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Thread: Subsidiary rights contract question

  1. #1
    New Fish; Learning About Thick Skin
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    Subsidiary rights contract question

    For those who have negotiated a number of contracts, I'm looking for some input on the matter of such subsidiary rights as electronic, foreign, etc.

    I understand you shouldn't take the 50/50 split that seems to be the standard offer, but what is an appropriate split for electronic rights? Is that the same for foreign?

    Any response appreciated. Thanks

  2. #2
    Your Genial Uncle Absolute Sage James D. Macdonald's Avatar
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    Is the publisher you're talking with capable of exploiting the rights? That should be the first question. If none of their books are in translation why do they want translation rights?

    But ... you're probably going to get a 50-50 split on the subsidiary rights that they do keep. You may get 'em to up your advance, depending on how much they want 'em, and how much they want your book.

    What's your agent say about this? She should know what's just boilerplate for them, what the rights are actually worth to them, and what's a deal-killer.

  3. #3
    Ooo! Shiny new cover! Absolute Sage Cathy C's Avatar
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    Happy to oblige, Jenken. Here's an article that I did on Subsidary Rights for a newsletter. Hope it helps!


    *****************
    READ ‘EM THEIR RIGHTS, DANNO!

    Nothing is more exciting than receiving an advance check from a real, live publisher for your book! Well, okay – getting the royalty check is pretty fun, too. And then, when another advance check arrives from the second publisher...

    Huh? What other advance check, you say? What second publisher?

    Ah! Welcome to the beauty of writing fiction novels. You can sell your book over and over, to different people, and get an advance every time! There are a dozen different ways to make money from that one brilliant manuscript, if you know your rights. This article is your introduction to the world of subsidiary rights.

    What is a Subsidiary Right? Any right in a novel that is less than the first publisher’s claim to print and sell the book (called the "primary right") is known as a "secondary," "serial" or "subsidiary" right. Many authors have heard of audio books, eBooks, book clubs, foreign editions and movies based on a novel. These are all subsidiary rights, and an author (or agent) who knows their stuff can ensure that the lion’s share of the profit from the sale of these rights will go to the author. However, it's important to decide whether you have the capability to market these rights yourself. Since the publisher often has connections in the industry, and hopes to make as much money from your book as possible, sometimes, it's best to consider leaving the rights with the publisher. Just make sure to ask whether they are capable. We’ll take a second to go through each standard right, what it is, who normally keeps the right (publisher or author) and what impact it might have on an author to give it up.

    1. First Serial Rights.

    What it is: This right is traditionally used for magazine and short story work. A first serial right is the right of a periodical to publish a manuscript for the first time. When the right is limited (or not) by a geographic region, it can be called by a common term, such as "First North American Rights" or "First World Rights." The printing of all or part of the manuscript can occur before or after primary publication.

    Who normally keeps it: For a non-fiction book, often the publisher keeps this right. In a fiction novel, the author normally keeps it.

    Impact if you give it up: When kept by a publisher, royalties of around 50% for the sale of first serial rights go to the author. This is a good deal for non-fiction books, because articles can be carved from the text and printed in scholarly or popular publications. This both increases the visibility of the book, and encourages readers of the magazine to purchase the book. However, for fiction authors, this same scenario can be devastating to their wallet. Imagine what could happen if an unscrupulous publisher were to carve your manuscript into a number of sections and proceeded to sell the rights to print it in a low-quality magazine. The publisher would receive 50% of the price, the book would be published (although few would see it), and they would never actually have to put the book out in print! Of course, this is an extreme scenario, but it has occurred in the past.

    2. Second Serial Rights.

    What it is: Also known as "reprint" rights, this allows a periodical to print an excerpt or section of a book or an article after it has been published somewhere else first.

    Who normally keeps it: Reprint rights generally stay with the publisher. This allows them to market the book aggressively by offering blurbs and excerpts to magazines which has readership of a similar genre. Again, royalties of 25-50% follow these rights.

    Impact if you give it up: Immaterial, because the publisher won’t give it up. They would not be allowed to reprint the book or offer a second edition without these rights.

    3. One-Time Rights.

    What it is: A one-time right is just what it sounds like, and is sometimes called a "simultaneous" right. It is generally non-exclusive, meaning that the author can print the exact same article, book or whatever somewhere else at the same time. This doesn’t show up in novels very much, but sometimes you will see this pop up in an anthology of shorts. This allows well known authors to publish in an anthology something that also appeared in a magazine without fear of stepping on toes.

    Who normally keeps it: This is an author’s right but, as stated, you’ll seldom see this in a book contract.

    Impact if you give up: Since most publishers want an exclusive right to the use of a book before they offer royalties and advances, loss of one-time rights is implied. Because you’re being paid for the exclusivity, there is no impact to the author.

    4. All Rights.

    What it is: As the name implies, if you see a contract where the publisher is seeking All Rights to your book, you are forfeiting the ability to EVER use that work again. While your book doesn’t become the equivalent of a work for hire or ghost written work, because your name is on the cover, it might as well be. This can sometimes happen with a book written inside a specific "universe" such as Star Trek, Dungeons & Dragons, or a television tie-in, because the characters belong to the owner of the world, so any stories therein are also their property.

    Who normally keeps it: In All Rights, the publisher gets EVERYTHING. Once your contract is fulfilled, usually by payment of a single lump sum in exchange for your manuscript, you go on your merry way and forget the book exists, other than as a line item on your resume. There is a contest going on at this moment, sponsored by Wizards of the West Coast, for a fantasy novel written inside the Dungeons & Dragons roleplaying game. The rights requested are All Rights, and payment is $10,000. That is all the author will ever see, and the manuscript will be the property of the publisher, like a vehicle or a boat.

