1. Bryan Gervais
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    Bryan Gervais New Member

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    Traditional Received an offer, but have questions

    Discussion in 'Publishing' started by Bryan Gervais, Mar 3, 2014.

    Hello all,

    An international publishing company, to which my wife (1st time author) has submitted a partial MS to, has replied with an email offer. They state they have a policy of not offering an advance to 1st time authors, but believe it should not be a problem for her since she has the MS nearly completed at this point. Also in the contract would be a 10% net royalty payable 2x per year.

    My wife is also a photographer and stylist and is creating the layout with Adobe InDesign etc.., meaning she funded the creation of the book by herself, not requiring any external help aside from the publishing company. I should mention the book is about interior decorating, kitchens, baking, DIYs, flea Markets, and some nice stories.

    My question as a newcomer, is this a fair offer?
    Also, any further advice would be welcome.

    Thank you and all the best...
     
  2. TWErvin2
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    TWErvin2 Contributing Member Contributor

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    I can only speak to contracts for fiction, not nonfiction, and only that with experience based on several novel-length contracts and about two dozen short story contracts.

    It is fairly common to get an offer based on a partial, several chapters and a proposal for the rest of the book, especially if the author has an expertise and/or a publishing track record.

    My concern based upon what you indicated, is the 10% net. That isn't considered good. 10% of the retail cover price would be. 30 to 50% net is far more common and equitable to the author.

    Look at it this way. If the book sells for $20.oo retail, but costs 8 dollars to print (considering pictures), that means 12 dollars would be the base of the net. Then, booksellers normally take 40%. That's another 8 dollars. Now you're down to 4 dollars to base off of net. So, if nothing else is included in deducting from the net, your wife would earn 40 cents for each book sold, or a net royalty of 2%. Now, I just made up numbers, mainly with the print cost. Offset printing is fairly inexpensive. But color pictures and the size/glossy pages, would add to the cost. POD would be very expensive.

    But you're just looking at what the contract says your wife will be paid and when. There is a lot more to a contract. What rights are being offered to the publisher, what is the length of the contract. What about subsequent works? Does the publisher have right of first refusal. What about when the book will be published? Is there a date set? How and when do the rights revert to the author? There is much much more to consider.

    If you and your wife have little to no experience in this area of contract law, you really should strongly consider consulting with a literary attorney, one who specializes in this area of the law, especially if it's an international company. What I am saying/asking is very basic and should not be considered informed advice. I don't have the legal training and experience, nor have I even see the contract in question to satisfactorily begin to address concerns with the contract).

    If your wife is doing all of the layout and design...what will this publisher do? What part to they play to earn 90% of the profits, as your wife is only going to earn 10% of the net?

    Also note, that contracts are negotiable. What the publisher sends is not necessarily what the final contract should look like.

    Finally, what is the reputation of this publisher? Do you see their books on local bookstores and chain bookstores? Are they online and how do their books sell (Amazon/B&N ranking for a snapshot). What does the final product of this publisher look like? There are online places where you can check on this publisher's reputation.

    These are just a few questions for you to consider.
     
    Last edited: Mar 3, 2014
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  3. shadowwalker
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    shadowwalker Contributing Member Contributor

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    ^ This. All of this.
     
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  4. Bryan Gervais
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    Bryan Gervais New Member

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    TWErvin2 - Thanks for taking the time out to reply in such detail. I will try my best to answer you and ask for some clarification on a couple of points you made.

    Regarding the 10% royalties to base off of what is left after all the costs, that isn't very much indeed. You mentioned the contract is negotiable which is good, but I suppose as a 1st time author, the publishing company is in the power position to some extent?

    They did come to us recommended by a very successful author in the same category as my wife, so I suppose they are reputable but never hurts to be cautious. They do have many well known books in shops and online as well.

    Regarding the contract content, my reply to them will be to send the full contract but with some text concerning their email offer. I can only assume their email was only to see if she bites on the 10%, and if yes, then they draw up a contract. That being said, I don't know how this normally works, and if this process is standard or if they are taking advantage of someone with zero experience.

    I will keep my eyes peeled for the key points in the contact as you mentioned... subsequent works, what date the book will be published etc... Regarding right of first refusal, my wife intends on writing further books so this will be a key point in the contract.
    Regarding how and when the rights revert to the author, I will look for this as well. Don't want to get caught in a vulnerable position after the book goes out of print.

    "If your wife is doing all of the layout and design...what will this publisher do? What part to they play to earn 90% of the profits, as your wife is only going to earn 10% of the net?"

    This is a good question. I'm not entirely sure how to answer this yet, nor am I sure how to ask the question to the publisher.

