MAKING THE CONTRACT

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]

The Author's Desk Book Being a Reference Volume upon Questions of the Relations of the Author to the Publisher, Copyright, The Relation of the Contributor to the Magazine, Mechanics of the Book, Arrangement of the Book, Making of the Index, Etc. · 第 21 / 97 题