    Impact if you give up: If you have written an original work that is not a tie-in novel to an existing universe, and accept a contract for All Rights, you have given up a great deal, indeed! You will seldom have the opportunity to comment on edits made to the work by the company, and will have no say in any marketing, distribution or print runs. It is likely that you will never receive royalties for sales, or in the event of sale of any other subsidiary rights. As stated, All Rights are usually accompanied by a lump sum payment. If royalties are paid at all, they are often based on NET sales, so that you will never see a dime, because "overhead" will eat the money.

    5. Electronic Rights.

    What it is: Electronic publishers have become commonplace and, in fact, virtually interchangeable with print publishers. But in adding the term "electronic book" to our lexicon, we’ve accidently forgotten that electronic rights include a wide variety of other things, so that by giving up "electronic rights" the author is giving more than they planned. CD-Rom anthologies, interactive on-line games, databases and other media are lumped together in the delivery of rights. While unanticipated by an author, each of these can have value.

    Who normally keeps it: I’m hearing more stories about authors who have successfully maintained a separate electronic publisher and print publisher (where the two companies have no ties to each other). This is somewhat new, since the case of Random House v. Rosetta created a crack-down mode of print publishers refusing to negotiate the electronic rights. If possible, the author should attempt to keep electronic rights.

    Impact if you give up: Obviously, on-line video and MUD (Multi-user dimension) games have become popular, and if a book has the potential for this use, it is important for the author to recognize that use and protect it for him/herself. If the publisher insists on keeping the electronic book usage (since many print publishers have established separate eBook subsidiaries), then attempt to withhold at least on-line games, CD-Rom anthologies and databases. None of us can see the future, and these rights might become quite valuable years, or even months down the road.

    6. Audio Book Rights.

    What it is: Many people have heard of "books on tape." What a lot of people don't know is that there are companies that contract with print publishers (or authors directly) to turn the book into this format.

    Who Normally Keeps It: This is what is known as a "negotiable" right. Traditionally, the publisher’s boilerplate contract assigns this right to them. It’s the duty of the author (or agent) to keep this right for sale.

    The impact if you give it up: Well, of course, the primary impact is that the publisher will sell the rights at their own leisure at terms agreeable to them. The author will generally get a cut of the pie, but the author could get the entire pie by selling the rights themselves.

    How do you find an audio publisher: The easiest way to find an audio publisher is to check out the bookstore to find names of other books in your same genre. If you write, for example, paranormal romance, look for audio offerings by Laurell Hamilton or Sherrilyn Kenyon. The same is true for other sub-genre.

    Important things to keep in mind when making your book into an audio tape:One of the prime ingredients to a successful audio book is the choice of the narrator. Audio companies spend a great deal of time searching for the correct voice to bring a book to life. Sean Connery or James Marsters may be terrific speakers, but having them orate a book such as "Harry Potter" probably won't sell, because customers who have read the book expect the narrator to be a teenaged boy. Likewise, a young female voice like Hillary Duff will help sell many of author Judy Blume's works, but probably won't be selected for "On Golden Pond." Aspiring authors need to consider placing hints in their books that would assist an audio publisher in selecting a voice. A simple line, such as, "Mary knew that John was startled by her rich alto. Everybody said that she seemed too young for such a strong voice," is a huge help for an audio publisher. Now they know that if the book is told from Mary's point of view, they need to find a deep voiced narrator. Clues regarding accents are also useful. Does the hero have an Irish Brogue? How about a thick Brooklyn accent or southern twang? Readers pick up on this in the text, so that when a book is placed in audio format, they have an idea of what they expect to hear.

    7. Translation Rights.

    What it is: Simply placing an American book in a German bookstore (or vice-versa) isn't a foreign translation. A foreign publication entails taking the original text and translating it into the native language of the target country. A local publisher (such as Czech publisher Triton, or Mexican publisher Random House Mondadori) will purchase the rights to translate and print a book in their home country. It will probably be given a new cover, which speak to the tastes of the foreign readers, and will be available for sale only in that country (or countries, depending on the language)

    Who normally keeps it: Again, this is an issue of negotiation for single title books. In category romance, the publisher keeps this right. It is at their discretion whether to offer the rights for sale, when to make the offer, and how to structure the deal.

    The impact if you give it up: Translation rights are big bucks for an author! Giving up these rights in single-title are the equivalent to cutting your own throat.

    How do you find a foreign publisher: There are a number of places, including publications such as Publishers Weekly where an author can advertise the translation rights. Of course, the better the sales in the U.S., the higher the likelihood the rights will get picked up. Even a few thousand dollars is money in hand!

    Important things to keep in mind when selling translation rights: Translating any book is a very difficult task, because often the "flavor" of a book can easily be lost because of differences in word availability. American English has the highest number of available words in the world! It's very important for the author to be involved in the translation process to ensure that the product reaching the foreign reader is as close as possible to the book that everyone in the home country already loves. It won't do your pocketbook any good if the translation reads oddly and nobody buys it. But if the author doesn't speak the target language, how can he/she help? One way is to find a bi-lingual reader that is already a fan of the book. This can be found by asking on internet loops and groups or at a local university. Often a "friend of a friend" or a professor might be the perfect person to know that a car called a "Nova" will be laughed at in Mexico, because "No Va" means "No Go". This is especially critical for slang or common phrases. The heroine "crossing her fingers for luck" in English should translate to "pressing her thumbs for luck" in German. If the slang phrase is translated word for word – even though it might be correct – the reader still will not understand it. Care should be taken by an aspiring author to consider giving hints that will assist a translator in finding the appropriate phrase. Once a deal is made, contacting the foreign publisher to offer assistance could well be worth the effort.


    8. Book Clubs.

    What it is: Book Clubs are a wonderful way to reach new readers. Book clubs, such as Science Fiction and Fantasy Book Club, have a member base (similar to Columbia House Music Club), where readers sign up to receive a book a month (or quarterly), not knowing what book will be next. Some readers like the randomness, because it allows them to find new authors in their preferred genre without spending the time to read reviews or wander bookstores.

