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Contract Clauses 11 and 12

I've actually been writing review column, which is why this has been a bit delayed. And pondering structure and things that work or don't in books that I've picked up and put down in general for this particular column, which tends to eat my brain.

But… this is probably the last of the interesting bits. The part that will follow this is indemnity, which sounds horrible to read. Because it is.

One warning: 11a. should be a rudimentary table. And. Well. I'm not an html whiz (have I mentioned general laziness?), so it isn't. The Author's share is the first number; the publisher's share is the second number.

Reports and Payments

11. Publisher shall pay to the Author fifty (50%) of the amount received by Publisher from any licenses granted in respect of Work, except as follows:

a. With respect to licenses granted under the provisions of paragraph 4:

Technically, I don't know why they bothered to list book club here, because, oddly enough, it's 50%, which would make the whole "except as" moot. Quibble, quibble.

On a more useful note: The original offer for the book was 7500 for all rights; the end offer is as you've seen it in the contract. The split of 75/25 wasn't the initial split, but -- and I'm almost embarrassed to say this -- I don't actually remember what the original splits were because they weren't relevant to me at the time; the years of bookstore work made it clear to me that they weren't going to be invoked, or the chance was so darned rare it was probably less than the chance of getting into a car accident every time you get into a car.

I'm fairly pragmatic; I remember everything that I'm dead certain is relevant, but I forget instantly almost anything else :/.

i. book club; 50/50
ii. hardcover license; 75/25
iii. reprint editions; 75/25
iv. special edition; 75/25
v. first serial
vi. second serial; 75/25
vii. special reproductions; 75/25

b-e struck; they refer to the rights that we withheld, and there's no point in going into them again. Unless someone really wants to see them, in which case I'll type them up.

f. If any license hereunder includes material of others, the amount payable to such others in respect of permissions granted by them shall be deductible from the sums payable to the Author in respect of such license.

g. Publisher shall have the right to license Random House, Inc., its subsidiaries and other divisions, to exercise the rights granted herein, except mass market paperback rights in the United States, provided the royalty payable to Publisher shall not be lower than ordinarily paid to Publisher by others for the same rights. Author shall be entitled to the applicable share of amounts received by Publisher from such licenses in accordance with paragraph 11 (a) above.

h. Publisher may license others free of charge to publish the Work in Braille or other forms for the physically handicapped.

This is a legal necessity, afaik. It's the loophole by which bookshare.org is publishing ebooks without paying anyone for them -- they're for the blind; they can be read out loud by devices that bookshare.org's parent company sells, and you have access to any titles you want for a flat monthly fee, which "covers their costs" because of course they can't do this for profit. Only people who are actually blind can get this, of course, although rumour has it that an enterprising legal person signed his dog up for the program. So much for background checks.

i. Publisher may publish and permit others to publish for publicity purposes without charge such selections from the Work as it deems proper to benefit the sales thereof up to 750 words without compensation to the Author.

12. a. Commencing after publication Publisher shall render semi-annual accountings in accordance with its regular practices on or before February 1st for the six-month accounting period ending in the preceding September, and on or before August 1st for the six-month accounting period ending in the preceding March. Each statement rendered will be accompanied by payment of the amount shown to be due thereon, after allowance of a reasonable reserve for returns and after recoupment of all sums payable as advances hereunder. Should the Author receive an overpayment of royalties it shall be charged against sums thereafter due the Author, or any other under agreement with the Author.

Every publisher does six month statements. These would be your royalty statements. They vary by publisher. Which is to say: Penguin Putnam now lists the shipped quantities, the actual number held in reserve against returns, etc., but some still don't. Some royalty statements will list what the "net" is, with no mention of how many books were shipped, or the part of that number held back for "reasonable reserve" against returns. So… for many statements, you'll get something like 15,678, at 6%. It won't tell you anything else of use, although it does break these down into royalty categories -- Canadian sales in the case of this contract being 3%, for instance.

The length that the reserve is held also depends on the publisher. Some will hold it for up to two years. Some will hold it for two full six month accounting periods; there isn't really a way -- as far as I can tell -- to change this.

At any rate, the "account" for your book will start with the full amount of the advance as a negative number, and the sales for that period will be added to that number, leaving either a less negative number or -- if you're wildly successful or your advance was almost nothing, a positive number. Positive numbers in this case means that they have to pay you whatever that positive balance is.

b. Upon written request the Author may, not more than once each year, during usual business hours at the Author's expense, cause the books and records of Publisher concerning sales and licenses of the Work to be examined by a certified public accountant at the place where such records are regularly maintained and may make extracts and photocopies of relevant portions thereof. Statements rendered hereunder shall be deemed final and binding upon the Author unless Publisher is given written notice of the Author's objections thereto within one year after the date rendered specifically setting for the grounds of such objections.

If you think you're being ripped off by your publisher, or if you think that your sales aren't listed correctly, etc., etc., this just gives you permission to audit the publisher's books -- at your own expense, unless something is found. SFWA was doing a random audit for a while (I don't know if they still do), but found little wrong. There are cases in which there were aggregious errors at major publishers, but my assumption is that this is exceptional, rather than the rule.

c. In the event Publisher grants a license and the Author is entitled to a share of the proceeds of such license, the Author shall be entitled to payment of the Author's share thereof, less sums payable hereunder as advances which have not yet been recouped, within thirty (30) days after the receipt thereof by Publisher, provided Author shall request such payment in writing after the license has been granted by the Publisher *The Publisher shall endeavor to notify the Author of all such licenses granted; however, failure to do so shall not constitute a breach of this Agreement.*

This means that if the publisher sells, for example, book club rights and you've already earned out your advance, the publisher is required to pay you your share before your accounting period has finished. The notification part was added, but as there's no remedies or penalities for failure in any way, I consider this to be mostly cosmetic.


( 3 comments — Leave a comment )
Sep. 20th, 2004 01:28 pm (UTC)
Regarding HTML and tables... if you're typing in HTML in raw text, tables are somewhat annoying and time consuming. Thanks for providing more contract info.
Sep. 20th, 2004 04:26 pm (UTC)
Funny, I've never had much trouble with tables and prefer them to layers or any other weird coding people are coming up with these days to avoid them. I've been able to code up to a dozen or more nested tables by hand.

Course, now days i make life even easier and use Dreamweaver. It's expensive but damn is it worth it!
Sep. 20th, 2004 06:53 pm (UTC)
Side note (Sorry, Michelle, to digress from the discussion at hand): I usually get screwed by Dreamweaver--it gives me waaaay to much redundant markup. But if you want a kickass editor, try Ultra Edit. It's got this column editing mode which makes table editing a snap....because you can change all your table row tags at the same time.
( 3 comments — Leave a comment )