because of the added protection registration affords. In cases of infringement, registration is a prerequisite to bringing suit unless the work was written by a non-US author and first published abroad. Registering at the time of publication avoids a scramble to register later if infringement is discovered. Moreover, if registration has been made within three months of publication, or before an infringement begins, the copyright owner, instead of going through the difficulties of proving actual damages, can sue for “statutory damages” (in effect, an award of damages based on equity rather than on proof of loss) and, most significantly, is eligible to be reimbursed for attorney’s fees. Publishers fearing prepublication piracy of books in development should also consider the “preregistration” procedure at the website of the United States Copyright Office.

To summarize: if your published work isn’t registered, you might have to spend considerably more money to defend your legal copyright if it is infringed, as well as paying all the attorney fees yourself.

 

Who’d want to steal poetry? you ask. In several instances, a candidate for an advanced degree in Creative Writing presented an entire work written by someone else as original, received the appropriate degree and was hired to teach on the basis of it. With printing so accessible now, it would be easy to put a new cover on someone’s book, add your name, and sell it yourself.

For more information, search online for “Plagiarism Cases” and be amazed.

 

3. Does the publisher place ISBN numbers on its books?

The ISBN, International Standard Book Number, is a 13-digit number that uniquely identifies books and book-like products published internationally. The purpose of the ISBN is to establish and identify one title or edition of a title from one specific publisher and is unique to that edition, allowing for more efficient marketing by booksellers, libraries, universities, wholesalers and distributors. Each ISBN also identifies a specific publisher, and helps to identify and circulate books properly in the industry supply chain.

Beware unauthorized re-sellers of ISBNs, who may offer to purchase single ISBNs at special offer prices. This activity is a violation of the ISBN standard and of industry practice. A publisher with one of these re-assigned ISBNs will not be correctly identified as the publisher of record in Books In Print or any of the industry databases such as Barnes and Noble or Amazon or those of wholesalers such as Ingram. If you have questions, contact the US ISBN Agency for further advice.

The ISBN Agency assigns ISBNs at the direct request of publishers, e-book publishers, audio cassette and video producers, software producers and museums and associations with publishing programs. For more information, see http://www.isbn.org/

 

4. Does the publisher place bar codes on its books?

ISBN trioLook for a bar code on the back of the book. A bar code is a binary coding system consisting of varying widths of vertical black lines (called bars) and white spaces that when read by an optical scanner can be converted into machine language. Bars and spaces are just one of many “elements” that make up a bar code. Without a bar code, many wholesalers and distributors such as Amazon will not stock the book. Some wholesalers may put one on and charge the author for doing so. If this step has been omitted accidentally, it may be possible to apply labels with barcodes.

 

5. Has the publisher been accepted into the Cataloging in Publication (CIP) Program by the Library of Congress?

A Cataloging in Publication record (aka CIP data) is a bibliographic record prepared by the Library of Congress for a book that has not yet been published. When the book is published, the publisher includes the CIP data on the copyright page thereby facilitating book processing for libraries and book dealers. Every publisher/imprint must have already published a minimum of three titles by three different authors.  There is no charge for CIP processing. For more information, see http://www.loc.gov/publish/cip/

 

If an independent publisher does not have ISBNs, does not have CIP data, or has no bar code on the backs of the books, consider why not. The publisher may have published too few books to have explored these important steps. Or the publisher may be ignorant of the legal requirements and benefits of publishing your work, or perhaps does not take responsibility for selling the books published. Each of these steps makes it easier for libraries and bookstores to acquire the book, so your best interests will be served by a publisher who can provide these services.

If your book is a chapbook, or small volume and you expect to handle sales yourself, perhaps within a small regional area, you may not need an ISBN, CIP data or a bar code. But if you expect your book to sell to bookstores, libraries and a wider audience, consider your alternatives carefully before signing with a publisher who is ignorant of these benefits or unqualified for them.

 

6. How does the publisher distribute the books published?

ISBN numbers, CIP data and bar codes all contribute to better distribution, but the publisher should also have access to numerous major distributors, particularly Ingram, and others who sell online as well as market to bookstores and libraries. Ask for your publisher’s list and look for information on those distributors. Virtually all books can now be sold on Amazon, so check for the other possibilities.

 

How can you tell if your publisher is able to produce a quality book?

A major change in the publishing industry is that self-published books can now be listed on sites like Amazon, as well as sold in bookstores. Small and independent publishers have a long history of doing a good job of publishing books that larger publishers might not consider, but which are important in our history. However, some publishers may be new to the business and may know very little more than the author does about it. Anyone can learn to self-publish, and many sites exist that will walk you through the process attentively. You may not need a publisher.

Before deciding to publish with a small or independent publisher, consider some of the following and try to draw conclusions from the evidence offered by the publisher’s work.