    Who normally keeps it. This is regularly retained by publishers. Often the publisher contracts directly with book clubs to place titles, and the author receives a cut of the profit. Of course, because of the built-in nature of the membership, sales are brisk and can be quite profitable.
    Impact if you give up: Immaterial, since the publisher will usually keep them.



    9. Dramatic and Movie Rights.

    What it is: Of course, this is every author's dream — to have their book appear as a major stage play or motion picture. Whether it is made by a Hollywood studio or Broadway production, or a small independent production or off-off-off Broadway, authors can make from $10,000 to many million on the sale of the dramatic and/or movie rights.

    Who normally keeps it: Well, of course, both sides WANT these rights! But it’s a sticking point with a lot of publishers, who understand how much money is involved. It can actually be a deal breaker, which is why many authors give up the rights to save the book deal. But if you know you have a hot property that is likely to be a perfect movie, it might be best to shop publishers until one is willing to work a deal for the best dramatic and movie royalties.

    Impact if you give up: Pretty obvious, isn’t it?? Think Harry Potter!

    How do you find a screenwriter or playwright. Much like audio and translation rights, check to see which studios or directors produced movies/plays similar to your book. Then advertise where the buyers will see it. Having a literary agent with in-house dramatic rights agents is very useful. Check to see if your agent has the expertise to do a movie deal, or has an agreement with another agent to co-op the duties.

    Important things to keep in mind when selling movie or play rights: The best thing that an author can do if a book is selected for filming is to step back and let the director have their head. Very seldom is the author invited to comment on the film or be involved in screening actors for the roles. "Harry Potter" author J.K. Rowling was a notable exception. The director was a fan of the book and kept in close contact with the author, asking advice on background sets and clothing, which has made the films very close to the books. But in the case of "Interview with a Vampire," author Anne Rice admits that she never would have selected Tom Cruise for the part of Lestat, but admitted that once she saw the movie, he's forever burned into her mind in the role. Many times, the movie is only loosely based on the book, because parts of the book wouldn't translate to film profitably. This can be difficult for an author, but it's important to remember that they have paid for the right to make changes, and the readers don't blame an author for a poor film adaptation.

    **************

    Hope this helps!
    Last edited by Cathy C; 06-29-2005 at 07:30 PM. Reason: Oops! Combined two articles, but forgot to renumber items.
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    "Cathy Clamp is a visionary author, creating new worlds that are both strong and vividly drawn. Adventure and excitement at its best." -- Yasmine Galenorn, New York Times Bestselling Author

    "A struggling community under attack, compelling action, characters struggling with dark secrets ... FORBIDDEN hit all my favorite notes, and I love the rich world of the Sazi!" - Rachel Caine, New York Times Bestselling Author

  4. #4
    On a wing and a prayer aruna's Avatar
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    Interesting, Cathy, thanks!

    May I add that if you have an agent you shouldget considerably more than 50% for translation rights. Most agents negotiate 20% for foreign rights; ie, 20% commission, all the rest is yours to keep. Your home agnet gets 1o% of that, another agent in the country of translation gets the other 10%.

  5. #5
    Writer Beware Goddess Absolute Sage victoriastrauss's Avatar
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    Quote Originally Posted by aruna
    Interesting, Cathy, thanks!

    May I add that if you have an agent you shouldget considerably more than 50% for translation rights. Most agents negotiate 20% for foreign rights; ie, 20% commission, all the rest is yours to keep. Your home agnet gets 1o% of that, another agent in the country of translation gets the other 10%.
    That's only if your agent negotiates for you to keep the translation rights. If the publisher keeps them, the publisher will sell them (or try to) and the agent won't be involved.

    If you have an agent, or are a savvy negotiator yourself, you can often negotiate to keep a wide range of rights, including dramatic rights. My agent routinely negotiates to keep her clients' dramatic rights, as well as most foreign and translation rights.

    For some large publishers, electronic rights are a deal-breaker. They simply will not take a book unless e-rights are attached, even if they have no actual plans to exploit them. The best way that you can deal with this is to include a provision that if the publisher uses or licenses the e-rights, they'll come back to you to negotiate the terms.

    - Victoria

  6. #6
    New Fish; Learning About Thick Skin
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    Thanks all. This information has been fantastic, especially that article Cathy.

    As background, this is pretty small publisher. The standard contract has some good and some bad points, but there is room for negotiation. I'm just trying to find out what other contracts say so I can have an example at the ready. I posted this on the Bewares board, but I'll ask it here as well:

    When it comes to the term of the license, what do some your contracts read? This one states "The license herein granted shall be for the term of the United States copyright and during any renewal or extension thereof." Then there's another sentence referring to a termination clause later on that looks standard.

    Obviously that is waaaaay too long for a license term. Should it be something like 18 months after manuscript submission? Two years after publication? I'm not sure.

    Again, any advice on this will be much appreciated. Thanks in advance.

  7. #7
    Your Genial Uncle Absolute Sage James D. Macdonald's Avatar
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    Term of copyright? Life plus seventy years? I don't think so!

    http://www.sfwa.org/contracts/hc_cont.htm

  8. #8
    Gone
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    Jenken, you're still in the Bewares forum. *g* Is this is Better Be Write you're talking about? If so, I had a question about something you posted in your previous thread. You said there was a clause in your contract that gave your publisher "right of first refusal." Do you mean that you have to submit it to them before you submit it to anyone else and then can negotiate if they want the book, or that you have to take any offer they make? The first is pretty standard; the second isn't.

  9. #9
    Your Genial Uncle Absolute Sage James D. Macdonald's Avatar
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    Two things:

    1) You can't negotiate if you aren't willing to walk away from the table.

    2) A book that's publishable by one is publishable by many.

