Pulling Back the Publishing Veil: Contract language with regards to edits

Today I want to concentrate a bit on the contractual aspects with regards to editing. Let’s start out by mentioning there are two broad classifications of fiction and each has different requirements.

• Work for Hire – Generally this is when you have been contracted to create a story in someone else’s sandbox. Basically the world, characters, idea, and basic plot are provided to you by the publisher (or fellow author) who owns that universe.  Usually you are given a bible to follow and it is the copyright owner, not you, who has last word over the final product.  Media tie-in books such as Star Wars or Star Trek are prime examples of this type of contract.
• Original Content – Are works that you created and own the copyright to. You come up with the characters, world, and own it as an intellectual property that you “license” someone to publish, but that doesn’t mean you give up your “ownership” rights to the work or your ability to control the stories being told.

There was a famous incident recently where L.J. Smith was replaced by another author to write the Vampire Diaries franchise, and she was shocked that she had no recourse. But L.J signed a work for hire contract without understanding the implications of that industry term. This shows the importance of understanding the implications of a contract before you sign!  When it comes to editing a work for hire project, usually the publisher will have the final say. This type of arrangement is pretty much a “You must do what we say” arrangement.  Because this is pretty cut and dry I’m not going to discuss it further. Instead, I want to concentrate on books of your own creation.

For me, personally, I would never sign a contract where I don’t control the content of the book. After all it’s my name (or pen name) on the cover and I’m very careful about protecting my reputation. In a contract that provides the author this type of control the publisher can refuse to release the book (if it’s not up to their standards) but they can’t alter the book against the author’s wishes.

But there are other authors who may not feel this way. A new or inexperienced writer may prefer to trust their publisher/editor more then they trust themselves. For them, they are fine with the publisher having “the last say” as a means of ensuring the quality of the product.  Either choice is fine, but you need to decide which camp you are in, make sure you and the publisher agrees, and then ensure that the contract reflects that decision while protecting each party.

Before we discuss the contract clauses that may need to be looked at, let us take a moment to review the process from submission to publication.

1. A manuscript (or proposal) is submitted to the publisher and the acquisition’s editor likes it so much that an offer for publication is made and a deal memo (outlining broad terms such as amount of advance, royalty rates, and  possibly publication dates) is sent to the Author.
2. The author and their agent will accept the deal (or negotiate for better terms) and once the Author and Publisher agree a deal is struck!
3. At some point (maybe weeks or even months later) the contract will arrive with many clauses and what may look like complicated language
4. The publisher’s contract manager and the author’s agent fights over various clauses and adjustments are made.
5. A final contract is agreed to and signed. (Author receives 1/3 of advance “upon signing”)
6. The contract will stipulate a delivery date (usually only an issue for contracts based on proposals, or if the editor brought up some proposed changes based on their first reading), and the author will submit (or will have already submitted) a final manuscript.
7. The content editor goes over the submitted manuscript and provides structural feedback to the author.
8. The author will probably agree to some changes, and disagree with others. The editor and author will work together to produce a version that the author considers “complete and final.”
9. The acquisitions editor reviews the revised manuscripts and accepts it. (Author receives 1/3 of advance “upon acceptance”)
10. Additional production work is done to the book including copy / line edits (keeping the story the same but changing the words to fix grammar errors or typos), cover design, layout, and so on. The author will be provided (and must approve) changes done for copy editing and also printer proofs which the author must approve.
11. The book is published (Author receives 1/3 of advance “upon publication”)

Of course the above assumes “everything goes fine” but when dealing with contracts you should look at it with an eye toward “what if things go wrong.” What happens then? In general the types of things to be concerned with and insure the contract will cover are:

• What if the author and the publisher can’t agree to changes?
• How long will editing be allowed to go on?
• If the author is forced to make a lot of changes by the editor do they get to keep the signing bonus?
• If editing changes take so long that market conditions change, can the book be cancelled?
• Can the author get “fed up with the editor” and withdrawal the book?
• Can the publisher get “fed up with the author” and withdrawal the book?
• Can the author sell the book somewhere else after reversion?
• Can the author self-publish the book after reversion?
• Will the signing bonus need to be returned?
• What if the author can’t pay back the signing bonus? Who has the rights then?

In the above sequence, editing occurs in steps #7 – #10 that we should look for clauses concerning:

• Acceptance
• Authors responsibility for reviewing/approving copy edits and proofs
• Final Publication
• Subsidiary rights that may vary the content of the piece such as audio (or other) abridgment, graphic novel versions, or serialization

In general, when it comes to publishing contracts, I believe that “What’s good for the goose, is good for the gander” but publishers don’t often provide contracts that reflect this mentality. Because they are drafted by the publisher, it’s not surprising that the balance of power is shifted toward their favor.

Acceptance Clause

This is the clause that, in my opinion, you should pay particular attention to. My ideal version would look something like this:

“After submission of the final manuscript by the Delivery Date, the author and the publisher’s editor will work together to make any content changes over the course of xx days. Extension of the editing period is permissible if agreed upon in writing by both parties. If a satisfactory version of The Work cannot be reached in that time, the contract will be terminated based upon the provisions of Paragraph xyz* (see bottom of this post). Provided the manuscript is delivered by the Delivery Date, the Publisher’s determination whether the manuscript is acceptable shall not be based upon changes in market conditions.”

