In our Spotlight on Book Publication Contracts series, we are shining the light on the ways that authors can negotiate for publication contract terms that help them make and keep their books available in the ways they want. This series is based on the information, strategies, and success stories in our guide to Understanding and Negotiating Book Publication Contracts. Be sure to check out the online or print version of our guide for more details on these and other strategies to help you meet your creative and pragmatic goals.

We’ve highlighted contract terms that help authors meet open access goals and featured ways authors can shape their publication contracts to retain some control over their rights. In this installment of our Spotlight on Publication Contracts, we’re sharing ways you can shape your contract to give you a say in how your work will be presented to the world.

Contracts typically include clauses that allocate the decision-making authority for important parts of the publishing process—from the timing of publication to the title of the work. Your publisher will likely approach these decisions with an eye towards maximizing profit, which may well align with your interests. But you may also have a stake in these decisions because they can influence how you and your work are perceived by potential readers. In this post, we cover ways you can have a say in your book’s cover design and the price of your book.

Cover Design

While a publisher’s choices about the cover design for your book will likely reflect its best judgment on what will help the book sell. But sometimes, you may have strong preferences and want to include in your contract a right of approval over any cover design decisions.

Success Story: When Authors Alliance member Janice Rhoshalle Littlejohn negotiated the contract for her book Swirling: How to Date, Mate, and Relate; Mixing Race, Culture, and Creed, she encountered a provision that would allow her to pick a book cover out of three options. Because she knew that her book’s theme would be challenging to portray artistically, she crossed out this provision and added in language giving her final say over the book’s cover. Her publisher accepted this change. Later, when her publisher sent Janice three unappealing book covers to choose from, Janice proposed that a graphic designer she knew should design the cover instead. Her publisher initially balked, but when she pointed out that she had final approval rights her publisher relented and gave Janice the cover she wanted.

As an alternative, you could consider including a contract term giving you the right to be consulted as the cover design is contemplated. The publisher will still have the final say, but it will at least be obligated to consider your ideas in the process.

Pricing

Pricing is usually central to your publisher’s marketing strategy. Your publisher will likely select a price for your book based on historical sales figures, prices of comparable books, cost of production, and other factors. But pricing is an important consideration for some authors. For example, some authors of academic books want to make their works available at a price that is affordable to students.

If it is important to you that your book is sold at a specific price, you can ask your publisher to share its anticipated production expenses and sales projections for your book so you can better understand its pricing strategy. If you understand what factors are driving your publisher’s pricing decision, you could negotiate for specific changes—such as agreeing to a lesser page count or using fewer illustrations—that will help keep the price low.

Success Story: When Pamela Samuelson negotiated the contract for her forthcoming book, making it available at an affordable price in both hardcover and paperback editions was one of her key concerns. Therefore, before negotiating she looked at the price of other books on similar subject matter issued by the publisher. Professor Samuelson singled out those books that had a price within her acceptable range and whose page count and format were comparable to hers, and then told her publisher she wanted her work to be priced like those books. To sweeten the deal, she offered to forgo an advance on royalties, which would reduce her publisher’s upfront costs. As a result, Samuelson was successful in getting her publisher to agree to price the book in the range that she wanted.

Even if you can’t get your publisher to agree to sell your book at a specific price, there are still some indirect strategies you could pursue to make your book more affordable. For example, you can ask your publisher to release your book only in paperback, make it available as an e-book, or simultaneously release your book in hardcover and paperback.

For more on how to ensure you can provide input on the finishing touches of your book, including the timing for publication, the formats which it will be made available, its title, and design and production decisions, see pages 144-158 of Understanding and Negotiating Book Publication Contracts.

In our Spotlight on Book Publication Contracts series, we are shining a light on the ways that authors can negotiate for publication contract terms that help them make and keep their books available in the ways they want. This series is based on the information, strategies, and success stories in our guide to Understanding and Negotiating Publication Contracts. Be sure to check out the online or print version of our guide for more details on these and other strategies to help you meet your creative and pragmatic goals.