  10. #10
    New Fish; Learning About Thick Skin
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    Quote Originally Posted by Aconite
    Jenken, you're still in the Bewares forum. *g* Is this is Better Be Write you're talking about? If so, I had a question about something you posted in your previous thread. You said there was a clause in your contract that gave your publisher "right of first refusal." Do you mean that you have to submit it to them before you submit it to anyone else and then can negotiate if they want the book, or that you have to take any offer they make? The first is pretty standard; the second isn't.
    Hate it when I forget where I am!! And after looking more closely at the first refusal clause, it was the standard "we get first look but you can turn us down if we offer". The wording threw me off at first blush.

  11. #11
    New Fish; Learning About Thick Skin
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    Quote Originally Posted by James D. Macdonald
    Two things:

    1) You can't negotiate if you aren't willing to walk away from the table.

    2) A book that's publishable by one is publishable by many.
    I understand that. This my due diligence to determine whether this particular publisher is the one that I want to publish my book.

  12. #12
    Empirical Storm Trooper MadScientistMatt's Avatar
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    Cathy,

    Could you elaborate on the problems with royalties based on the net? I've been working on an automotive book, and it appears that many commercial publishers in that field (including ones I find in my local bookstore) pay on the net.

  13. #13
    Your Genial Uncle Absolute Sage James D. Macdonald's Avatar
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    While some non-fiction publishers (primarily in the computer-books area) use "net" as their standard -- "net" gives you a) a lower over-all royalty rate, and b) is an open invitation to abuse.

    The reason some non-fiction publishers use "net" is becaue their books get dated quickly. After not-too-long they won't even be able to give 'em away. They have to start discounting steeply, early, and can't afford royalties based on cover price.

    Unfortunately, they're trying to prop up their profitability by lowering the pay of the group that's already the lowest paid: The authors.

    So, if they won't budge on "net," get the biggest advance you can, assume that's all the money you're ever going to see from that project, and move on.

  14. #14
    Ooo! Shiny new cover! Absolute Sage Cathy C's Avatar
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    What Jim said. The problem that leads to abuse is, "What are the expenses that will be subtracted?" Obviously, paper and ink and cover art and the editor's time, but what about the publisher's mortgage payment or food? (Yeah, it can happen if the publisher is a sole prop and s/he works out of his home...) The trouble with a lot of smaller publishers is that they're not willing to take a financial risk, so you might well get 15% or 30% of a buck or two per book, after the expenses are deducted.


    First, try to get it changed to the list price. What Jim said about the computer biz is absolutely true, but several larger publishers do use list(McGraw-Hill being a notable exception). If you don't have an agent, you might see if you can either a) get the expenses to be deducted actually stated on an attachment, so you can hold them to something or b) add a provision that the expenses will not exceed X% of the list price. Maybe 5-10% or so. Then at least you have a known quantity. It keeps people a touch more honest.
    Last edited by Cathy C; 06-30-2005 at 02:01 AM.
    Want FREE reads? Click here!

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    Now on Facebook! Come friend me!



    "An entertaining (and occasionally very dark) mystery." -- Locus

    "[Shapeshifter] fans are about to hit the jackpot as Clamp returns to re-energize this amazing series. Searching for layered plotlines and complex characters? Look no further, as Clamp truly delivers!" -- RT BookReviews

    "Cathy Clamp is a visionary author, creating new worlds that are both strong and vividly drawn. Adventure and excitement at its best." -- Yasmine Galenorn, New York Times Bestselling Author

    "A struggling community under attack, compelling action, characters struggling with dark secrets ... FORBIDDEN hit all my favorite notes, and I love the rich world of the Sazi!" - Rachel Caine, New York Times Bestselling Author

  15. #15
    Your Genial Uncle Absolute Sage James D. Macdonald's Avatar
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    Hollywood has made proving that no movie ever made has had a "Net" profit into an artform. We don't need the same sort of thing to get a foothold in publishing.

  16. #16
    Apex Predator Jaws's Avatar
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    Old Math

    Here's an example, with some numbers, that might make the problems clearer.

    Assume that you're publishing a trade paperback in a "non-hot" area (e.g., it's not a diet book!). That might get you royalty escalators that look like this:
    8% on the first 5,000 copies
    10% on the next 10,000 copies
    12% thereafter
    and an advance of around $3,500. (You did mention a field with a lot of mid-sized publishers.) The book's list price is $19 (actually $18.99, but I rounded off to make the rest easier).

    So, sports fans, how many copies of the book must you sell to recoup your advance?
    • In a list-price-based contract, each of the first 5,000 copies will result in a royalty of $1.52 (at 8%). To make $3,500, you'd have to sell 2,303 copies of the book. For a book of that nature, presuming it's good enough to get into the libary market, that's doable. Every copy from number 2,304 on earns you royalties beyond your advance.
    • In a net-sales situation, for this kind of book, figure that the publisher's net will be about 55% of the sale price. The standard long discount to bookstores is 40% (at present, although some of the bigger chains are pushing to increase it), but this kind of book is likely to go through both deep-discount outlets (current standard discount is 55%) and "short discount" to certain other non-book retailers. The average discount will probably work out to a hair over that 40%… and then there's slippage and other charges back. That means, in the end, that each of the first 5,000 copies earns you $0.836 in royalties. Thus, it will take 4,187 books to earn out your advance. For a book like you've described, that's not a realistic target.


    Two notes to go along with this:
    (1) No, as a matter of fact publishers are not changing their royalty percentages to keep author income constant. The 8/10/12 is pretty typical for a nonfiction trade paperback, whether on net or on list.
    (2) None of the above allows for returns. In reality, you'll need to sell about 2,900 copies at list, or the entire 5,000 first escalator at net, before you'll earn back the advance and overcome the reserve against returns.
    CEP
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    Any legal comments in this message are general commentary only, and not legal advice
    for your specific situation. You should not rely on such comments — or any other published
    comments, by me or anyone else — as anything other than general guidance.
    Unfortunately, no scam agents, vanity publishers, or other similar carrion-eaters were bent,
    folded, spindled, or mutilated in creating this post (not for want of motivation).
    Of course it's "fine print" — it's small and red.

