Contracts That Resemble But Are Not Publishing Agreements

January 30, 2011

Traditional publishers produce, distribute and market books at their own expense. Print on demand companies offer editorial, design and publishing services or are printers disguised as publishers. These "publishers" are in the business of fulfilling whatever sales demand the author is able to generate through her own marketing efforts. If you are considering using a non-traditional publisher check first with "Writer Beware" a blogging site I recommend. The bloggers on "Writer Beware" have recently discussed a number of companies to avoid including faux publishers and one in particular who is a defendant in a civil fraud action commenced by the Florida Attorney General.

With this caution in mind, I want to look at several specific provisions in a contract from one of the faux publishers a client recently brought to my attention. The contract included the usual boilerplate provisions expected in a publishing contract but also contained a provision that required the Author to make a substantial payment. The provision read as follows:

The Author shall receive 10 free copies of the Work and agrees to purchase 1,500 books at $9.22 per copy (payable 1/3 on signing, 1/3 30 days from delivery, and 1/3 90 days from delivery) plus the cost of shipping.

In other words, the Author agreed to pay the "publisher" $13,830 plus shipping for the privilege of having her Work published. The provision continues on the subject of distribution, a cost in money and time which is also transferred to the author:

The Author is encouraged to sell copies of the Work at public speaking engagements, the Author's website, by direct mail, including through a newsletter, as a premium ... or any other manner.

The "publisher" is prepared to "negotiate [with the Author] in good faith for a higher discount depending on the number of copies involved." Such an arrangement would only be suitable for authors on the lecture circuit who sell their books to audiences or over the Internet, but $9.22 per copy probably represents a significant markup over the actual cost of printing and binding.

What this Author signed was not a publishing contract but a printing contract. The author is required to purchase books in bulk thereby relieving the "publisher" from printing at any one time more copies than the Author orders. The royalty schedule which appears typical for the kind of work involved is actually illusory since the only income (if any) is to come from the Author's own efforts.

There is difficulty in terminating this type of contract because as a so-called publishing contract it grants exclusive rights. One possibility, successful in this particular case, was to put the "publisher" on notice under the termination provision which contained a definition of "in print." A book available only on demand is not "for sale in at least one U.S. edition" as that term is understood in the publishing industry. The "publisher" agreed, the contract was mutually terminated and all rights were reverted to the author.