In recent months, I’ve seen the resurgence of several terrible publishing “offers” that business-savvy authors should learn to recognize and avoid. Some people might call them “scams” – though these particular “deals” are legal if an author signs them. They remind me of my law school contracts professor’s warning that “you can make as good a deal, or AS BAD A DEAL, as you are able.”
And if you accept one of these contract offers, you’ll be making a very bad deal indeed.
BAD CONTRACT #1: “WE PUBLISH, YOU PAY”
This type of contract requires the author pay for some or all of the costs to produce the book. Often, the costs are not stated, outlined, or listed up front, leaving the author on the hook for undisclosed (and often enormous) sums. Even where costs are listed, they usually exceed the amount the author would have to pay to self-publish the work. In many cases, the author could hire a professional cover designer, copy editor, and developmental editor and still not pay as much these contracts require.
The publisher, not the author, should be responsible for all the publishing costs in a traditional publishing deal.
Beware: sometimes “pay to play” terms lurk farther down, in the royalty language. A contract which pays royalties on “net receipts” and defines “net” as “amounts received by the publisher less the costs of editing and publishing the Work or less the Publisher’s actual costs to publish and sell the Work” is requiring the author to pay for the publisher’s costs. This doesn’t require payment out of pocket, but it’s still inappropriate.
Any time a publisher tries to shift the costs of publishing the Work to the author—either up front or in the royalty share—the publisher is altering the traditional model and asking the author to take on an unfair share of the risk.
One exception to this is an up-front, disclosed, “hybrid” publishing arrangement, where the author and publisher both understand and accept the cost-sharing terms. In a hybrid arrangement, the author shares in the publisher’s costs, but also receives a larger share of the benefits and (usually) an increased level of control over cover art and other parts of the publishing process. However, legitimate hybrid publishers are always up front about the nature of the arrangement and the fact that the author isn’t being offered a “traditional deal.” Anyone who tries to tell you that the “author pays” model is a “typical New York contract” or a “traditional publishing opportunity” is trying to take advantage of your ignorance.
BAD CONTRACT #2: “WE PUBLISH, YOU BUY”
A publishing contract should never require the author to purchase copies of the finished book. Most traditional publishing contracts permit the author to purchase finished copies, usually at a significant discount. Some contracts restrict what the author can do with those discount copies (for example, many publishers don’t want authors re-selling discount copies for a profit, because it cuts out the publisher’s profits on the book). However, traditional publishing contracts don’t ever require the author to purchase books from the publisher at any price.
One publishing “offer” I’m seeing a lot requires the author to purchase several thousand copies of the finished work—at list price, or sometimes at a discount—and to pay the publisher for them in advance! Some of these contracts require the author to pay the publisher tens of thousands of dollars on signing, yet still give the publisher full control over cover art, editing, and the content of the finished work.
A point to consider: if you, the author, have to buy five thousand copies of the finished work from the publisher…how many copies does the publisher have to sell someone else to make a profit? The answer, of course, is NONE—and these publishers often make little or no effort to sell the books they publisher to anyone other than the authors themselves.
NEVER sign a contract which requires you to purchase copies of the finished work. Legitimate publishers just don’t work that way. In fact, most legitimate publishers will give the author a few free copies of the finished work as a courtesy.
BAD CONTRACT #3: MANDATORY MARKETING SERVICES
A few savvy “publishers” have discovered that they can offer unsuspecting authors a “traditional publishing deal” – where the publisher pays the publishing costs and pays industry-standard royalties on sales – paired with a “mandatory marketing agreement” under which the author pays the publisher (or an affiliated marketing agency) thousands of dollars to market and advertise the finished book on the author’s behalf.
This is not a traditional publishing deal, and it’s not a good deal, either.
Once again, the author must pay thousands of dollars (some of these have marketing fees of $10,000 or more) up front, in return for usually-unspecified “marketing services.” Where services are specified, they usually include only things the publisher (or its “marketing arm”) can do in-house, such as writing press releases, making a trailer for the publisher’s YouTube channel, writing Facebook posts to promote the work, or other things the author could easily do for him-or-herself. The services may include “advertising design” but I’ve never seen one that actually included the cost of running the ads in any magazine, or even in online forums. The cost of hosting or running the ads is borne separately by the author.
As with the “We Publish, You Buy” scenario, this type of publisher doesn’t need to make the bulk of its money from selling books. When the publisher receives thousands of dollars from the author, up front, the publisher doesn’t need to sell any books to make a profit.
The short answer, and best advice, is this:
Never sign any contract which requires you to pay money to the publisher out of pocket.
Beware any contract that lets the publisher recoup publishing costs before your royalties are paid.
If you suspect your publishing deal isn’t quite as fair as the publisher claims—or even if it seems like a good one—always get advice from a lawyer or agent before you sign.
The career you save…will be your own.
Have you seen, or been offered, contracts with "pay to play" clauses like the ones outlined above?
Susan Spann writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. The second Shinobi Mystery, BLADE OF THE SAMURAI, released on July 15, 2014, and her third novel, FLASK OF THE DRUNKEN MASTER, releases in July 2015. Susan is also a transactional attorney whose practice focuses on publishing law and business. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium. You can find her online at her website, http://www.SusanSpann.com, and on Twitter (@SusanSpann).