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Negotiations and
Contract Processes - Blog
Note 1: Literary Agents are NOT lawyers. Nothing is a
substitute for competent legal advice. The information below is our
opinion only and should not be construed as legal advice.
This blog
contains an overview of what an agency does
as it relates to contract analysis and negotiation.
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As you will see from
the excerpt from our discussion with a client below, there are a
number of areas that most authors need help in 1) understanding, and
2) renegotiating...
1. The Grant and the Territory:
This paragraph grants to the
publisher, for the full term of copyright, practically all rights
in the printing of the book.
Under subsection C I do reserve those
rights not specifically granted, but I fail to see what those
rights could possibly be. The scope of the paragraph is too
limiting and serves to prevent me from acting to my own benefit.
For example, should I be offered a deal for the subsequent
granting of movie rights, the publisher could deny me in favor of
a lesser lucrative deal. I do not want to be limited in such a
way; I want the right to approve or disapprove any deals
subsequent to, or outside of, printing of the book.
2. The Manuscript: This paragraph
requires me to furnish a "fairly finished manuscript"
within a specified time. I believe I have already complied with
this. In subsection E the publisher can reject/terminate the
entire agreement if they determine that the work or any additional
material is not "satisfactory." But the contract does
not define what is or is not satisfactory, which reduces the word
to "any whim." I want satisfactory more clearly defined
so that I know what to expect.
4. Warranty: My attorney suggested I
consult you as to exactly what this paragraph means, especially
regarding industry standards/expectations, as it may be more or
less significant depending on the person.
5. Indemnity: We find indemnity being
defined as the requirement to restore the party of any loss.
Basically, should the publisher be sued in any way, shape or form
related to the agreement, I would have to pay them back if they
suffer any loss. But what if loss is incurred due to their own
actions or negligence in relation to the agreement? Then who pays,
and do they grant me the same indemnity? Aside from this, the
provision is very broad, and may be against public policy in
Washington; we are unsure about the laws of Virginia.
9. Earned Royalties; and 22. Option on next work: The
agreement stipulates no advance money will be issued, and earned
royalties are reduced below industry standards due to the fact
that I am a beginning author, yet it requires me to use the same
publisher for the next two "book length" works. Not
only that, if they turn down those subsequent books, they retain
the right of first refusal for the terms offered by another
publisher, and require me to sell to them those subsequent works
under the same terms as the
"beginning author" agreement. What
kind of deal is that? For the first work I'm at the beginning
author rate, and as a seasoned author I'm again at the beginning
author rate. Strike paragraph 22, and go back to paragraph 9 and
renegotiate.
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Here is another
commentary about another contract:
I've looked over the contract you attached. I
can tell you that the contract is slanted against you, the author.
The publisher is gaining rights that the author should hold onto.
Because of that, you are losing out on more money should the
rights turn out to be that worthwhile. Admittedly, not all books
sell all rights to the appropriate businesses simply because not
all books later become movies or bestsellers.
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Exceprts:
Yes,
we absolutely need to get permission to reprint Dr. XXXs articles.
I think your idea is a good one. We’ll start the letter off
explaining that we are requesting his permission, but that if he
likes the book, etc., would he be willing to contribute an
Introduction. Or even better, your letter could request permission
and I can write a separate letter convincing him to contribute a
Foreword. It’s your call.
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Option to Buy In Its Entirety - Would
you sell your script for $10,000? That's what this is all
about. There are a number of missing items from this
agreement, but in general, it precedes a real deal.
RIGHTS RELEASE CONTRACT FORM
In respect of the original/adaptation script, _______________
with ______ pages, written by
___________________________________________ This grant includes,
without limitation, the rights to secure copyrights for the work
anywhere in the world and to have and hold all rights of whatever
nature existing under the copyright herein transferred and all other
copyrights hereinafter secured.
I hereby release the rights to all benefits and liabilities
arising in respect of the aforementioned subject.
I hereby promise that I shall not coordinate my actions in such a
way that would hinder the recipient of the above-referred rights
from enjoying all benefits and discharging all liabilities arising
from the exercise and use of rights to the above named subject.
I hereby promise to abide by the above for the consideration of
$10,000.00 (ten thousand dollars) for full rights to the script.
This contract goes into effect upon the receipt of the purchase
price of the aforementioned $10,000.00 by the writer/his agent.
The writer will get full writing credit if and when this script
is made into a film.
The rights herein referred will belong to ________ upon receipt
of the purchase price (ten thousand dollars).
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