The grant of rights is the heart and soul of your publication contract. It specifies what rights in your work you are giving to your publisher and what your publisher can do with these rights. These rights can be broad (e.g., the right to print and sell copies of your work anywhere in the world, forever) or they can be narrow (e.g., the right to sell a limited edition in a specific market for a set period of time).

Last week, we featured contract terms that authors can use to form a publication contract that accommodates open access options. This week, we are sharing more ways you can shape your publication contract to retain some control over your rights, either by limiting the grant of rights or by securing the right to approve or be consulted about how your rights are used.

Limiting the grant of rights

One way you can help ensure your work is available in the ways you want is to negotiate for changes to the grant of rights. This is especially important if holding onto certain rights is important to you for personal or professional reasons, if your publisher is unlikely to be able to exploit certain rights, or if you (or your agent) have another opportunity lined up to use certain rights.

In last week’s post, we shared how authors can use non-exclusive licenses or limited-term grants to limit their grant of rights clauses. Another way to soften the grant is through a “use it or lost it” clause, also called a “revert-back” clause. Under these types of clauses, if your publisher doesn’t use or license a specific right within a set period of time, the right reverts back to you. This is a powerful tool that gives you or your agent another opportunity to use or license rights in the event the publisher is not able to actively exploit them.

Success Story: Howard Zaharoff, a literary attorney interviewed for Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts, worked with an author who wrote a book that had great potential to be turned into a movie. The author was therefore hesitant to sign over motion picture rights for fear the publisher would not exploit them. But the publisher also saw the potential for a Hollywood hit and was keen to try to sell movie rights. To resolve this tension, Zaharoff helped the author secure a “use-it-or-lose-it” provision that satisfied both parties: The publisher was given three years to place the movie rights, but if the publisher did not do so in this timeframe, the author could reclaim the rights.

For other ways to limit the grant of rights, including limiting the scope of the rights granted, asking for a license-back clause, and reserving rights not granted, see pages 63-74 of Understanding and Negotiating Book Publication Contracts.

Securing approval or consultation rights

Sometimes, it makes sense to license rights to your publisher, but you might still want to have some say in how your rights are used. “Approval” clauses give authors the opportunity to review and approve decisions before they are made by the publisher (often subject to the condition that your approval will not be unreasonably withheld).

Success Story: An author interviewed for Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts wanted to maintain some control over the development of the audiobook version of her book and its adaptation into a screenplay. After explaining to her publisher that it was particularly important to ensure the integrity of the dialect and voices of her characters, her publisher agreed to give her the right of approval over the licensing of these subsidiary rights.

Another way to have a say in how your rights are used is through a “consultation” right, which gives you the opportunity to discuss decisions with your publisher before decisions are made about how your work is used. Consultation rights don’t give authors the same level of control as approval rights since the publisher still has the final say, but they provide an opportunity to discuss any concerns with the publisher before decisions are made.

Finally, don’t overlook “notice” provisions, which require your publisher provide timely notice of any uses of your work, including licensed uses by third parties.

For more on approval, consultation, and notice rights, see pages 91-94 of Understanding and Negotiating Book Publication Contracts.

Last week, we released a guide to Understanding and Negotiating Book Publication Contracts. Today, to celebrate Open Access Week, we’re featuring ways that authors can make their books open at different stages of the book’s life cycle and how to shape a publication contract to accommodate these options. As with our guide, we’re highlighting real success stories from authors who have successfully negotiated for terms in their publication contracts that enable them to meet their open access goals.

An initial consideration for authors is whether to publish with a dedicated open access publisher, such as Luminos (University of California Press’ open access publishing program for monographs), or to negotiate with a traditional publisher. Whether working with a dedicated open access publisher or negotiating with a traditional publisher, authors may be asked to contribute to the cost of publishing the book on open terms. However, funding is increasingly available for authors who want to make their books openly accessible. For example, TOME—Toward an Open Monograph Ecosystem—is an initiative in which participating universities provide funds to support the publication of open access monographs.