    Your advice regarding consulting a literary lawyer seems like the best next move for us. I smell something a little odd with their offer thus far after comparing it against your feedback.

    Would you happen to know a good international literary lawyer?
    We live in Germany so preference would be to consult someone in the US or UK being the book is in English and would be published in the US, Australia, and the UK.

    Thanks!
     
  5. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    yes, you DO need to consult an attorney specializing in international literary law... as to where that attorney should be located, where is the publisher based?... is it in the US/UK?... do they have a branch in germany?

    and are there no attorneys in germany who advise authors on international publishing issues?
     
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  6. TWErvin2
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    TWErvin2 Contributing Member Contributor

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    I will send you a PM, Bryan, regarding your question.
     
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  7. Bryan Gervais
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    Bryan Gervais New Member

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    Mammamaia - Thanks for your reply.. They are located in Australia with offices in the US and UK, but not in Germany. There may be international literary lawyers here in Germany, but from my experience in other areas with lawyers out here, it is not very common. Possibly due to language constraints. That being said, I have not dug very deep yet. This will be something I add to my list.

    TWErvin2 - Thanks, I will read it and come back to you asap.
     
  8. TWErvin2
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    TWErvin2 Contributing Member Contributor

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    In the end, your wife, the author, is the one who has all the power until the contract is signed. She is the one with the book that if they're interested, believes will earn them profit. But a first time author, with no track record of sales does have less clout than an established author that sells well.

    Most publishers, at least with fiction, have a boilerplate contract, so sending a copy of such a contract shouldn't be a problem. Some publishers have points they will negotiate on, other parts they won't. An experienced agent and/or attorney would be far better at that aspect than would a first time author. Many authors will tell you that an agent earns their 15% in the negotiation process. Any publisher that extends a contract and says take it or leave it...I would be wary of, especially if the contract isn't 'fair' to an author. I would suggest that in most circumstances, 10% net isn't fair.

    Another example: if the publisher sells the book on the Kindle, and the book has a lot of pictures, it's likely that the book will sell above $9.99, which means that the publisher will get 35% of the cover price. So, if the book sells for $12.99, after reducing the cost for download (an estimate) there may be $12.50 left, sent back to the publisher. The 10% net, would then be $0.45 per copy. Most contracts grant the author at least 25% of the retail price, which would be $1.10. Those numbers are just made up to illustrate a point. Even if the publisher kept it at $9.99 for a 70% to the publisher, the author would still only earn $0.67 cents, as opposed to $2.50 per copy sold.

    Again, royalties are only one item in a contract. While it's what many authors focus on, there are other important aspects/clauses that could hamper an author's potential long term, truncating a potential career. That is what an agent/attorney is for. They have experience in such matters.

    Those are only a couple other issues. As I said, that's what representation is handy for--to avoid pitfalls and to obtain the best possible terms for the contract.

    I don't know either. But it very well could be part of the negotiation. If they are not paying an editor or someone to layout the project/book, then they save money--other than having to proof a galley.

    Mammamaia is pretty sharp on these things too, and I saw she commented above. Good luck as you move forward, and I wish you the best.

    Terry
     
    Last edited: Mar 4, 2014
  9. Bryan Gervais
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    Bryan Gervais New Member

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    Terry - Your detailed and informative help is greatly appreciated. At this stage, we are waiting on the publisher to send the contract. I found it to be a bit odd that they asked my wife to agree on the 10% and no advance as a prerequisite to them sending us the contract.

    Their eventual reply to my email request to see the contract first, and only then make an informed decision, should tell me a bit more if they are playing a cat and mouse game with us. Hopefully they play nice, but at the end of the day, I suppose they are looking to maximize profits like any company. I would assume a win-win situation in this industry is a must being it is so easy to go public and influence company reputation.

    Yes, Mammamaia has already been quite helpful. Thanks for the reference.
     
  10. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    i'll be glad to take a look at the contract when you get it, bryan... i'm not an attorney, but have dealt with literary contracts for decades and can at least let you know if it looks legit...

    i have to say i have my doubts about this company, due to their demanding acceptance of terms before even sending the contract for review...

    love and hugs, maia
    maia3maia@hotmail.com
     
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  11. Bryan Gervais
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    Bryan Gervais New Member

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    Thanks Maia!

    While I am waiting on the contract to arrive via email, something came to mind. How does one track the sales of one's book?
    If my wife's book sells 15,000 copies worldwide for example, what's stopping the publisher from releasing a number of only 7,000 sold?

    Is there traditionally some sort of portal where you can log into and track sales, or literary governance standards they must adhere to? Or must one simply have blind trust for publishers? I would assume there is a lot of room for dishonesty here if not regulated.

