Industry & Advocacy News
February 24, 2016
A publishing agreement is a contract to publish a book and pay the author in consideration for the author’s delivery of the manuscript as agreed. Many standard acceptance clauses in publishing contracts allow the publisher to reject a manuscript based on nothing more than a whim, which undermines the very essence of the contract—that it is an agreement to publish a work, provided the work is written and delivered as agreed. Worse, many standard acceptance clauses refuse to let the author publish elsewhere until all the money advanced has been refunded. These one-sided acceptance clauses are another example of how standard publishing contracts can put authors on unequal footing from day one.
Acceptance clauses are an essential part of any publishing agreement entered into based on a proposal or partial manuscript. The publisher needs assurance that it will get the book it is contracting for. But, in recent years, the acceptance provisions of many such publishing agreements have become increasingly subjective and one-sided. Every publisher will tell you that they have been burned by one or more author who has handed in a manuscript that doesn’t live up to the promise of the proposal it was based on. We understand that publishers need to protect themselves against the bad apples. But they should not use those rare examples to force unfair acceptance terms on everyone else—the vast majority of whom write the books they agreed to write.
These types of unfair acceptance clauses give the publisher too much subjective discretion in deciding whether to accept the manuscript. By allowing a publisher to determine whether a manuscript is acceptable “in the publisher’s sole judgment,” they allow the publisher to reject the manuscript for any reason—or no reason at all. And, once rejected, the publisher can invoke related clauses to demand that the author pay back any part of the advance that she has already received, generally before publishing elsewhere.
The cumulative effect of these provisions is that the publisher can use them to turn the agreement to publish into an unpaid-for option. Here is how an option works: the author is paid to not sell the work to anyone else for a certain period of time. Options are standard in certain other industries, such as to purchase scripts or book rights for films, where the actual production of the film is dependent on a number of pieces coming together. The option payment is consideration only for obtaining the exclusive right to buy the script for the agreed period of time, not for the right to actually use the work, and the option payment is not refundable. This is fair; the option payment recognizes that there are lost opportunity costs if the movie is not produced.
In practice, a publishing agreement that allows a publisher to reject a manuscript in its “sole judgment” even though the manuscript was delivered on time and conforms to the proposal and other requirements in the contract (e.g., number of pages or words) makes it possible for management to reject the book for really any reason—a change in market conditions, another house’s publication of a competing title, an executive second-guessing an editor’s taste. And then the publisher can force the author to pay back the portion of the advance that has been paid out (most standard contracts provide for full repayment before publishing elsewhere, although some contracts allow authors a window of time to repay any sums advanced with the “first proceeds” of money earned if and when the book is published elsewhere). This means that the publisher has, in essence, taken an option, but without paying for the lost opportunities to the author.
We understand that publishers need to protect themselves against the rare instances of authors not holding up their end of the bargain, but there are other ways to accomplish that than forcing subjective, open-ended acceptance provisions on all authors. For example, an objective standard of acceptability would help, such as making acceptance subject to the manuscript meeting agreed-upon standards. Even a provision that makes acceptance subject to the publisher’s “reasonable judgment” “in accordance with industry standards,” is preferable to allowing the publisher’s “sole” judgment to determine acceptance.
More importantly, an author should have the opportunity to revise the manuscript before it’s rejected outright. These kinds of provisions, indeed, are often found in agented contracts. If the publisher is not satisfied with the manuscript, the agreement stipulates that the publisher must provide a written list of editorial (as opposed to commercial) reasons for not accepting the manuscript as is. The author is then given a reasonable amount of time to edit the book to address those comments. All authors should be given a fair opportunity to edit the manuscript to address the publisher’s concerns. It’s consistent with the common objectives of authors and publishers alike: bringing readers the best books possible.
 Alternatively, if a publisher is actually looking for an option—if the editors aren’t sure whether they want to publish the book once it’s written—they should be honest and upfront about it. In that case, the agreement should be structured as a true option agreement. While we don’t recommend moving to the option arrangement for most books, in certain cases, the option structure would be preferable to one-sided and arbitrary acceptance clauses that allow the publisher to get out of the contract for whatever reason and then demand its money back.
Read more about our Fair Contract Initiative.
Photo credit: Writers Block I by Drew Coffman licensed under CC 2.0