MARKETING PROVISIONS IN BOOK CONTRACTS
IVAN HOFFMAN, B.A., J.D.
Some of the often overlooked provisions in a book contract have to do with the marketing and promotion of the book and the respective rights and obligations of the parties with regard to the same.
These provisions can appear in a number of places within the agreement but no matter where they appear, the contract should cover at least these issues. There may be other issues as well depending on the particulars of the deal.
1. The Package. The book itself is the starting point for the issues about marketing and promotion since what the book looks like, especially including issues about cover and internal art, type face, paper choice and other such packaging issues may have a significant impact on the marketability of the book. Thus the contract should discuss which party as between author and publisher has the right to the “final cut,” i.e. the right to make the final decision in these areas. Often contracts contain provisions giving one party the right to be “consulted” with regard to such issues but giving the other party the right to make that final decision. These provisions may be impacted by any provisions contained in any separate agreement a party may have with a third party such as a cover designer. Read “The Cover Artist/Illustrator Agreement.”
2. Merchandising and Commercial Exploitation. Merely because a publisher may have rights to market, sell and distribute a book does not, in itself, give that publisher the right to make deals for the merchandising and commercial exploitation of the book or some aspects of it. These should be covered in the grant of rights provisions and should include the right to use the author’s name (real and pseudonym), likeness and biographical material in such deals. Read “Merchandising Rights in Book Contracts.” Both parties should realize, quite frankly, that a book cover may actually be much more valuable than the contents of the book. The book cover can lead to posters, t-shirts, school lunch pails etc.
3. Printing Issues. Clearly the contract should grant to one party, probably the publisher, the right to make the final decision about printing issues including book size, amount of units to be printed, when those units are to be printed, when to declare a book out of print, when to remainder etc. The author may negotiate for restrictions on these rights such as “no out of print or remainders for a stated period of time after initial publication” type clauses but it is up to the author to raise these issues since they generally are not offered by the publisher which has submitted the contract to the author.
4. Author Copies. There should be some provisions dealing with what rights the author may have as to any copies given to or purchased by the author. In addition to stating the number of copies given for free and any discounts at which the author may buy additional copies (and any royalty provisions related thereto), if the author is entitled to use the books in some restricted manner, such as in class room or lecture settings, that should be stated. If the author is entitled to use these books for back of the room sales, this issue should be covered since that impacts on the sales of the book by the publisher.
5. Web Site Issues. Related to the author copy issues may be issues about what the author can do on his or her own web site. Can the book be sold on the site? Who has the right to approve the site in regard to the book?
6. Book Signings, Appearances and Other Marketing. There should be provisions dealing with these issues both as to which party has the obligation, if any, to arrange these and the obligation, if any, of the other party to cooperate with these events. If there is to be a marketing program, it should be expressly described. Provisions should be included that deal with the rights and obligations of the author in these areas including the right to be notified of such events in sufficient time, rights to have any obligations made subject to legitimate other business opportunities of the author and the right to be paid or have the author’s expenses covered by the publisher if travel or accommodation is involved. And if there are provisions dealing with such payment or expenses, provisions should be included as to whether or not such payments or expenses are recoupable from the author’s otherwise due payments such as royalties.
In the end of course, one party has to have this final right to make all the above decisions otherwise you have a stalemate and thus the basis for a claim and, in the worst case scenario, a litigation about why a book was not successful or not as successful as it might have been.
Many form contracts, contracts copied from books or passed around by others, fail to cover these issues, either adequately or at all. The legal and financial consequences of such defaults can be very expensive and publishers who seek to “save” money by using such contracts may find such “savings” to be illusory. Read “The Do It Yourself Publishing Lawyer.”
© 2001 Ivan Hoffman