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How to Negotiate with Publishers — Things to Watch Out For

Things to watch out for

Copyright Transfer Agreements or Licenses are written to the publisher's benefit, not to the author's benefit. There are several classic provisions that publishers include in contracts which authors should watch for and moderate or remove if possible. These include:

  • Surrender of patent and other intellectual property rights
  • Competing works (especially for books or chapters)
  • Governing law, jurisdiction, binding arbitration
  • Merger (superseding prior agreements)
  • Warranties and indemnification

Surrender of patent and other intellectual property rights

No publisher requires your patent or trademark rights to publish your work. Patents and other intellectual property are distinct from copyright. If patents are a factor in your research, a statement reserving those rights should be in your publication agreement:

Authors shall retain the exclusive, royalty-free right to any patentable subject matter that may be contained in the Publication.

Governing law and jurisdiction

Some contracts specify a geographical judisdiction for any legal disputes to be determined under, which is generally beneficial to the publisher. Laws and penalties can vary widely between states. Governing law defines which state's laws apply to the contract. Jurisdiction determines which courts will resolve legal disputes.

For UConn authors, claiming Connecticut jurisdiction and governing law is preferable, as local legal authorities can preside over disputes, and authors will not need to take on the added costs and legal uncertainty of having to litigate a case under UK law or in California courts.

Authors should also strike clauses specifying that disputes will be resolved through binding arbitration. The arbitration process can cost significantly more than filing a court case, decisions cannot be appealed, and litigants have no automatic right to discovery. Strike "binding" from any reference to arbitration in your contract. Always reserve the right to go to court.

Sample clause for you to incorporate into your publication agreement:

This Agreement shall be governed by the laws of the State of Connecticut without regard to its principles of conflict of laws. The parties hereby submit to the exclusive jurisdiction of the state and federal courts sitting in the State of Connecticut.

Merger

In a legal contract, "merger" refers to a signed agreement superseding any prior agreements. This means that if the publisher made you a promise verbally or via email, but the promise isn't explicitly written into the contract, it is not binding on the publisher.

Be cautious with merger clauses. If there is a merger clause in your publication agreement, make sure you get any promises written into your contract before signing.

Sample merger clause:

This agreement contains the entire understanding among the parties, superseding any prior understandings or agreements.

Competing works

Sometimes publishers will put a non-compete clause into a contract to to limit an author's ability to write other works on a topic which might potentially compete for audience and money with the contracted work. Non-compete clauses are common with book publishing. Authors should strike or weaken noncompete clauses (e.g., limit the noncompetition to a 1-year period).

Here is an acceptable non-compete clause:

Author agrees that during this first year of this Agreement, Author will not, without the written permission of the Publisher, publish or authorize to be published any full-length work specifically intended to supplant the Work in the marketplace, and which would clearly and directly harm the sale of the Work. (Courtesy of the Authors Guild)

Warranties and indemnification

Warranties are promises that the author makes to the publisher. Common warranties include a declaration that the work is original and that permission has been received for any third-party materials included in the work. These are reasonable expectations. But some publishers demand blanket warranties that put authors at risk. For example, publishers might require warranties that the manuscript does not violate any laws or any rights of any third party in any state or anywhere in the world, which no author can guarantee.

Indemnification means that the author agrees to pay the publisher ("indemnify") for any losses incurred due to a false warranty. Some publication agreements demand indemnification whenever a lawsuit is filed, even if the claim later fails in court. With such sweeping clauses, publishers are attempting to pass on the risk to authors.

Authors can delete or revise overly broad warranties, cap any indemnities for which they are liable, and limit indemnification to situations where courts have ruled against the publisher, avoiding unlimited personal liability for frivolous or unfounded lawsuits.

  • Ensure your warranties are reasonable in your own context. For example, you should not have to warrant that the book contains no obscene material if your topic is sexuality.
  • Use language such as "to the best of the author's knowledge" to limit claims to only factors about which the author should have known.
  • Limit both warranty and indemnity to exclude any editorial changes made by the publisher. Authors should not be liable for publishers' mistakes.
  • Require that any settlement be subject to the author's reasonable consent, to give the author a voice in the outcome.
  • Limit any liability payment to an actual (rather than alleged) breach of warranty.
  • Cap your liability to a specific dollar amount, such as your advance or a percentage of royalties.

Don't accept boilerplate warranty and indemnification language in a contract without careful scrutiny.