What we do when we look at your contract

14 December 2020 What

Advisor Catherine Fuller explains how to make the most of your free contract advice from the SoA

One of the many good things about SoA membership is our free, unlimited professional advice. Every year, our advisory team reviews thousands of contracts sent in by SoA members for confidential and clause-by-clause contract vetting. But what does this mean in practice? And how can you get the maximum benefit from the contract commentaries we provide?

There are some simple things you can do to help us help you

Send in your query once. This helps us treat all members fairly and avoids several advisers inadvertently vetting the same contract. All contracts and queries are logged; we aim to respond within 5-10 working days, though we always try to do this more quickly depending on the volume of queries. This also allows for further research and for discussion with other advisors if necessary. Don’t feel pressured to sign your contract before you are ready. We are your professional union and no reputable publisher should object to you taking the time to have your agreement thoroughly vetted. If you haven’t heard from us after a week,  get in touch in case your email has gone astray. You’ll find further details on our Ask an Advisor page.

Give as much background information as possible. It might be your very first contract (congratulations!) or your fifth book in a series. It really helps us to know how much you’ve already discussed with the publisher and if you’ve already agreed any changes. Each contract is an individual negotiation and different things matter to different people. For example, perhaps it’s a low advance but you may have negotiated a better royalty in compensation. Context is all-important.

Who we are… and who we’re not

Our team of in-house advisors are highly experienced in UK publishing and have been helping authors for many years. We all bring our own interests and experience to specific areas such as translation, scriptwriting or graphic novels. We’re not lawyers and we’re not insured to give definitive legal advice. If we can’t help or we think further advice is needed, then we will be happy to signpost additional legal and professional support and resources.

We look at what’s in it

Our priority is to explain the terms in your contract and their practical implications for you and your work as clearly as possible .

We’ll often refer to one of our guides such as Publishing Contracts or the Translator-Publisher Contract and Commentary, which list the key terms we would expect to see. All these guides are free to SoA members, but it’s important to remember that they are a tool to help you and are not just to be used as a stand-alone check list. We also refer to C.R.E.A.T.O.R., our campaign for fair and transparent contracts. Many of these provisions are already included in European law and we continue to campaign to ensure the provisions of the EU Copyright Directive are also included in UK legislation.  

As we read through the contract, we consider the range of rights you are granting and the income you can expect to receive in return. We go through clause-by-clause, assessing for fairness, demystifying the terminology and breaking down complex issues. 

Broadly speaking, the terms we look at fall into three categories:

Clarifiers make the contract more transparent and easier to understand. A ‘bad clause’ is not just about bad or poor terms. Vagueness and ambiguity can be a problem, too, and often cause difficulties at a later stage. A clause may be enforced in ways that don’t reflect intentions, or it may be unenforceable at law, meaning that it cannot be relied upon.

For example, we still see reference to ‘volume form’ – despite it still not being at all clear whether this refers only to the print edition or extends to include an eBook version. If it includes an eBook version, does this also include any enhanced version, or indeed any other digital edition?  If you are intending to grant only print rights, then you need to ensure the grant is worded appropriately – i.e. ‘print volume rights’.

Sweeteners are generally incentives. They can be used to recognise and reward success and to help ensure that both parties’ interests remain aligned over the life of the contract. For example, a publisher may not be able to agree to offer a royalty on each copy sold,  in which case we would expect them to do so after sales exceed a certain level and once the’ start-up costs’ of producing the book have earned out. There can be provision for a higher royalty or an additional advance to be paid out where sales exceed expectations.

If that’s not possible, you might get agreement that additional payment will be negotiated in good faith down the line. That’s a softener. Softeners give additional nuance to contracts beyond the options of what both parties can or cannot do. They can also be a useful negotiating tool. Common terms include ‘good faith’, ‘best endeavours’ and ‘reasonable’.  For example, warranty provisions are a key part of any publishing agreement. These clauses ask the author to confirm – amongst other things – that their work is not unlawful. We like to see this type of promise qualified so that it only applies to ‘the best of the author’s knowledge and belief’.

We also look at what isn’t there

A short contract with a lot left out can be just as problematic as a longer one with a huge amount of detail. Some omissions can be straightforward, such as a lack of detail about how and when you will be paid. More seriously, termination and warranty clauses can be omitted.

As much of our work is taken up in dealing with the problems in existing contracts as it is with looking at new ones. Never assume it will be all right and you can sort it out later! If something is important to you, whatever it is, make sure it is clear and in writing. 

Getting the best out of our advice

We will rarely tell you exactly what to do! We’ll explain, suggest, recommend and point out the implications of doing – or not doing – certain things. We’ll flag those issues that are of serious concern and we’ll draw on our collective experience of industry practice and parameters to draw a distinction between those amendments that might be realistic and those that are more ideal.

We want to empower you to take control of your work, to understand the rights you’re granting and what you can expect in return. As you read your contract, think about where you can clarify the language, soften the impact or sweeten the deal. What terms are the most important to you and where could you modify the contract? Never be afraid to query a poor term or feel forced to sign anything that you don’t understand.

What happened next?

Let us know how the outcome of your negotiations. Our advice is based on our experience and we can’t do that without you. Letting us know where you were able to make changes – and where you weren’t – helps us to improve terms for everyone.

Illustration © ngupakarti

  • Watch our contract advisors discuss what they look for in publishing contracts on Vimeo here – from our 2020 SoA @ Home Festival
  • Members can read all our SoA Guides for free
  • Check out our Before You Sign series for specific advice