    Thanks again and all the best...
    Bryan
     
  12. TWErvin2
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    TWErvin2 Contributing Member Contributor

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    Bryan,

    Usually there is a clause in the contract that states the author is allowed to have a representative review the sales records of the publisher, usually no more than once a year, or maybe every two years, at the author's expense, unless there is something like a discrepancy of over 10% discovered (or what the contract stipulates). It can get tricky as how payment in royalties are reserved against returns (bookstores are allowed to return copies of the unsold books for return credit, generally there is a timeframe that goes for months or even longer--I'm not sure on this. Thus, what reflects a sale vs. a book sitting on the shelf). So it is sometimes difficult to assess 'exact' sales numbers, and an author him/herself or an average accountant probably wouldn't be able to review the books accurately very easily. You'd need to know what to look for. As it's been indicated that an advance is not likely, so that would be one less concern in such a mix.

    Terry
     
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  13. Bryan Gervais
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    Bryan Gervais New Member

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    Terry,

    Thanks for the info. I suppose this leaves some area for dishonesty on the side of the publisher should they be predisposed to such actions.

    Just received the contract and it is full of verbiage which I have very limited experience with. The agent added in the email that it is the same contract he and other authors sign when they do books with the company (He is a well known author in Australia), but not all of the clauses apply to every author, and as it is a draft, certain items can be changed.

    Again thanks for the reference and invaluable help thus far.

    Bryan
     
    Last edited: Mar 6, 2014
  14. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    which is why a firm's reputation is the first thing an author should check, by looking for a listing on p&e, googling for unhappy author reviews, etc...
    'agent'?... does your wife have an agent?

    i'm confused... is the person who sent you the contract your wife's agent as well as an author himself?

    why not?... a publisher's contract is usually their standard/'boilerplate' one and is not adapted to individual authors' needs/preferences until after negotiations with the author and/or the author's agent have been completed...

    whose 'draft'?... this 'agent/author' person who sent it to you?
     
  15. Bryan Gervais
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    Bryan Gervais New Member

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    Sorry, my error. Still new to the writers world. Agent = The person working for the publisher, who is also an author himself. I take it, agents are a separate and external company/role who do not work internally for the publisher, rather they are hired by prospective authors to find publishers for them?

    Yes he is. On the website, he is displayed as commissioned editor and author of more than 30 books. I will send you a private chat on the details.

    My inexperience shinning again. He just stated this in the email, so I thought I'd add it in this thread to validate.

    It's from the person working internally for the publisher.
    Thanks for your patience with me. I need to get the terminologies and much more knowledge in this industry. Will do more homework and then a lot of the confusion I am creating should go away. :)
     
  16. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    this is troubling...

    publishing house editors are salaried employees, do not normally work on commission... so, if this company has its author-clients trawling for new authors in order to make a commission on signing them, that amounts to a pyramid scheme, in my book... or too close to one for comfort!
     
  17. TWErvin2
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    TWErvin2 Contributing Member Contributor

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    I agree with Mammamaia. It is a red flag, something that could be of concern to me.

    Small publishers sometimes have editors that earn a % of sales of a novel instead of earning a salary. So it's not unheard of.

    Two points:
    1. That answers (or may answer) why your wife is doing the layout, and if so, what is the author/editor doing to earn his cut? From my understanding, a nonfiction author provides the text/content, maybe pictures and suggested captions, etc., but the editor completes most of that. They're supposed to be the layout experts, especially so it works not only for print, but also for various ebook formats. Your wife would provide the chapters, suggested headings, section breaks and such. (I've only had works of fiction published--but my publisher gets the editing done and does the layout for print and ebooks).
    2. The author/editor cut, would very likely come out of the 'net profits,' making what your wife's cut even smaller.

    In truth, unless this publisher has distribution into many brick and mortar stores (that doesn't mean 'available for order' but an actual sales force that promotes and gets placement to booksellers, more than just a catalog sent to bookstores) your wife could be better off simply self-publishing.

    I would really do a lot of research before signing or agreeing to anything with the publisher in question. A literary attorney may but an agent who represents nonfiction (they type/area that your wife writes) would know right off about this publisher--if they're reputable or one to avoid. That is one if the reasons authors seek representation from an agent.
     
  18. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    it may not be unheard of for editors in small houses...

    but what is, imo, is a publishing house of this one's size having their authors offering contracts and being paid a commission for every one they get signed, which certainly fits the pyramid scheme picture... as does this guy's attempts at coercion with a demand for acceptance of some terms before even providing the standard contract for revue... it's all extremely unethical, in my view...
     

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