| Dave, I just got a contract for a book from a | | | | Illustrations replacing those originally submitted with |
| publisher that I haven't worked with before. | | | | the Book, shall be charged to the Royalty |
| These long, tedious legal documents just befuddle | | | | Account. |
| me, however! Would you mind spinning through | | | | I think it's important to specify that it depending |
| this and seeing what you think about the terms | | | | on why these changes are required. If there's a |
| and clauses herein? | | | | new version of the program and the screenshots |
| Here are my thoughts on this contract. Note up | | | | need to be replaced, or if there's a major |
| front that I'm not a lawyer and haven't received | | | | corporate reorganization or change in the laws or |
| any particular training in contract interpretation. I | | | | economy, that's not a cost the author should |
| do have an MBA and have spent lots of time with | | | | incur. It's just part of the risk of trying to capture |
| lawyers reading and rewriting contracts, however, | | | | in print an element of our fluid, ever-changing |
| so I think my advice will be helpful. Also, as a note | | | | world. |
| to my faithful readers, I cannot review contracts | | | | COPYRIGHT - The Author hereby expressly |
| for you without charging for my time, and frankly | | | | grants, transfers, and assigns to the Publisher full |
| you'd be much better off asking a lawyer to help | | | | and exclusive rights to the Book, including, without |
| you out anyway. :-) | | | | limitation, the copyright in the Book, all revisions |
| Rather than reproduce the entire contract, I'm | | | | thereof, and the right to prepare translations and |
| going to just excerpt the highlights and follow | | | | other derivative works based upon the Book in all |
| them with my comments or thoughts. I am | | | | forms and languages... |
| deliberately not talking about royalty percentage, | | | | And what payment does the author see if the |
| advances, and other specific numbers because | | | | publisher prepares a translation or derivative |
| those aren't really appropriate to publish in a public | | | | work? Curiously that isn't specified in the contract |
| forum of this nature. | | | | as far as I can see... |
| .. there shall be no royalty payment on copies of | | | | The Publisher will register copyright in the Book in |
| the Book sold at less than Publisher's cost... | | | | the name of the Publisher in compliance with the |
| Determined by? Audited by? Actual number? | | | | United States Copyright Law. If the Publisher |
| These vague and hard-to-enforce clauses always | | | | supplies artwork (including artwork for the cover |
| make me anxious because it's built on trust | | | | of the Book), it may register copyright separately |
| without any ability for you to audit the books | | | | therein in a manner satisfactory to the Publisher. |
| (with most publishers, at least). What if the book | | | | Note that there are publishers who let the author |
| has a retail price of $19.99 and the publisher | | | | retain copyright of the material while the publisher |
| decides that $10 is their cost? Then any book | | | | copyrights the overall work. A much nicer |
| sold at any sort of discount are 'less than the | | | | approach, in my opinion, much more respectful of |
| publisher's cost' and you don't see a dime. | | | | the author. |
| NET RECEIPTS - For purposes of this Agreement, | | | | Tip to new publishers: the author can retain |
| the Publisher's "Net Receipts" from sales shall | | | | copyright without infringing on your rights of |
| mean net profit received by the Publisher from | | | | publication or compilation copyright. |
| sales of the Book, less credits, returns and funds | | | | The Author represents and warrants that, except |
| required for reprints. | | | | as previously disclosed to the Publisher in writing, |
| Funds required for reprints is a printing / publisher | | | | the Author has not aided in the preparation of |
| cost of business, assuming that I'm understanding | | | | and is not under any obligation to any other |
| what's being referenced, and that cost shouldn't | | | | publisher or person to prepare any publication |
| affect the author. This clause is bogus and should | | | | directly competitive with the Book, or which could |
| be eliminated. | | | | interfere with his or her performance of this |
| All monies received for direct sales will be held for | | | | Agreement or interfere with or impair the sale of |
| a period of 12 months to allow for credits and | | | | the Book. |
| returns. | | | | And here's the first glimmer of the non-compete |
| That's ridiculous. All my MBA "future value of | | | | clause. This is a no-go. You need to have it either |
| money" instincts cry out on this one. If there's a | | | | MUCH more specific (like "author is under no |
| 'hold on reserves' that floats from payment to | | | | obligation and shall not produce any other work |
| payment, then que sera, sera, but having a 12 | | | | that is specifically addressed at the introductory |
| month lag is exploiting the system without any | | | | Bash shell script programming audience, to be |
| benefit to the author. I'd reject this. | | | | marketed online through Amazon marketplace |
| TAXES - All payments made under the terms of | | | | and other ebook venues") or strike this entirely. |
| this Agreement will be subject to USA Federal | | | | The publisher doesn't own you, the author, they're |
| income tax withholding, as required by the United | | | | just buying your words. |
| States Internal Revenue Code. | | | | NON-COMPETITION - The Author agrees that so |
| No, these are royalty payments and I'm pretty | | | | long as the Book remains in print, the Author will |
| darn sure that thepublisher doesn't have to worry | | | | not participate in the preparation or publication of, |
| about taxes, just report them asroyalty income | | | | or allow his or her name to be used in connection |
| for the author to the IRS. If you read the [http:// | | | | with, any work which might compete with the |