While I think this is a very fair acceptance clause, I’ve never seen one that looks like that. Here is one from a recent contract of mine:

“Following delivery by the Delivery Date of the complete and final manuscript in the length specified in this Agreement, the Publisher shall notify the Author whether such Book is acceptable.  If the Publisher determines in its good faith judgment that the Book is unacceptable, the Publisher will provide written editorial comments to the Author, along with requests for revisions if the Publisher believes such Book can be satisfactorily revised.  In such event the Author shall deliver the revised Book within 60 days thereafter.  Any request by the Publisher for changes or revisions in any portion of such Book shall constitute notice to the Author that such Book is not then acceptable to the Publisher.  Provided the manuscript of each Book is delivered by the corresponding Delivery Date, the Publisher’s determination whether the manuscript of each such Book is acceptable shall not be based upon changes in market conditions.”

So I see several important things here I don’t like:

1. There is a noticeable lack of deadlines imposed on the publisher (even though the author must get their work done – regardless of scope of changes – within 60 days).  They have no time limit in which to indicate “acceptance.” No time limit for getting their changes to the author. And no time limit to get back with an accept/reject decision on the revised manuscript. Such a contract could allow the publisher to “lock up the rights” of a book essentially forever.
   
2. There is no provision for the author to disregard the changes provided. The contract says “the Author shall deliver the revised Book”
3. It restricts the process to a single round of edits, when a book may need several.

Elsewhere in this contract are clauses relating to how/when the author and the publisher can terminate the contract. In those clauses the  publisher may terminate the contract at any time after delivery but the author can only terminate if the publisher fails to publish the book 18 months after acceptance. But what if the book never gets to acceptance?  Again we find the author is powerless to force a termination, while the publisher is free to terminate at will. I would not (and did not) sign the contract while written this way.

Copy Edit & Printer Proofs

Besides the Acceptance Clause there are other editing related clauses that the author should pay attention to. For instance, proof reviews. It is common to specify that the author will be provided with copy edits and printer proofs and if they don’t return them within a certain period of time the publisher may publish them “in the condition submitted to the Author.”  This is done to prevent delays at a crucial time in the process. But an author who is a bit paranoid about no changes being made without them could tweak the wording to say “in the condition submitted by the Author.” I didn’t bother changing this clause because as long as I’m meeting my deadline (which is dependent on me) I can guarantee the book will have changes I’ve signed off on.

Something else to note, when you get tot he final proof stage (after the books have been edited for content, line edited, copy edited, and laid out the author should not be making any changes – unless it was a problem introduced by the production process or a very serious error that slipped through all the other editing. Printer proof is not the time to decide you need a new paragraph or that you wish to cut a scene.  Changes at this stage can be very expensive and dangerous as errors could be introduced. For this reason it is common (and reasonable) for the publisher to charge the author for excessive changes.   Again, if you edit when you should (during the acceptance, line edit, and copy edit stages) this shouldn’t be a problem so I wouldn’t bother fighting for a change here as you can control your own behavior and adherence to the terms of the contract.

Publication of Work

Usually there is a provision in this part of the contract that authorizes the publisher to make changes to the manuscript with regards to making it conform to standard styles in punctuation, spelling, and capitalization. And while it doesn’t explicitly say it here, other clauses will ensure that the author sees and approves these changes.

Also in this part of the contract I look for a clause like the following:

“Except as may be otherwise expressly provided in this Agreement, no other changes will be made to the manuscripts without the Author’s consent.”

This makes it crystal clear that the author has the “final say” in the content and the publisher can’t change the book out from underneath your feet.

Subsidiary Rights

One last thing to pay attention to is the author’s rights regarding subsidiary rights such as audio, serialization, abridgment, or anthologies. Again, in a desire to protect the integrity of your work you should make sure that you approve what is cut from any abridgment. Also if the work is to be serialized, the author should be able to specify where the cuts occur.

Wrapping Up

And that’s about it.  Remember when it comes to determining who will have the final say on content it is important for you and the publisher to be on the same page, and then ensure that the contract expresses those concerns. Always think about the worst case scenario and if it represents too much risk (like rights locked up forever) then don’t sign!

* Here are some possible considerations that should be in the paragraph that talks about termination of the contract.

1. All rights will revert to the author and they will be free to offer to other parties or self-publish.
2. A reversion letter will be sent from the Publisher to the Author within xx days
3. Any monies paid by the Publisher to the Author shall be either: returned to the Publisher or retained by the Author  (NOTE: The contract will almost certainly say it has to be repaid, and while everything is negotiable, they probably won’t budge on this point. Also note that the amount should CLEARLY say that ONLY monies received by the Author needs to be repaid because without that, the publisher could charge the author for the “editor’s time.” The Author should never, in my opinion, be on the line for more money than what came into their pocket.  When reviewing the contract you should always look for loopholes that will attempt to rope you in for fees that you shouldn’t be responsible for.

NOTE: In the case where a signing bonus has to be repaid, it’s not uncommon (or unreasonable) for The Publisher to want to withhold the rights until they get their money back. After all, the rights were transferred to them and it is their only leverage for getting their money back.  But on the other hand, it may be hard for the author to earn money to repay the advance without exercising those rights somewhere else. In some cases it may make sense to have language to indicate that the author can publish elsewhere but stipulate that until the publisher is paid back, any proceeds from that “other” publication will go to the publisher first.  Of course you can avoid all this by keeping your signing bonus “set aside” until after acceptance and make prompt repayment and get your rights back.

NOTE: If the author is asked to make excessive changes, and yet the editor just can’t seem to be pleased despite their best efforts, then it is reasonable for the author to keep the signing bonus when you part ways.  After all time is money, and the author has made a good faith effort to get the work “finished.” The way to frame this clause may be tricky. Perhaps specifying that if xx months go by or yy revisions are presented then the author gets to keep the signing bonus. I’ve heard stories where authors have gone through ten complete rewrites or edited for years and still didn’t get acceptance and that’s just a large waste of your time.