 

— Is the publisher stable?

SFWA screen shotEven publishers with plenty of capital go broke fairly often. How long has your proposed publisher been in business? How many books has it published?

For an extended discussion of risks of signing up with a brand-new publisher, see this post from the SFWA.org Writer Beware blog, New Publishers: To Query or Not to Query.

 

— Is the publisher capable of producing high-quality books?

A publisher is responsible for overseeing the selection, production, marketing and distribution of new books. Many larger publishing companies require at least a BA in a related field, such as communication, English literature, or journalism, along with relevant work experience. Various colleges offer certificate programs in publishing that can range from two intensive weeks to 15-credit-hour courses, as students learn about editing, production, design and marketing. Emerson College offers a course that includes working on a business plan for their press or magazine.

Try to assess your publisher’s abilities. An independent publisher may not have an extensive educational background but still may be well informed about the responsibilities of the job. But all that’s necessary to become a publisher is to put up a website and call for submissions. The amateur publisher may have a great desire to publish good books, but lack the knowledge to do the job well. For an example of what this might mean to you, read “The Short Life and Strange Death of Entranced Publishing.” http://www.victoriastrauss.com/2014/03/28/the-short-life-and-strange-death-of-entranced-publishing/

 

— Does the publisher really intend to publish or is the supposed business a scam?

Traditional publishers, real publishers, invest in books. They are selective in their purchase of manuscripts, accepting books designed to enhance the reputation of the press. They pay for specific rights; larger publishers pay advances and royalties, and they promote their authors. Of course they hope to make a profit, but they take the risk that they will not, because they believe in the process.

A vanity publisher is one that requires the author to pay for some or all publishing costs. Sometimes the resulting book is so poorly produced as to be unsaleable. A little research can produce horror stories: a supposed publisher may take the author’s money but disappear without publishing. Some publishers have delivered unbound galley proofs, and when the authors read the contract, they discovered no specific language promising binding. Vanity publishers may pretend to be legitimate until the author has signed the contract and the payment is due. Read the fine print: the vanity publisher may offer “one-stop shopping,” promising to edit the book, design the cover, and publish the book– but in some cases the editing, the design, and even the ISBN number belong to the publisher, so that all profits accrue to the publisher instead of the author. The vanity publisher’s primary purpose is profit, so its services are usually priced far higher than those offered on the open market.

At every newspaper and publication for which I’ve worked, the official policy was to throw away books produced by vanity publishers without looking at them. Because the newspaper knew the press would publish anything for money, it would not review any of the books from the known vanity publishers.

Though vanity and subsidy publishers are often lumped together, some publishers operating on a subsidy basis negotiate costs with the author, accepting some of the costs but not all. A subsidy publisher may offer a package deal, wherein the author pays for some services, while the publisher pays for others. Thus a subsidy publisher may be legitimate, and may turn out decent quality work at a fair price.

Self-publishers do all the work themselves, pay all the expenses, and get 100% of the profits. They edit their own work, or hire an editor; design the book or hire a designer; hire a printer, and do every other step connected with turning a manuscript into a book.

Unfortunately, a writer’s eagerness to be published may make him or her gullible to publishing schemes. Writer Beware provides a distressingly long list of case studies of such scams; reading it can make you more aware of the language that can signal a scam. For the best discussion of the differences, see the Writer Beware site, which includes a list of the best-known vanity scammers.
http://www.sfwa.org/other-resources/for-authors/writer-beware/

 

— Can the publisher promote and sell the book as you expect?

Even if your publisher is legitimate and has good intentions, the limitations of a small budget may mean books don’t get promoted enough to reach buyers. How does your publisher promote your book?

 

— Does the publisher only sell online, but you want to see your book in stores? Does your publisher promote the books only on a website and social media? Bookstores have specific requirements for the books they accept for display and sale. They require a 40% discount on the retail price, and must be able to return unsold books, so costs of shipping or delivery must be factored into your arrangements. Some stores only accept books on consignment, paying only if the books sell; you might get all your books back in a month, slightly worn from being handled. Some publishers consider this all too much trouble; you might do better to handle local bookstore sales yourself.

Ask for samples of the publisher’s books. Then compare those books to those published by large and reputable publishers. Which book would you choose based on the book’s appearance?

Sometimes independent publishers set the books’ text with narrow margins to save paper, making the type look crowded. Some small publishers use odd types, difficult to read. Does the font chosen for the page numbers differ from the font used for the text? Does each book have an individual look or are they all similar? Both these situations may signal a book created online, not designed individually in a way that enhances your subject.

 

— Look at the covers of the publisher’s books. Are they readable and well-designed? Does the publisher have a cover artist or will you be required to furnish a cover? Does the cover fit the book’s mood and content? The cover is your first, and often your only, opportunity to impress a customer; it should be easy to read and informative as well as attractive.

