THE 2 (OR MORE) BOOK PUBLISHING DEAL
IVAN HOFFMAN, B.A., J.D.
Some, but certainly not all, of the potential pitfalls to the author and corresponding gains to the publisher, are as follows:
1. Publishing guarantees. Most publishing contracts provide no guarantees that the work will be published. There are often different provisions related to the choice on the part of the publisher to do so or not. In the event that the publisher elects not to publish the work, often the only recourse an author has is to keep the advance paid to that point and to get the rights back to the unpublished work. This is of little benefit to the author since it is likely that the work has been off the market for the time that the publisher has had rights and now, if this publisher is not interested, often other publishers are not likely to be interested. The author also does not gain any advantage even if he or she makes a new deal since publishing agreements frequently provide that the author must repay the first publisher’s advance that the author kept out of the advance from the second publisher. The author has not been paid for any lost opportunity costs (see the article “Lost Opportunity Costs.”).
Now take the above scenario and add another book or books to the mix and you now have a situation in which the publisher, who has not been willing to publish book number 1 now controls book number 2 as well and the same scenario applies, times 2. Thus the author has now given rights to book number 2 (or other books) to a publisher who has not shown enough interest in the work of the author to even publish book number 1.
2. Right to Terminate. Related to the lack of publishing guarantees discussed above is the right on the part of the publisher to terminate the agreement for a wide variety of reasons including for the failure of the author to satisfactorily deliver one of the books. So the publisher can terminate as to one of the books but retain rights as to the other book or books and the author has no leverage. But in addition, often a publishing agreement provides that in lieu of termination, a publisher can bring in another author to complete the work and take whatever the publisher pays the second author out of the royalties and advances that might otherwise come due to the original author. Thus an author has now committed another book or book to a publisher with whom the author now has, at best, a challenging relationship.
3. Cross-Collateralization. The language of cross-collateralization often reads “under this or any other agreement between the parties.” Read “Cross-Collateralization in Publishing Contracts” and “Further Fallacies About Cross-Collateralization.”). However, even if the author strikes the language “or any other agreement between the parties,” the result remains that both books in this one agreement are treated as one account and thus any unrecouped advances or other sums from one book are used to offset royalties from the other book or books that may have earned out. Furthermore, advances in a multi-book deal are often structured where some amount is payable upon the satisfactory delivery of each of the books and thus an author who has completely delivered book number 1 has to wait to get further advances when he or she delivers book number 2 and so on.
4. Restrictions on Use. Publishing agreements often contain restrictions on the use of the book as well as restrictions on the other writing or other activities of the author. These provisions, standing alone, are often quite restrictive and should always be negotiated with care. However, multiply the effect of these restrictions by 2 or more books and you can see how, if this is a deal for non-fiction books in areas in which the author is an expert, gives seminars, writes other works, such restrictions can effectively put the author out of business or at best, can severely hamper the author’s ability to conduct that business. In addition, even in a 1 book deal the author may be restricted from using some part of the work but if the deal involves more than 1 book, the said restrictions may apply to all of the works and thus the said restrictions become even more restrictive.
5. Next Book Provisions. As if giving away rights to 2 or more books were not bad enough, often the agreement contains an option on the part of the publisher as to the “next book” written by the author. Here too, these provisions should always be negotiated with care but now the author has given away yet another book to a publisher who has yet to publish word 1 of the author!
As indicated, the above are only some of the potential areas of difficult and each deal and each agreement will likely present its own set of problems that need to be addressed.
Clearly the publisher may propose a 2 book deal since the publisher may want to acquire and tie up the rights to the second or other books beyond the first. But the author should come to the negotiating table with both the knowledge of how to negotiate a deal or with an attorney who does as well as coming to that table with the marketing clout to command the points needed to protect the author’s rights. No one compels either party to make a deal and every negotiation is based on the simple formula: W3M where “W3” stands for “who wants who” and the “M” stands for “more.” So if the author is unknowledgeable, or desperate, the author is likely to make a very bad deal, one that the author may come to regret. But with good advice, a 2 or more book deal can be reached that can avoid the pitfalls described above and others while at the same time giving the publisher rights, albeit less broad based and unrestricted rights, to the follow-on books.
All authors, and publishers, should consult with and be represented by an experienced publishing attorney. An author should never have an agent review any agreement and should never be represented by an attorney who represents or is employed by the agency. The roles of an agent and that of an attorney are separate and having an agent is never a substitute for having an experienced publishing attorney. Read “The Agency Agreement.”
Copyright © 2006 Ivan Hoffman. All Rights Reserved.