Negotiating Your Contract
The power of the informed author.
FOR many writers, an agent agreement or publishing contract can be an elusive thing. As with four-leaf clovers, having one in your hand can feel like a matter of luck as much as hard work and perseverance. Because of the dismaying odds and long years of effort these achievements usually require, the relief of finally landing a representative or publisher can override all other instincts—including any doubts concerning the legal contract.
The literary agency that sold my debut book, Calamity and Other Stories, to Doubleday, a trade imprint of Knopf Doubleday Publishing Group, was a “boutique” agency, meaning it was small and specialized, serving a select group of clients with generally modest sales. Likewise the contract I had with the agency was short and simple— straightforward enough that I understood the terms clearly without the need for counsel. It was when I moved to a much larger agency and received a much longer, wordier agent agreement that I thought twice about signing.
I understood the basics of agency agreements—that the author is agreeing to be represented by the literary agent or firm. Typical elements of such a contract are a clause spelling out the terms of representation (that your agent has the exclusive right to represent your interests on your behalf), the terms of the contract (either limited by time—often a year—or by the specific project/book), commission rates (standard being 15 percent of the total income from the domestic sale of your book), and termination notice (often stipulating payment to the agent up to 90 or more days after termination, should the book sell during that time). But that second agency agreement was more complex.
When I showed it to a lawyer acquaintance, he explained that there are two approaches to legal contracts. The first—like that of the new, big, influential agency I was moving to—uses broad language to include everything unless specifically declared exempt. An example of such language would be “the work and any derivative works in all forms now existing or hereafter developed and in all languages throughout the world.” My lawyer friend calls this everything-but-the-kitchen-sink grab overreach; it is up to you, the author, to try to grab back by specifying
every single right you don’t want to sign away.
Instead of signing the agency agreement as it was drafted, I had a lawyer draw up the opposite type of contract, in which the agency represents only what is specifically declared. I was slightly apprehensive about asking for changes to a standard contract with a powerful agency, but the negotiation went smoothly, and the agency went on to sell various rights to my first two novels.
Fast-forward to my fourth book, another novel, Blue Hours, forthcoming in July from TriQuarterly Books, an imprint of Northwestern University Press. With no offers from a commercial publisher, I submitted the book to TriQuarterly, even though my agent at the time informed me that her agency would not pursue deals with small publishers. I supposed the agency’s reasoning was simply that such contracts were not lucrative enough to be worth an agent’s time, but the explanation I received from my then agent was that small-press contracts were too “draconian” for the agency to support.
Hearing this, I was prepared to have to negotiate—and to have to do so without the help of an agent. Not that I would ever sign a contract without the aid of a legal expert. I’ve long been a member of the Authors Guild, an important organization with an impressive history of advocating on behalf of writers. If you’re an author and don’t belong to the guild, I strongly suggest you set aside this article right now, look up the organization, and consider joining (for an annual fee) before you read the next paragraph.
What I discovered in negotiating a contract without an agent was eye-opening—so much so that I want to tell every author I know: No matter the initial terms of a contract, “draconian” or otherwise, an informed author can negotiate with great success.
In my case, before receiving my contract, I spoke with the press’s acquisitions editor and asked if what I had heard about the unusually strict contracts of university presses was correct. She explained that to stay afloat, small presses often do such things as offer lower royalties than commercial presses and request comprehensive subsidiary rights—things like first and second serial rights, audio rights, translation rights, book-club rights, and so on. This conversation was important and did more than prepare me for the contract coming my way; it also let me signal to the editor, in a casual, nonconfrontational way, that I planned to negotiate.
Indeed, the contract I received was not what I considered to be a good one. Not only did the press want to own the book in all possible forms, languages, and territories, but it also wanted to register the copyright in its own name. I immediately e-mailed a copy to the Authors Guild, since my membership dues include a free contract review.
At its most basic, a book contract takes into account these terms: the work itself, including approximate word count, and the specific forms (print book, e-book, audiobook) and markets (domestic/international) in which it will be published, as well as subsidiary rights (merchandising, serial, dramatic), payment schedule and royalty rate, dates of manuscript delivery and publication, the financial and accounting obligations of both parties, a clause about the publisher’s right to option the author’s subsequent work, and terms of termination. The lawyers at the Authors Guild—an overseeing lawyer and a legal intern— swiftly responded to my e-mail with an explanation of which clauses I should try to change, while being up front about which ones a university press might try to hold on to. In those cases, the lawyers offered strategies for alternatives, should my initial requests be denied.
As a woman I am especially aware of how difficult it is to ask for something that hasn’t been offered. Think of how you feel when you need to ask for a letter of recommendation when applying to a writers conference or residency.
Now imagine asking for something from the only press that has offered to publish your book, while knowing that women are not only statistically less likely to try to bargain, but also more likely to be viewed as pushy or whiny than men who do so.
Luckily I had recently attended a salary negotiation workshop specifically for women. After listening to our many fears—that by trying to negotiate, we might lose a job offer or contract-in-progress, or simply be viewed as “unlikable”—the workshop leader, who had worked for years in human resources, repeatedly stressed that by the time an offer is made, the employer really wants you and wants to complete the deal.
Pushing aside my lingering skepticism that this perspective applies to authors or their books, I decided to go into my own contract negotiation with a positive mind-set. I was not going to worry that by firmly asking for something, I risked losing my contract. I told myself to stay upbeat, with the thought that both the publisher and I wanted to settle the agreement as smoothly, quickly, and professionally as possible.
And guess what—it worked.
Here’s how I did it: After receiving advice from the Authors Guild and looking back at my previous book contracts (all with “Big Five” publishers) for comparison, I drafted a “deal memo” detailing the changes I wanted. Since some of the lawyers’ points were more applicable to my situation than others, I decided to prioritize my requests and to signal my priorities through the language I used. For instance, I absolutely would not give up my copyright—even the press’s editor agreed it was extreme to expect writers to turn over their copyright—so I began with that point. Then there was the fact that, since my previous books have sold well in certain foreign markets, I wanted to make sure to retain foreign and translation rights. And since I was being paid a much smaller advance than usual, I wanted to retain any possibility of selling subsidiary rights such as audiobook, film, television, and radio. Never mind that my book is a literary novel that might not easily convert to another form. You never know what sort of success your book might have, so why not be ready to make the most of whatever good things might happen?
In this way, negotiating a contract became for me more than an exercise of my rights as an author. I was also exercising my belief in the value of my work and in the possibility…no, the likelihood of success—that readers will love my book enough to buy it and tell others about it.
For instance, my previous book contracts had a tiered system of royalty rate increases according to number of books sold. (In a traditional hardcover contract, once the advance is earned back, royalties are paid as follows: 10 percent of the retail price on the first 5,000 copies sold, 12.5 percent of the retail price on the next 5,000 copies sold, and 15 percent of the retail price on all copies sold thereafter.) Maybe it sounded crazy to my university press when I asked for both a higher rate and rate increases after the first 5,000 and 10,000 copies sold. Probably I’ll be lucky to sell even 5,000 from a small press. But to allow for this possibility is a show of faith in my work as well as basic, smart business sense.
My experience negotiating taught me a few things. The first is that even authors in less lucrative genres such as literary fiction have bargaining power. The second is that a deal my former agent made sound like an impossibility (or at least not worth her while) ended up being perfectly doable without giving away the proverbial store. In the end it took two e-mails and a phone call with my publisher to iron out the final details. Definitely worth the effort. In fact, negotiating a contract is one of the most invigorating and empowering things I’ve done. It’s also probably one of the most important steps I’ve undertaken for my books and career.