  17. #17
    Empirical Storm Trooper MadScientistMatt's Avatar
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    Thanks, Jim, Jaws and Cathy. Seems like I was a bit mistaken about how "net" worked - I assumed that by "net price" they simply meant the price they sold it to the distributor to instead of the cover price. I didn't realize they could be trickier about it than that. Looks like I'm going to have to be very careful... or find an agent who can be very careful on my behalf.

  18. #18
    Ooo! Shiny new cover! Absolute Sage Cathy C's Avatar
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    overcome the reserve against returns.
    Thanks for reminding me, Jaws! I almost forgot this point. On a net contract, you want to be VERY careful to watch the paragraph in the contract that deals with "reserves against returns." Very often, this language makes the whole net situation even worse.

    For those of you beginners, a "reserve" is money that the publisher withholds from your royalties (once you've earned some) until all of the booksellers with the title have reported back to the publisher whether or not the book sold. If the book didn't sell, and the bookseller has left over copies then in the case of a hardback, and some trade paperback, the actual book is returned to the publisher. For mass paperback, it's detroyed by shredding at the bookseller's store and just the cover is returned (costs more in postage than the books are worth.) But since the bookstores only prepare these reports every 4-6 months, it's likely that the publisher won't hear back for up to nine months. If they report to you every six, they won't have any idea of what sold to the consumer. So, rather than trying to bleed a stone, they hold back money until they're certain it was sold.

    The paragraph you're looking for is called "Remainders," "Reports and Payments," or "Schedule of Payments" (depending on the contract.) Most often, the language will be very nebulous, like "the Publisher may deduct and withhold reserves against returns of copies in reasonable amounts for a reasonable time." Pfft! Trust me, YOUR version of "reasonable" will be quite different than the publisher's version.

    Your job is to DEFINE that time. For a new writer, you're probably looking at the publisher holding back two to three periods before sending (18-24 months from when it was published, because hardly any publisher reports any numbers in the first six month period). Secondary markets like Wal-Mart are notorious for reporting slow, so if that's a heavy market for your book, they might hold back four periods.

    Off-topic, I know. But very important info!
    Last edited by Cathy C; 06-30-2005 at 06:50 AM.
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  19. #19
    figuring it all out
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    Hello all. I've been lurking on the these forums for a few months, and I thought that maybe I could add two cents from the publisher's side in the interest of a well-rounded conversation.

    Quote Originally Posted by Cathy C
    What Jim said. The problem that leads to abuse is, "What are the expenses that will be subtracted?" Obviously, paper and ink and cover art and the editor's time, but what about the publisher's mortgage payment or food? (Yeah, it can happen if the publisher is a sole prop and s/he works out of his home...) The trouble with a lot of smaller publishers is that they're not willing to take a financial risk, so you might well get 15% or 30% of a buck or two per book, after the expenses are deducted.
    I've never understood paying on net to be anything other than paying royalties based on what the publishing company receives for the book. As many people have already mentioned, any book widely available in stores has been discounted heavily by the time it got there (sometimes up to 60%).

    If a book has a cover price of $20, and an author is getting royalties paid on cover price and the royalty rate is 10%, the author can expect to get $2 for each copy sold. Simple. But what's behind the numbers?

    Suppose the book has a per unit cost of $5, the publisher printed 3000 copies in hardcover. Total expense $15000 (printing, cover design, page layout, shipping from printer). If books were sold at cover price and the author was getting a 10% royalty rate (publisher taking home $18/book), the publisher would need a sell through of 833 copies to break even.

    BUT, the book isn't going to be sold at cover price (at least not the majority of them). So what happens to the numbers then?

    In the best (although not a great) case scenario, the publisher will ship books directly to the chains and independents (often having to pay for the shipping), extending a minimum of a 40% discount. So now, instead of getting $20 a book, the publisher is getting $12 (less the money spent to get the books to the store). On top of that, the author is getting his/her $2. Publisher is taking home $10/book (an $8 difference between the "retail price" and the "sold price"). The book also cost $5/book to make. At this point, it's going to take 1500 copies to break even (note: there isn't any profit at that point, so nobody is getting rich, there is still HIGH financial risk).

    Even if the whole print run sells out at 40% ($6000 for the author, $24,000 for the bookstores, $36,000 for the publishers) the publisher is only really taking home $21,000 (less the shipping of the books).

    I know, I know, $21,000 is good money. BUT, that's not all coming back. Because there were other expenses along the way.

    As an author, you want your book reviewed--you NEED your book reviewed, especially if you want to get large orders from the essential people like Ingram and Baker & Taylor. And even though you may get reviews from some websites and small journals, unfortunately, those reviews aren't the necessary ones. The important reviews are places like Library Journal, Publishers Weekly, Kirkus, Booklist, etc.

    To get those reviews a publisher needs to print review copies (ARCs). And if you want good coverage of the industry (trade magazines, well known authors, key buyers) you'll need to get a minimum of 500 ARCs. Though you could do them for cheap, no frills, etc. You get what you pay for. If your book doesn't stand out on a reviewer's pile, it probably isn't going to get reviewed (the important places are getting 100s of books a week and aren't reviewing a very big percentage of what they receive). Cost of those books? Conservatively $2000.

    Now that you've got 500 advance copies of your book, you're going to have to send them out to the reviewers along with press releases, author bios, etc. They're books, right? You can send them cheap by Media Mail. Not if you want somebody to take your book seriously. On top of that, if you send it Media Mail, you can't track the book, so you don't know if somebody got it, and since most of the big places don't really want phone calls, it's better to send a book that's trackable. Conservatively $4.50/book (x 500 books = $2250).

    Of course, reviews aren't the only thing needed for market awareness. There are ads in magazines, newspapers (again you get what you pay for here), there are trade shows to go to BEA, ALA, MBA, GLBA, etc. Conservatively, we'll put another $2500 in marketing.

