There have been several new elements, in recent years, entering into
the contract between author and publisher, which have made it a more
complicated business-partnership than in the past. It was not so long
ago, for instance, that neither author nor publisher would spend much
time discussing the clause relating to dramatization; for few novels
were then dramatized, and the chance of having this clause become of
importance was remote. To-day, however, nearly every author considers
his work teeming with potential dramatic probabilities, and the fact
that so many plays have been produced, based upon successful novels,
naturally leads the publisher to wish, if possible, a share in this
supplementary reward. In considering this clause, therefore, the author
must take into account the part which his publisher is likely to play
in advancing the interests of both along these lines.
The present stock contract of most publishing houses assigns the
dramatic rights to the publisher, but provides that the author shall
share in such profits as may accrue from the dramatization.[3] Just
where the division shall occur is a subject for discussion. It seems
a fair contention on the publisher's part that any interest in
dramatization comes from the popularity which a novel attains, and that
this attainment results from his energy and ability in placing the book
before the public as much as from the merit of the story itself. If the
author feels this position to be warranted, he will undoubtedly accept
an equal division; if not, he will insist that the clause be stricken
out.
The moving-picture rights[4] add a still more recent factor to the
consideration of the contract. The development of the moving-picture
business has been so rapid that the demand found both publishers and
authors unprepared for the unexpected, but no less welcome market for
what must be considered a by-product. And the possibilities of its
further extension are so unlimited that the returns from this single
source alone may easily prove of greater value than the original right
to publish the novel. Here, then, is a point which could never have
appeared in the old-time contract, yet which now warrants the most
careful consideration.
The serial rights[4] have long formed a definite clause to be included
or omitted. Often the publisher's contract is not made until after the
serial publication of the story has been arranged, in which case it is
naturally an entirely independent business transaction. Frequently,
however, the publisher places the story serially for the author,
arranging his own date of publication to conform. Obviously, under
these conditions, the publisher is entitled to share in the returns
from the serialization.
The "second serial rights" represent still another phase. It is the
custom for publishers to sell these rights to newspapers, and to
receive their pay not in cash but in advertising space, since by so
doing they receive more than they could get for a fair equivalent
in cash. This second serialization does not ordinarily take place
until a story has had its sale, and its appearance in this cheaper
form is not supposed to affect the author's royalties one way or the
other. The advertising space thus secured is used not to advertise
the story so serialized, but other, later books issued by the same
house. The publisher usually credits the author's royalty account with
an arbitrary sum, equivalent in his estimation to the value of the
transaction. Few contracts contain any clause covering this point. The
publisher argues that the author, in all probability, could not have
disposed of these rights at any price, and that whatever amount he
receives is clear gain.
The contracts of various publishing-houses differ in their clauses
covering "author's alterations," which include all changes made from
the original manuscript as delivered to the printer. Some publishers
allow a flat sum of $25[5]; others allow 10% of the printer's bill for
composition and electrotyping. The average author cannot understand
the expense of making changes after the manuscript has been put in
type, and this point is one of the most disagreeable features which
creep into the relations between author and publisher. It is inevitable
that certain changes should be required when the author sees his work
reduced to the rigidity of type, but the publisher should certainly
not be expected to pay the penalty for elaborate changes which are the
results of the author's carelessness or change of heart.[6]
The rate of royalty depends upon the value of the author's name to the
publisher's list, but the normal rate is 10% of the retail price.[7]
Some publishers demand that the first thousand copies shall be exempt
from royalty, but this is looked upon to a certain extent as taking
advantage of the author's lack of reputation. The best houses, if they
are willing to publish a book at all, are willing to take the whole
risk, allowing the author returns on every copy sold.
On fiction, the rate goes up from 10% to 33⅓%, but at this latter rate
the publisher is giving the author more than he can afford, hoping to
make up for his plunge by the impetus which this fortunate author's
name will give to the balance of the list. Broadly speaking, 20% is the
maximum a publisher can afford to pay, and then only on a book which
is practically certain to win a place among the best sellers. A method
which seems fair to all concerned is what is called the "progressive
royalty." This gives the author say 10% on the first ten thousand
copies, 15% upon the next ten thousand, and 20% upon all copies sold
over twenty thousand. An arrangement such as this gives the publisher
an opportunity to charge off all his initial expenses of manufacture,
and to be liberal in his advertising appropriations in extending and
continuing the sale of the book.
The royalty upon common-and high-school textbooks is normally 7½% to
10%, but as the publisher frequently makes special prices to secure
large adoptions, the rate may be less. Special clauses are usually
inserted into contracts made with authors of books of this nature, to
cover these contingencies. College textbooks command 10% to 15%.
The clause relating to English rights[8] is unimportant to the average
American author, for American stories do not as a rule sell well in
England. As a leading English publisher once jocosely told the writer:
"The average American novel deals either with society or sport, and
we in England don't think you know much about either in America." If,
however, the author believes his book has a chance, in all probability
the publisher will strike out the clause, and give him a free hand to
make his arrangements direct. The question of Colonial rights should
not be overlooked, as these sometimes prove to be of greater value
than the English rights themselves.
The "option" clause,[9] giving the publisher the refusal of subsequent
books, is one which every publisher is glad to have, as it binds him
to nothing and may prove of value if the earlier story of the author
is successful. On general principles, it is the part of wisdom, in any
contract, to make no agreement which does not bind both parties. An
author should consider the probable advantage to himself in having the
publisher feel sufficiently certain of retaining him upon his list to
warrant the expenditure of larger sums, in advertising and in pushing
the book in hand, than would be safe if the author were free to take
his next manuscript to another publisher.
The present writer is a strong believer in the advantage to the author
of remaining on a single publisher's list, provided the publisher has
shown himself to be enterprising, and inclined to advance the author's
interests simultaneously with his own. There are unquestionably many
instances where an author can secure larger royalties by "shopping
around," but in the long run better results will come from a
consideration of the bonds between author and publisher in the light
of a business partnership, not to be broken while relations remain
amicable.
At present there is no uniform book contract used by all publishers.
The blank contract form here given is that used by a reputable
publishing-house. As a matter of fact, no present contract of any
publisher is wholly satisfactory, and it is interesting to note that
the subject of contract is one which the leading houses are taking up
seriously with a view to standardization and improvement.
=Contract form:=
MEMORANDUM OF AGREEMENT made this ... day of ..., 19..., between ...,
party of the first part (hereinafter called the Author), and ... of
..., party of the second part (hereinafter called the Publishers),
WITNESSETH: That
WHEREAS the said ... is the author and proprietor of a work entitled
... (hereinafter called "the Work"), and desires that the same be
published and put on the market by the said ...,
NOW, THEREFORE, in consideration of the premises and of One Dollar to
each in hand paid by other, the receipt whereof is hereby acknowledged,
the parties hereto do covenant and agree as follows:--
FIRST: The Author hereby bargains, sells, grants, conveys, transfers
and sets over unto the said ... the sole and exclusive[10] right
and privilege to print, publish and put on the market the said
Work, during the whole term of its copyright and all the renewals
thereof in the United States of America and in the Dominion of
Canada and elsewhere[10]; the Publishers shall also have all rights
of translation, abridgment, dramatization, moving-picture rights,
selection, and other rights of, in, or to said Work in the United
States of America and in the Dominion of Canada and elsewhere.[11]