| <a target=]" target="new">1099MISC | | | | Book or the exercise of any rights granted |
| filinginstructions on the IRS site, it explicitly says | | | | Publisher hereunder. The Author may, however, |
| "include in this box grossroyalties (before reduction | | | | draw on and refer to material contained in the |
| for fees, commissions, or expenses) paid by a | | | | Book in preparing articles for publication in |
| publisherdirectly to an author or literary agent or | | | | professional journals, for teaching purposes, and |
| paid by a literary agent to an author." | | | | for delivery at professional meetings and |
| The only instance where this 1099MISC might not | | | | symposia, provided appropriate credit is given to |
| be relevant is if the author is overseas, in which | | | | the Publisher and the Book. |
| case the publisher needs to pay taxes on the | | | | Which, of course, is unacceptable. If I write a |
| amount that's being paid to the author. Not sure | | | | book for this publisher called, say, Fifty Ways to |
| exactly how that'd be structured, but any halfway | | | | Hack your Shell (Hey! That's a good title!) I would |
| decent accountant should be able to shed some | | | | be prohibited from ever writing about shell |
| light on this topic. | | | | programming or, ostensibly, any Unix topic that |
| ACCOUNT - All royalties and other income | | | | included discussion of shells because it *might* |
| accruing to the Author under this Agreement shall | | | | compete with the book. |
| be credited to an account maintained on the | | | | This needs to either be much, much more tightly |
| records of the Publisher (the "Royalty Account"), | | | | defined or removed entirely. |
| which Royalty Account will be charged for all | | | | Actually, I hate all these non-compete clauses |
| amounts paid or payable to Author, including any | | | | because they're where you can really see how |
| advance payments, and for all amounts Author is | | | | most publishers stack the deck against the |
| charged, or obligated to pay, pursuant to this | | | | author, even though it should be a fair, equitable |
| Agreement. | | | | and professionally respectful relationship. |
| This smells of some sort of cross-accounting | | | | OUT-OF-PRINT PROVISIONS - If at any time, the |
| trick, somehow. I'd kick this out. Each book should | | | | Publisher determines that the demand for the |
| have its own account or it should be explicitly | | | | Book is insufficient to warrant its continued |
| stated that the account will not interweave | | | | publication, the Publisher may declare the Book |
| credits and debits from different projects. | | | | out of print. In such event, the Author shall have |
| OVERPAYMENT - If any person comprising the | | | | the right to purchase the Publisher's stock of the |
| Author has received an overpayment of money | | | | Book, if any, at one-quarter (1/4) of the |
| from the Publisher or has an outstanding | | | | Publisher's established list price, but not below cost. |
| monetary obligation to the Publisher, whether | | | | That's just daft on the part of the publisher. If it's |
| arising out of this Agreement or any other | | | | out of print, then they have a warehouse |
| agreement with the Publisher, the Publisher may | | | | problem and they should just liquidate the |
| deduct the amount of such overpayment or | | | | remaining books to the author even at just |
| outstanding obligation from the Royalty Account | | | | shipping costs. It'd be cheaper than having to pay |
| or any sums due to such person under this | | | | for them to be destroyed... |
| Agreement. | | | | If the Publisher declares the Book out of print, |
| And there's the cross-accounting clause. Debt with | | | | then upon the Author's written demand, the rights |
| one book should not affect credit (royalties) with | | | | granted by the Author under this Agreement will |
| another book. Absolutely reject this. Each book | | | | revert to the Author... |
| project should stand on its own two feet. | | | | I'm not sure that's consistent with copyright law. |
| AUTHOR DISCOUNT - The Author shall also be | | | | This is really why it's better to have the author |
| entitled to purchase additional copies of the Book | | | | retain copyright because then once the book goes |
| for the Author's personal use (self-promotion) at | | | | out of print the material naturally falls back to the |
| a discount of twenty-five percent (25%) off the | | | | author anyway, without remembering to notify |
| suggested retail price of the Book, plus the cost | | | | the publisher in writing. |
| of shipping and handling, while the Book remains in | | | | I hope that this review has been helpful and |
| print. | | | | informative. What you're willing to accept in a |
| That's ridiculous. The book should be available to | | | | publishing contract is directly affected by why you |
| the author at cost plus shipping, not at a discount | | | | are writing the book in the first place, so think |
| rate that's less than the discount a typical | | | | through your motivations, the big picture, and |
| bookstore sees! At least 45% off, if not 60% off | | | | your career before you decide exactly what you'll |
| the cover price. The publisher shouldn't try to | | | | accept and what you'll insist must be removed. |
| exploit the author in this fashion. Theoretically, the | | | | For the record, I have rejected contracts and lost |
| author and publisher are partners on this | | | | writing gigs because of unacceptable clauses. I |
| publication, after all. | | | | think it's worth it, but you, in my position, may |
| AUTHOR'S CORRECTIONS - Author alteration | | | | not think so. |
| costs in excess of ten percent (10%) of the cost | | | | Again, just to reiterate, this is not offered as legal |
| of the original composition, and any expenses | | | | advice and I disclaim any responsibility for your |
| incurred by the Publisher in the making of | | | | acting upon anything I've said herein! |