    From $21,000 we've just subtracted another $6750, so now the publisher walked away with $14,250. Except, when they walked away, they remembered that they had to pay rent, phone, utilities, internet access. Oh, and the fact that somebody had to do the editing and all of the marketing work means that somebody needs to get paid for it. All of the work involved--editing, marketing, promotions is a three person job (Do some companies do it with one or two? Yes. Do they do a good job of it? That's left to debate).

    Maybe the company does six books a year. Maybe after expenses everybody involved walks away with $3,000/book. $18,000/year. Certainly nobody is getting rich.

    But there are other things to consider. If a company is using a distributor, be it Consortium, National Book Network, Midpoint or anybody else, then the discount extended goes from 40% to closer to 60% (paying on gross sales and net). We've also assumed that the author is going to sell all 3000 copies of the print run. That's no sure bet. Returns are an inevitable part of the publishing industry. And each time a book gets returned, there's a fee associated with that at the distributor. Instead of getting $12 a book (before paying a royalty), the publisher is getting $8/book. The author gets his/her $2. The publisher is walking away with $6/book (remember it cost $5 just to print it).

    If the publisher pays based on net price ($12), the author would receive $1.20 instead of $2. Or, the publisher takes away $6.80 instead of $6 ($1.80 over unit production cost).

    Not willing to take a financial risk? That's all it is. It's literary gambling.

    Quote Originally Posted by MadScientistMatt
    Thanks, Jim, Jaws and Cathy. Seems like I was a bit mistaken about how "net" worked - I assumed that by "net price" they simply meant the price they sold it to the distributor to instead of the cover price. I didn't realize they could be trickier about it than that.
    That's all it's ever meant to me. And that's the only way it's calculated above. There are no mortgage payments, trips to the Bahamas or anything like that calculated into paying royalties based on net.

    Quote Originally Posted by Cathy C
    Thanks for reminding me, Jaws! I almost forgot this point. On a net contract, you want to be VERY careful to watch the paragraph in the contract that deals with "reserves against returns." Very often, this language makes the whole net situation even worse.
    I'm not sure how it differs at all from a contract that pays on retail price. Reserves against returns are standard. Are they pleasant? No. But publishing is a business, and it doesn't do an author or a publisher any good if the publisher goes out of business because he/she doesn't account for returns.

    Quote Originally Posted by Cathy C
    Most often, the language will be very nebulous, like "the Publisher may deduct and withhold reserves against returns of copies in reasonable amounts for a reasonable time." Pfft! Trust me, YOUR version of "reasonable" will be quite different than the publisher's version.
    Again, it's just a reality of the industry. There's a whole lot of existing data on return rates and what can be expected. What an author "wants" doesn't mean that's what an author should expect. From the way you've worded it, it makes it sound like publishers are out to screw authors. I think that's a poor characterization.

    Sorry for the long introduction--it's something I'm passionate about. As I know many of you are. I look forward to further discussion on the matter.

    Ben
    Last edited by Bleak House Books; 07-11-2005 at 08:10 AM.

  20. #20
    Your Genial Uncle Absolute Sage James D. Macdonald's Avatar
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    Hi, Ben. A good, interesting post.

    I find a couple of things you said very interesting indeed:

    Quote Originally Posted by Bleak House Books
    Certainly nobody is getting rich.
    and

    From the way you've worded it, it makes it sound like publisher's are out to screw authors.
    The first is very, very true. The second ... while I'm certain that you, and most publishers, are as trustworthy as a troop of Eagle Scouts, authors have to assume that the second is true. It'll keep them out of a lot of trouble.

    I also object to publishers finding an extra eighty cents per book (in your example) by taking it out of the author's pocket. That's why I say that friends don't let friends sign contracts based on net.

    (Oh -- while honest folks don't take their mortgage payments out of 'net' -- we've run into some bottom feeders who do. And we've run into writers so desperate that they'll sign with those bottom feeders. For no advance and payment on net ... which never seems to exist.)

  21. #21
    Apex Predator Jaws's Avatar
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    There's another problem here: The price of the book is already set to recover those costs for the publisher. Or, at least, it's supposed to be set that way… allowing for the estimated discounts in projected revenue.

    Back when I was in-house, part of my job was going over the financials for accuracy. Let's just say that there was a reason that publisher didn't have to increase its average list prices for about six years after we discovered some "double recoveries" (that, if audited, would have been disallowed and created a substantial tax liability). Part of this comes from publishers insisting on pro rata shares per title of overhead, instead of per anticipated sale. But that's a long, boring journey itself.

    I have a great deal of difficulty believing most of the protestations of poverty from commercial publishers; for example, try deciphering Viacom's SEC documents and compare what they say about Simon & Schuster with what the publisher says about itself. Smaller publishers tend to be less deceptive in their statements, if only because there just aren't as many place to hide the cash (and because smaller publishers tend to take books closer to publication date, meaning they don't have as much advance money floating out there).

    Of course, all of this is just general observations. YMMV.
    CEP
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    Any legal comments in this message are general commentary only, and not legal advice
    for your specific situation. You should not rely on such comments — or any other published
    comments, by me or anyone else — as anything other than general guidance.
    Unfortunately, no scam agents, vanity publishers, or other similar carrion-eaters were bent,
    folded, spindled, or mutilated in creating this post (not for want of motivation).
    Of course it's "fine print" — it's small and red.

  22. #22
    Ooo! Shiny new cover! Absolute Sage Cathy C's Avatar
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    I agree that you brought up some interesting points, Ben. I originally didn't bring every single piece of pie into the picture, but I'll address a couple you brought up, because I disagree with your interpretation:


    As many people have already mentioned, any book widely available in stores has been discounted heavily by the time it got there (sometimes up to 60%).
    Books that are discounted over 50% are handled separately from those marketed to the booksellers and distributors under normal circumstances. These are considered "high discount" books and sales of those books should be at an increased royalty percentage to make up the difference what the publisher credited the store. So, on a book contract where a normal sale makes the author 8-10% royalty, a high discount sale will pay 10-12%. Likewise are "direct sales," sold from the publisher directly to the public without benefit of a store (such as Harlequin or Dorchester's web sales, which are often heavily discounted for members). The author still makes royalties equal to the normal percentage.

