SUBSIDY PUBLISHING AGREEMENTS

IVAN HOFFMAN, B.A., J.D.


        In addition to provisions that should exist in any author-publisher agreement, there are certain issues that come up in the subsidy arrangement that have to be covered in the agreement between the publisher and the author or other owner of the material to be published.  For the sake of simplicity, I will refer to this latter party as the “author.”  Some of these provisions should also of course be included in the more traditional arrangement between an author and publisher but I emphasize these provisions here to make the point that they are even more important in the subsidy arrangement.

        1. Obligation to Deliver:  It should be the express obligation of the author to deliver the manuscript in a format designated by the publisher (hard copy, disk or otherwise).  The author’s obligations should also include the duty to deliver all third party permissions, to the satisfaction of the publisher.  These permissions should be on a form provided by the publisher to make certain that the licenses extend to both the author and the publisher and contain other appropriate provisions.  Read “The Permission Form.”

        2. Publisher’s “Safe Keeping” Disclaimer:  The publisher should include a provision relieving it of liability for loss or destruction of the material and an affirmative statement that the author shall have retained copies of all such material.

        3. No Duty to Publish:  There should be a specific provision entitling the publisher not to publish the work and, most importantly, the remedies available to and limitations on the author in such an event.

        4. Quantity and Quality Obligations: Since an author is paying to have the publisher publish a specific number of books of a certain quality, these must be specified with particularity and reference made to some definable standard in terms of the kind of paper stock, typesetting, font, graphics, illustrations, photographs, CIP and ISBN numbers, copyright information and all the other contents of the book.  If the author is entitled to any “free” books, this should be specified.

        5. Artwork: The agreement should provide which party has the affirmative obligation to provide the artwork, especially cover art, and the issues that relate to the rights to such artwork must also be covered.  In this regard, whichever party has this duty, that party should have an appropriate written, signed agreement with the artist.  Read “The Cover Artist/Illustrator Agreement.”

        6. Payments by the Author: Clearly, the amount and time of such payments must be specified and should be tied into some deliverables on the part of the publisher.  Further, the remedies of the publisher in the event the author fails to make such payments should also be specified.

        7. Money Flow:  Depending on the arrangement, the money generated from sales/licenses of the book and related materials can go either to the author or, in some instances to the publisher.  If the non-receiving party is going to be entitled to some participation in such revenues, this must be defined very clearly i.e. is it based on “net” or “gross” and if “net,” how is “net” computed?  When are such payments to the non-receiving party due?  Further, if there is such participation, what is the basis of such participation i.e. on what forms of income will the participation be based (sales, licenses and if licenses, what kind of licenses, foreign, merchandising etc.)?

        8. Money Flow (More):  If the deal contemplates that the publisher will sell the books to the author, then the price per book must be set out clearly including quantity discounts.  Issues about ownership of plates and other aspects of the publishing process should be included as well.  As above, if the author is going to be entitled to free books, this has to be specified.

        9. Copyrighting: Who shall have the job to register the book with the copyright office?  If the publisher is going to do this, is the publisher’s failure to do so for whatever reason a breach of the agreement?

        10. Marketing:  This is an essential element of these contracts.   Part of what an author is paying for is not only the printing of the book but some form of marketing and distribution of it.  Thus, it is very important that the obligations of the publisher be set forth with great particularity and should include what the publisher is not obligated to do.  Who has the right or obligation to put up and maintain a web site with regard to the book?  Take it to shows?  Submit it for reviews?    If the publisher has assumed any of these obligations, it would be very wise for the publisher to have a disclaimer of all warranties in terms of marketing, potential sales etc.

        11. Warranties by the Author: As in more traditional book deals, the author should make appropriate warranties since if the publisher is doing more than merely printing, the publisher has some legal exposure as the publisher and should have recourse against the author in the event of claims.

Conclusion

        There are, of course, many other provisions that go into the agreement and this article is not intended to be exhaustive.  As with any publishing arrangement, the details of the written contract are most important.  Thus it is in both parties best interests to have such an agreement prepared and not try to cut and paste one from some form book or colleagues.

© 2001 Ivan Hoffman

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This article is not intended as legal advice and is not legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship.
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