Re: In the interest of educating writers
Paragraph #9 of the PA contract bothers me. Like the rest of their contract, it's self-serving and seriously nonstandard. I believe it's also deliberately constructed to be misleading. It's not the only paragraph in the PA contract that's constructed that way, but #9 annoys me right now, and I might as well start there as anywhere. Here's the whole thing:
9. The Publisher agrees to distribute, at his discretion, for purposes of publicity and/or review, promotional information pertaining to the said literary work, to publications throughout the United States and/or the Dominion of Canada, or elsewhere. Distribution of this promotional material shall be at the Publisher’s own cost and expense and to media outlets of the Publisher’s own choice. The Author agrees that excerpts of the said literary work may be included in this promotional information, and agrees, furthermore, that the Publisher may, at the Publisher’s election and discretion, cause to promote the said literary work, as designated, in any electronic format, and that the Publisher may sell or cause to sell copies of the said literary work in any electronic format. The Publisher agrees to pay to the Author a return as specified in Provision # 3 of this agreement of the sales price of every copy in any electronic format that may be sold and for which the Publisher shall receive payment in money.
One of the basic conventions of English prose is that paragraphs group similar material. If two subjects appear in the same paragraph, they're assumed to be related. But paragraph #9 slides from one subject, the publisher promoting the book, to a completely different subject, a grant of rights; and it does so in a deliberately obscure way, using similar-sounding phrasing to express an unrelated issue.
You want to talk about standard vs. nonstandard contracts? In a standard contract, grants of rights are up front, under a heading that says something like "GRANT" or "GRANT OF RIGHTS". Other subrights, licenses, etc., are in paragraphs with similarly appropriate headings. They are
not tucked into the latter portion of a paragraph about book promotion.
Let's get specific. I'm going to be mixing criticisms of the contractual language with criticisms of its structure, but I trust you'll be able to follow.
9. The Publisher agrees to distribute, at his discretion, for purposes of publicity and/or review, promotional information pertaining to the said literary work, to publications throughout the United States and/or the Dominion of Canada, or elsewhere. Distribution of this promotional material shall be at the Publisher’s own cost and expense and to media outlets of the Publisher’s own choice.
It requires the optimism of a first-time author to see this as a promise to effectually promote the book. It doesn't say they'll promote the book. It says they can promote the book if they want to. Now, if this section said "the publisher will promote the book," the authors might have something. They don't. This is nothing. Consider: If you've written a nonfiction book about a specialized subject, and there's one inarguably obvious venue in which your book should be promoted -- say, the one magazine that's universally read by absolutely everyone who's interested in your subject -- then under this contract, you have no grounds for complaint if PA fails to so much as send that magazine a press release.
Distributing promotional material is never a sure bet. It may work, it may not work, and you may or may not be able to tell whether it worked. That's not PA's style. They don't take chances on anything or anybody, and they've consistently been averse to making
any outlay for which they aren't directly compensated. They won't even lower a cover price by a couple of bucks to hit an obvious price point. As far as anyone knows, they don't even have sales & marketing, ad/promo, or publicity staff.
Many publishing contracts -- the real kind -- don't even mention promotion. The contracts just assume that the publisher has a strong incentive to market your book.
Onward.
The Author agrees that excerpts of the said literary work may be included in this promotional information,
That doesn't sound terribly unreasonable on the face of it, right? You're thinking
Hey, cool, they're gonna promote my book, in which context
They want to be able to quote from my book when they promote it seems like a logical albeit minor housekeeping detail.
and agrees, furthermore, that the Publisher may, at the Publisher’s election and discretion, cause to promote the said literary work, as designated, in any electronic format,
There's some broken language here. The Publisher may cause who or what to promote the book? Possibly they meant "cause to be promoted", and later on in the same sentence meant "cause to be sold", in which case they're just jarring and embarrassing grammatical errors. Meanwhile, what's with that "as designated"? This is a single-book contract. "The literary work" or "said literary work" would suffice, though it'd still be clunky nonstandard language. Usually you just say "(hereinafter called the Work)" in the initial grant of rights, and thereafter refer to it as "the Work".
The more important question is why permission to promote the book in electronic format is specified at all. PA's already been granted permission to promote the book (if they feel like it). If no formats are specified, all formats may be assumed. So why this phrase? I'll argue that its sole purpose in the contract is to act as the first half of a deliberately misleading parallel construction:
The Author agrees that ... the Publisher may, at the Publisher’s election and discretion, cause to promote the said literary work, as designated, in any electronic format, and that the Publisher may sell or cause to sell copies of the said literary work in any electronic format.
That's a non-exclusive grant of all electronic rights.
Do you see what happened? PublishAmerica's contract slides from "permission to promote" to "permission to quote excerpts for purposes of promotion" to "permission to promote in any electronic format" to "permission to sell the work in any electronic format". It's artful, it's dishonest as hell, and there's no way it can be an accident of clumsy language.
Might as well finish up with the rest of the paragraph, where there's clumsy language in plenty:
The Publisher agrees to pay to the Author a return
Perhaps they meant "royalty". Returns are shipped copies the bookstores send back, either as whole copies or as stripped covers.
as specified in Provision # 3 of this agreement
Ten words in a row that contain no errors or problems!
Should be "on the cover price", or "on the selling price", or "on the full retail price". A "return of the sales price" is what Crazy Eddie announces on his TV commercials.
of every copy in any electronic format that may be sold
Thus confirming that what happened up there was a grant of all electronic publication rights.
and for which the Publisher shall receive payment in money.
That's weaselly. If PublishAmerica receives payment in any form whatsoever, the author should be entitled to his or her share.
A full critique of the PA contract would take a long time. I've been thinking about dissecting the part about buying back your production materials when your book is reverted. It's inexcusable.