    To get those reviews a publisher needs to print review copies (ARCs). And if you want good coverage of the industry (trade magazines, well known authors, key buyers) you'll need to get a minimum of 500 ARCs.
    Well, first -- I don't get charged for ARCs that the publisher produces. That's an internal cost taken from their profit, not mine. However, they only do 25-100 to send out. I have printed my own, and can do it for about $10-12 per copy, in trade paperback size with tape binding and cover at a high quality small press. I don't print very many for that price. More often, I will send it out as a PDF or HTML copy to those publications that accept them. Reviews are extremely important, but the major publications only review less than 1% of the books received. Can your book be that one? Maybe. Heaven knows I've tried. Our last book got 37 reviews from a variety of sources, and people were amazed at that. I think 500 is extremely over-ambitious.

    BUT, the book isn't going to be sold at cover price (at least not the majority of them). So what happens to the numbers then?
    The publisher frankly doesn't care what the bookseller does with the book once it arrives at the store. They can sell it for a penny, but that doesn't mean that the publisher makes a smaller profit. I still get my royalty on the $6.99 list price regardless of what the store does with it. The bookseller doesn't report back to the publisher that "Well, I sold this for $2.99 per copy, so that's all I'm going to pay you." Doesn't work that way.

    I'm not sure how it differes at all from a contract that pays on retail price. Reserves against returns are standard. Are they pleasant? No. But publishing is a business, and it doesn't do an author or a publisher any good if the publisher goes out of business because he/she doesn't account for returns.
    I didn't say that the publisher shouldn't account for returns. I said that there should be an END date to get the money back. There truly are some large & mid-size publishers who have contracts written where the withheld funds are NEVER returned because there's no end date specified. I know they have to do it, but the author should make sure that someday they recover those monies. If the first edition sells out and the return reports are all received, then royalties should be returned to the author.

    But I agree with a lot of what you said. This IS a business, and authors need to treat it that way. That doesn't mean that they shouldn't get a fair shake, however.
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  23. #23
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    Quote Originally Posted by Cathy C
    I agree that you brought up some interesting points, Ben. I originally didn't bring every single piece of pie into the picture, but I'll address a couple you brought up, because I disagree with your interpretation:

    Books that are discounted over 50% are handled separately from those marketed to the booksellers and distributors under normal circumstances. These are considered "high discount" books and sales of those books should be at an increased royalty percentage to make up the difference what the publisher credited the store. So, on a book contract where a normal sale makes the author 8-10% royalty, a high discount sale will pay 10-12%. Likewise are "direct sales," sold from the publisher directly to the public without benefit of a store (such as Harlequin or Dorchester's web sales, which are often heavily discounted for members). The author still makes royalties equal to the normal percentage.
    I'm going to disagree with you. Books sold to people like Ingram/Baker & Taylor are often discounted over 50%. Those aren't lumped into any special category. It's just the way the chain works from publisher to end consumer. Books that are remaindered (and discounted 80-90%) are lumped into a high discount category.

    I'm not sure what you mean by increasing the royalty percentage to make up the difference the publisher credited the store. Are you saying the publisher should give the author more even though the publisher got much less?

    Quote Originally Posted by Cathy C
    Well, first -- I don't get charged for ARCs that the publisher produces. That's an internal cost taken from their profit, not mine.
    And neither do any of our authors. I never said they did. In laying out the costs for producing a book from start to finish my point was to illustrate that margins are already precariously thin, and that you can't simply say, "Well, the book sold for $20. The publisher gave me $2. The publisher made $18 in profit."

    Quote Originally Posted by Cathy C
    However, they only do 25-100 to send out. I have printed my own, and can do it for about $10-12 per copy, in trade paperback size with tape binding and cover at a high quality small press. I don't print very many for that price. More often, I will send it out as a PDF or HTML copy to those publications that accept them. Reviews are extremely important, but the major publications only review less than 1% of the books received. Can your book be that one? Maybe. Heaven knows I've tried. Our last book got 37 reviews from a variety of sources, and people were amazed at that. I think 500 is extremely over-ambitious.
    Well, that just doesn't match up with my experience. We were just at Book Expo America and our authors signed somewhere between 50-100 copies each of their ARCs during autographing sessions. On top of that, there are the major review places that we discussed--we receive reviews in Publishers Weekly, Library Journal, Kirkus, Booklist, etc. along with daily newspapers, other authors in the field. On top of that, we participate in the Baker and Taylor library marketing program (there goes another 350 books), and our distributor needs 250 copies to sell to their key accounts (the chains, the independents). NONE of those places, with the exception of other authors is interested in looking at a PDF or a printout of the book that isn't bound in book form.

    I'm not sure what "tape binding" is, I've never run across the term, but all of our ARCs are perfect bound, full color covers--in short they are quality paperbacks. Maybe that's why they get reviewed by those places that you're having a hard time getting a review by.

    I think also, if you did research from people who discuss the importance of reviews and review copies (Dan Poynter, John Kremer, Tom Woll, etc.) you'd see that they would encourage even more review copies than I laid out above. I stand by my conservative effort and I know that there is plenty of documentation from recognized names in the publishing industry that would agree. I also know that the larger houses do ARC runs that are larger than our finished book runs because review copies are *that* important to getting the word out.


    Quote Originally Posted by Cathy C
    The publisher frankly doesn't care what the bookseller does with the book once it arrives at the store. They can sell it for a penny, but that doesn't mean that the publisher makes a smaller profit.
    What?!??! I assure you we care quite a bit what they do with a book once it arrives in the store. The bookstore isn't going to sell it for a penny--they're going to return it. What sense does it make for a bookstore (who is essentially selling on consignment because of the return policy) to sell a book for a penny when they can return it to the distributor or the publisher for 40% or 50% of the cover price?