 

— How much will your book cost the customer? Compare the price with that of similar titles. If your book is more expensive than books on similar topics, it may not sell.

 

— Ask for a clear accounting of what costs you will pay. (Look for information on Vanity publishing and Cooperative publishing to see if this publisher fits one of these profiles.)

 

— How much are royalties and when are they paid? Royalties can be confusing so seek information. Some print on net receipts or net margin, meaning that print and distribution costs are paid before your royalties. Royalties may be paid quarterly or yearly, but specifics should be included in your contract.

 

— Does the publisher answer your questions clearly without losing patience? Does he or she return phone calls and messages promptly and coherently? Does the publisher say he or she has made calls or sent emails that you did not get? How large is the publisher’s staff? When you telephone or email the publisher, who answers? Is the response professional? Is this a business or a weekend hobby?

You may not automatically decide to decline offers from a part-time publisher, or one with a small staff, but if publishing is not the primary business, or if the staff is small or inexperienced, you might encounter delays you did not expect.

 

— Look at the publisher’s website and other social media sites like Facebook. Are they easy to navigate? Is information clearly organized? When was the last update? What is the most recent publication?

 

— Study the comments from readers, book buyers and authors. Are they positive? Ask for contact information for several authors and ask privately how the publisher has treated them during the publishing experience. The publisher should be eager to provide you with this information.

 

— Does the potential publisher make extravagant claims for how many copies your books will sell and how much money you will make?

No matter who publishes your book, you will need to work hard at marketing to sell a substantial number of copies. The more visible you are– doing workshops, giving talks, appearing on media outlets– the more copies you are likely to sell.

 

— What is your author discount? Since you will have to work to sell your book anyway, you should not pay retail price for copies of your book that you purchase for resale.

 

— How long will it take to publish your book? Three to six months is usual and acceptable. Be sure delivery time is stated in the contract and that penalties exist for the publisher if the contract deadline is not met.

 

If you are happy with the answers to these questions, you may have found a publisher you can trust and with whom you can work. If not, keep looking, or consider self-publishing– and that means you must do more research.

 

Here are some reliable resources for learning more about publishing:

 

WritersLegalCompanionThe Writer’s Legal Companion by Brad Bunnin and Peter Beren: get the latest edition; this may be the best money you ever spend as a writer.

 

The Poets & Writers Guide to the Book Deal: again, get the latest edition; a download may be available. P&W is especially good on the definition of your rights as an author.

 

One of the best sites for general information about writers is the Science Fiction Writers’ Association’s  Writer Beware, which lists alerts for writers, names publishing scammers, provides information about provides information including case studies, editorial services, small and vanity presses, contracts, contests, agents and other relevant matters.
http://www.sfwa.org/other-resources/for-authors/writer-beware/

 

The website Keep Your Copyrights is written by Columbia Law School, and is packed with specific information. For example, the site provides copies of various kinds of contracts– literary, academic and so on– and rates them according to the advisability of signing them.
http://web.law.columbia.edu/keep-your-copyrights

 

The Authors Guild:  https://www.authorsguild.org/
If you are eligible to join, you can get information packets, legal services and other perks including dental insurance. Eligibility criteria include income of $5000 from writing during the past 18 months, publication by an “established U.S. book publisher,” or other requirements. The Authors Guild also offers associate membership with requirements that are less stringent. See this link for more information:
https://www.authorsguild.org/join/eligibility-criteria/

 

Linda M. Hasselstrom
Windbreak House Writing Retreats
Hermosa, South Dakota

 

© 2016, Linda M. Hasselstrom

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4 thoughts on “Writers Be Wary: Publishers and their Contracts       

  1. As an new indie author, I am always looking for great tips and advice like this. Trying to get the right information when trying to self publish can be daunting. Thank you for sharing this!

    • Glad to be of help, and of course this is only the first page of a long long book on all the pitfalls of publishing. But keep looking and cross-checking. And ask other authors: most are generous with advice. And if you run into someone who isn’t, go on to the next one. My best wishes for your publishing life.

  2. What a great way to start off the new year, Linda! thanks for all the updated information. i have been on a two year hiatus from writing, as I have been babysitting for grandchildren and caretaking of family members.I am going back to freelancing essays and am searching for an agent for two adult non -fiction books including Always a Daughter, and five children’s books ( 4 picture books/ 1middle grade reader. i think it will take me awhile but I am looking forward to getting back to the writing. Hope your retreats are going well!
    Dolly Viscardi

  3. Hi Dolly, I hope you have notes in your head from all that baby-sitting and other care; probably good material there for memories you’ll want to keep, as well as writing material. Research on publishing is a good way to feel as if you are accomplishing something while you are getting back into the swing of writing.

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