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By Mike Gunderloy
Thursday, August 28, 2003
I'm going to switch gears a bit and talk about books here, beginning with one of the trickiest topics: book contracts. I'll leave for a later installment the whole question of why you might want to write a computer book.
Before I start, let me make one thing clear: I am neither a lawyer nor an agent. I have worked with agents in the past, and while some people swear by them, I never did anything other than swear at them. These days I have signed enough book contracts that I do my own contract reviews. You should think long and hard about whether you want to bring in professional help the first time you're presented with a book contract. Remember, that contract was written by someone at the publisher to protect their rights, not yours. If you do use an agent or lawyer, try to find one that has experience with the computer book industry, which has some practices that are different from those in the regular mass-market book industry.
Contracts vary widely by publisher, but there are some things you should expect to find:
- A definition of the work: At the very least, this should have the subject, proposed title, and rough page count, as well as indicating whether you're providing samples or other ancillary material. You need to know what you're producing before you can tell whether the deal is any good.
- A formal grant of rights. This will look something like this:
You assign and grant exclusively to us all worldwide rights in and copyright to the Work, its parts, and all versions and revisions of the Work, for the full term of copyright and all renewals of copyright, including the right to print, publish, distribute, and sell the Work, in all countries and including all of the rights set forth in paragraphs 6 and 13. You also grant to us the exclusive right to license or permit others to do the same. You agree that the registration and copyright notice for the Work shall be in our name or another name we select. At our request, you will sign and provide any documents confirming this grant that may be required for filing with the Copyright Office.
- A delivery and payment schedule. Sometimes you'll get a payment in advance of any work, but more often these days payments are tied to milestones (25%, 50%, 75%, and 100% manuscript complete, for example). Read carefully to see what happens if you miss the deadlines, and don't agree to unrealistic deadlines.
- A royalty schedule. This is a listing of what you get paid for each copy sold. More on this in the next article.
- Language covering when and how royalties are paid, and what rights you have to audit the accounting.
- A paragraph giving you some number of free copies (usually ten), and the right to buy additional copies at some discount.
- A long chunk of legalese with your guarantees to the publisher. Mostly you'll be guaranteeing that the work is original, and that you'll pay all the costs if they get sued because you were lying about that.
- A non-compete clause. This will be something like "Starting from the date we begin discussion leading to this Agreement and for as long as we are publishing and distributing the Work, you will not create or contribute to the creation of a work that may harm the sales or licenses of the Work."
- A "first refusal" clause: "You agree to offer to us a proposal for your next work before submitting it to any other publisher. "
- A clause giving you back the rights if the publisher decides to stop distributing the book or goes bankrupt.
Much of this is negotiable. Realistically, you don't have a lot of clout on your first book, but it doesn't hurt to ask. I have had to negotiate more than once. Things in particular I complained about and won:
- One contract bought all rights everywhere in the universe for all time, and then only paid royalties on the first US printing. I don't mind selling all rights, but only if they're actually paying for them. Generally, the publisher wants to buy everything. You might want to try to insert a clause that allows you to reuse material in conference talks and magazine articles provided you credit the book as the original source; most publishers see this as good PR.
- One contract specified that the author paid for the index to be produced (which is actually fairly standard), but didn't put a cap on the amount to be paid. I was able to negotiate a reasonable figure there.
- I personally won't sign a contract with a first refusal clause, unless it's limited to "you agree to offer us a proposal for your next work on the subject of this work". Most publishers appear happy to drop this clause.
- You can sometimes get a larger advance by negotiating a lower royalty rate. This doesn't always work, though.
- I've seen non-compete clauses that would effectively prohibit publishing anything about computers or programming. I didn't sign them.
If you're thinking about writing for any computer publisher, I recommend that you surf on over to So You Want to Write a Book? at the O'Reilly Web site. Chapter 3 in particular goes through their stock contract a paragraph at a time, with explanations of how and why they do things (but remember, your publisher may do things differently, so don't make assumptions based on an O'Reilly contract that you didn't sign).
Mike Gunderloy is the lead
developer for Larkware and author of numerous books and articles on programming
topics.
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