    Quote Originally Posted by Cathy C
    I still get my royalty on the $6.99 list price regardless of what the store does with it. The bookseller doesn't report back to the publisher that "Well, I sold this for $2.99 per copy, so that's all I'm going to pay you." Doesn't work that way.
    If you're getting money from that scenario, be very happy and don't expect it long term. That bookstore is going out of business quickly. And whoever is running it has absolutely no place being in business.

  24. #24
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    Quote Originally Posted by Jaws
    I have a great deal of difficulty believing most of the protestations of poverty from commercial publishers; for example, try deciphering Viacom's SEC documents and compare what they say about Simon & Schuster with what the publisher says about itself. Smaller publishers tend to be less deceptive in their statements, if only because there just aren't as many place to hide the cash (and because smaller publishers tend to take books closer to publication date, meaning they don't have as much advance money floating out there).

    Of course, all of this is just general observations. YMMV.
    Quote Originally Posted by James D. Macdonald
    The second ... while I'm certain that you, and most publishers, are as trustworthy as a troop of Eagle Scouts, authors have to assume that the second is true. It'll keep them out of a lot of trouble.

    I also object to publishers finding an extra eighty cents per book (in your example) by taking it out of the author's pocket. That's why I say that friends don't let friends sign contracts based on net.

    (Oh -- while honest folks don't take their mortgage payments out of 'net' -- we've run into some bottom feeders who do. And we've run into writers so desperate that they'll sign with those bottom feeders. For no advance and payment on net ... which never seems to exist.)
    It seems to me like there is a lot of cynicism going on here.

    I'll be the first to admit that there are plenty of predators in the publishing world, some worse than others. I'll also be the first person to say, "do your research." If an author gets taken by a scam artist, it's not like the author didn't have a chance to find out for his/herself that there are bad people in the world.

    Should we distrust every mechanic because there are shady ones? Should we assume that every restaurant we go to, people are in the kitchen spitting in our food? I think that's doing a helluva disservice to the people who are working day in and day out to do those jobs on the up and up.

    I don't have a problem with telling authors to beware. In fact I'm glad you all are providing the information, I think it's great. But I think it's horrible if you've got somebody's ear and you're telling them, "Yeah kid, all of these people at publishing houses are crooks. Be careful." It sets up a confronational attitude.

    The other frustrating thing is author's with no track record expecting to be treated like John Grisham.

    They aren't.

    And we aren't Random House (and neither are my peers). We're small houses trying to do right by our authors and not go broke doing it. If we wanted to get into scams, there are plenty of more lucrative markets I'm sure.

  25. #25
    Ooo! Shiny new cover! Absolute Sage Cathy C's Avatar
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    The intent is not to be cynical, I can assure you. Merely realistic about the realities of predators in the marketplace. We're not discussing large press or small press, but more the vanity and subsidy booksellers out there that try to convince authors that the book business is something it's not.


    I'm not sure what you mean by increasing the royalty percentage to make up the difference the publisher credited the store. Are you saying the publisher should give the author more even though the publisher got much less?
    What I'm saying is that if the publisher sells a high quantity of books for a 70% discount, at its choosing, rather than holding the inventory for regular sales, then the author should not be penalized for that decision. The author should get a higher percentage of a lower price, rather than the same percentage of the lower price, which would give the author significantly less money even though the publisher really broke even or made a small profit.

    And neither do any of our authors. I never said they did.
    I wasn't implying that your company did. But a lot of companies that call themselves publishers do. I've been using a very general tone in my posts that indicate the lowest common denominator and you keep trying to apply it to your own business practices. That's fine, but I wasn't making an accusation.

    What?!??! I assure you we care quite a bit what they do with a book once it arrives in the store.
    No, actually you really don't care so long as they pay the total bill. Yes, they probably WILL return it if it doesn't sell, but the point is that if they decided to have a promotion to give one away with every cup of coffee to open a new store, and happily paid your bill, you wouldn't care one iota how they worked their records to justify it. That was my only point.

    On top of that, we participate in the Baker and Taylor library marketing program (there goes another 350 books), and our distributor needs 250 copies to sell to their key accounts (the chains, the independents).
    Okay, whole different thing. I was discussing reviews which is a whole different thing. Certainly, the publisher puts out the promo packs and library program books. I was talking about specific reviewers. Yes, we have reviews by all of the major players. The point was that for a mass paperback title, it's unlikely that the publisher will invest in 500 ARCs for REVIEWS for each individual book in a line. Hardback? More than likely, and some trade paperback. If you're including all of the distributor copies, then 500 is more likely.

    Maybe that's why they get reviewed by those places that you're having a hard time getting a review by.
    No reason for snide comments. We're not having any problem getting reviews at these places. They're all posted on our website. Again, I was speaking in general terms. But the fact is that each issue of PW and Locus and others only includes a fraction of the titles released each month, and each publisher doesn't get but a handful of theirs reviewed.

    But we'll have to agree to disagree on a couple of topics. Glad your books are doing well. So are mine.
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    "An entertaining (and occasionally very dark) mystery." -- Locus

    "[Shapeshifter] fans are about to hit the jackpot as Clamp returns to re-energize this amazing series. Searching for layered plotlines and complex characters? Look no further, as Clamp truly delivers!" -- RT BookReviews

    "Cathy Clamp is a visionary author, creating new worlds that are both strong and vividly drawn. Adventure and excitement at its best." -- Yasmine Galenorn, New York Times Bestselling Author

    "A struggling community under attack, compelling action, characters struggling with dark secrets ... FORBIDDEN hit all my favorite notes, and I love the rich world of the Sazi!" - Rachel Caine, New York Times Bestselling Author

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