Negotiating to release a book on open terms with a traditional publisher may be difficult, but it’s not impossible. If you want to pitch your traditional publisher on open terms, it can help to make the case that your proposed non-exclusive arrangement is potentially just as lucrative for your publisher as an exclusive grant would be and to add sweeteners to the contract that make your proposal more enticing.

Success Story: Eric von Hippel, an economist at MIT and a member of the Authors Alliance advisory board, studies the economics of distributed and open innovation. Professor von Hippel wanted to “walk the walk” and make his previously published book, Sources of Innovation, freely available to the public online. So, he struck a deal with his publisher: If hard copy sales declined after he made his book freely available online, he would pay the publisher $1,000 as compensation for lost sales. If sales went up, the publisher would keep the profits and allow him to keep posting the free version. Happily, sales of printed copies went up, so he was able to keep the free version available online. Based on the success of this experiment, von Hippel was able to negotiate a non-exclusive license with his publisher for his next two books, Democratizing Innovation and Free Innovation.

Making a book openly accessible at the outset is not the only option. Publication contracts can be shaped in many ways to limit the scope of the grant of rights, including limits on the duration of the grant of rights to the publisher. By modifying the length of the grant, authors can get more control over how their works are used in the future because they regain their copyrights after the grant has expired. Some authors opt to limit the length of an exclusive grant of rights so that they can make their book openly available after that time passes.

Success Story: When she published her book The Eureka Myth: Creators, Innovators and Everyday Intellectual Property, Authors Alliance founding member Jessica Silbey negotiated for an innovative grant of rights to her publisher. Under the terms, her publisher obtained the exclusive right to publish the book for five years. After five years, Professor Silbey will automatically regain her copyrights and her publisher will keep a non-exclusive right to continue selling the book (under the same royalty terms). Although Silbey initially asked for the publisher’s exclusive rights to be limited to three years, she was persuaded by its legitimate business interest in having exclusive rights for the first five years. This arrangement enabled her publisher to fulfill its sales objectives, while also allowing Silbey to realize her goal of making The Eureka Myth widely available to readers in a Creative Commons-licensed online version after five years.

Another point in a book’s lifecycle at which open access may be a desirable option is after a book outlives its commercial life. A strong rights reversion clause that allows you to get your rights back when well-defined triggers are met can allow you to make your book openly accessible after its commercial life is over.

Success Story: Pamela Samuelson, a co-founder of Authors Alliance, wanted to make sure that she could get her rights back if her book was no longer selling well. The original version of her publication contract included a triggering condition that was based on the availability of English-language editions. Concerned that the mere availability of an ebook version of her book, regardless of sales, would mean that this triggering condition would never be met, Professor Samuelson negotiated for a change to the publisher’s standard triggering condition. After some initial resistance from the publisher and through persistent but respectful communication explaining her concerns, her reversion clause now is triggered if author earnings fall below a certain level. The clause now also directs the parties to discuss open access or similar distribution as an alternative to a full reversion of rights.

Finally, some authors who are determined to release their books under an open license may want to consider self-publishing.

Success Story: Authors Alliance founding members James Boyle and Jennifer Jenkins wanted their casebook, Intellectual Property: Law & The Information Society, to be available to as many law students as possible. For this reason, they decided to forgo traditional publishing and self-publish their book under a Creative Commons license, which allows students to download the book online for free. The decision has yielded unexpected benefits. For example, visually impaired students have told Professors Boyle and Jenkins that they appreciate using the open electronic text to produce a machine-generated audiobook in whatever format they choose.

For more information on open access, see Authors Alliance’s guide to Understanding Open Access: When, Why & How to Make Your Work Openly Accessible. For more information on understanding publication contracts and negotiating for author-friendly terms, see Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts.