Q & A on Publishing Terms

I get many questions from writers who are puzzled by provisions in their publishing agreements.  Here’s a sample:

Q. My publisher says it will ask my permission before making a “substantial” change to my manuscript. But a friend says it should be a “material” change.   What is the difference between a “substantial” change and a “material” change?

A. The word “material” is a term in law well understood to mean “more than de minimus.”  In contracts, a material breach occurs when one party fails to perform a major part of a contract, typically price, performance, and/or terms of payment.  “Substantial” is similar, but has a different meaning, depending on state contract law, and usually is seen in connection with the word “performance.”  In general, I always recommend “material,” as in “After the Work has been accepted by the Publisher, no material change may be made without the Author’s approval. The Publisher, however, may copyedit the Work in accordance with its standards of punctuation, spelling, capitalization, and usage.”

Q. My publishing agreement provides that I grant the publisher the exclusive right to publish without limitation “in any language,” yet the first sentence of the subsidiary rights sections says I retain the right to “sell or license the work in any foreign language.” Is this possible?

A. The two sections are contradictory, a result of poor draftsmanship. I can only assume the language in the subsidiary rights section was meant to apply after your rights have reverted at the end of the agreement.  You should ask the publisher whether it considers that it has foreign and translation rights, and respond accordingly.

Q. My publisher says it is interested in audio books, but it licenses to an outside company. In that case, I’d rather produce it myself. Is it generally possible to separate audio and print rights?

A. Yes, absolutely, you can “carve out” any subsidiary right – foreign, translation, film, video, merchandising, etc. Just specifically say that audio rights are reserved to the Author.  (Most publishers, however, do license audio rights to other companies.)

Q. My publishing agreement includes a requirement that “The Author must be available for Internet interviews or guest blog appearances arranged by the Publisher.” I have a day job and can’t just drop everything and make an appearance on a Tuesday afternoon if the Publisher deems that I “must be available.” Is there a way to have the Publisher work within the limitations of my schedule?

A. Yes, certainly. Just ask that it be reworded to “reasonably available, subject to Author’s schedule.”  And keep in mind that typically the publisher has the final say on promotion, publicity, and blurbs.

Q. Should I try to limit the length of my publishing agreement to a specific term of years – say five years with an option for another three? Is that reasonable?

A. It’s certainly possible, but it isn’t reasonable. Publishers want to know they have a book tied up for as long as they desire to keep it in print. Regular traditional, commercial publishing agreements have no term except the length of copyright, and are limited only by “out of print” clauses. Your 5-year term may be used by some small presses or P.O.D. publisher touting their “author friendliness,” but it is not standard practice among the majority of publishers.

 © 2019 Daniel Steven