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The Art of Story Writing : CHAPTER XXVII Contracts with Book Publishers

by Nathaniel C. Fowler, JR   

CHAPTER XXVII Contracts with Book Publishers

THE book publisher has a printed contract, containing blanks to be filled out, which he executes in duplicate, he and the author signing both copies. These contracts are very much alike in substance.

The publisher agrees to publish the book under the conditions specified, either at his own expense or wholly or partially at the expense of the author. According to the contract, the publisher is to furnish the author, without charge, ten or twelve complete copies of the book, the author being permitted to purchase additional copies at the trade or wholesale price.

The name of the book is specified in the contract, but is usually followed by a clause reading somewhat as follows: "Or other title which may be mutually agreed upon." Many books are published under a title which does not appear in the contract, a better one being chosen after the contract is made.

The publisher usually agrees, in the contract, to stand the cost of author's corrections up to a specified amount, usually twenty-five dollars, or ten per cent of the original cost of composition. For example: Let us suppose that in setting the book the publisher incurs an expense of five hundred dollars. The author is, then, permitted to make corrections and alterations upon the proofs up to ten per cent of five hundred dollars, or fifty dollars. All corrections made by the author, after the book is set, in excess of the amount allowed, must be paid by the author. I have spoken of author's corrections in another chapter.

The majority of contracts remunerate the author by paying him a royalty either on the retail or list price of the book, or on the wholesale price, usually the former. This percentage is about six per cent, on text-books, or schoolbooks, and about ten per cent on other works. (See the chapter, "Terms for the Publication of Books.")

The usual contract has in it a clause to the effect that if the publisher fails to keep the book upon the market, the copyright ownership is, by this failure alone, transferred to the author. The author, then, may, if he will, arrange with another publisher for the re-publication of the book, or put it to any other use, for by default on the part of the publisher it becomes his property. The publisher, however, retains the electrotype plates, the cover dies, and the illustrations. The author has no right to them, unless he purchases them of the publisher.

The following forms of contracts are presented as representative of those used by the better class of book publishers. The words printed in Italics represent the portions to be filled in specifically in each case:

MEMORANDUM OF AGREEMENT made this first day of January, A. D. 1913, by and between George T. Smith, party of the first part, and The Massachusetts Publishing Company, of Boston, Massachusetts, Booksellers and Publishers, party of the second part. The said George T. Smith in consideration of the agreements of the said The Massachusetts Publishing Company, hereinafter contained, hereby agree with them, and their representatives and assigns, that he will properly prepare for the press a work to be entitled The Ups and Downs of Life (title subject to change by mutual agreement).

That the said The Massachusetts Publishing Company are authorized to copyright said work in their own name or in the name of said Smith, and to procure any renewal of same for the said Smith or his heirs; that the expense of procuring copyright is to be borne by the said Smith; that the said book shall not violate or infringe any copyright of others, and that he will, at his own expense, protect and defend said book from any adverse claims that said book infringes any copyright, and he will indemnify and save harmless said The Massachusetts Publishing Company from all damage, costs, and expenses arising to them by reason of any such infringement or claims that the said book infringes any copyright; that he will license and allow the said The Massachusetts Publishing Company and their representatives and assigns, but no other party or parties, to print, publish, and sell the aforesaid book, and any revisions of the same, in such editions as the demand may require, during the continuance of any copyrights or renewals thereof which may be obtained therefor, provided, however, that the said The Massachusetts Publishing Company, and their representatives and assigns, shall in substantial good faith keep and perform their agreements hereinafter contained; and that during the continuance of the exclusive rights hereby granted, he will with all reasonable diligence superintend, in the usual manner of authors, the preparation for the press of any new edition thereof; and will not prepare, edit, or cause to be published in his name or otherwise, anything which may injure or interfere with the sale of the aforesaid book.

The said The Massachusetts Publishing Company, in consideration of the foregoing agreements of the said George T. Smith, hereby agree on their part that they will, after the delivery to them of the manuscript thereof as aforesaid, secure a good and valid copyright thereof, and print and publish an edition of said book, ten copies of which they will deliver to the said Smith) for his own use without charge; that they will endeavor to secure the sale of all editions published by them; that they will pay unto the said Smith or his representatives or assigns, a royalty of ten per cent of the published price of said book, in the usual cloth and paper covers respectively. An account of copies sold up to the first day of January and to the first day of July of each year shall be made up semi annually and royalties therefor paid to the said Smith within thirty days from the first day of February and of August of each year.

(Other conditions appear here.)

It is further agreed that from any sum to be paid to the said Smith shall first be deducted the cost of any alterations or corrections exceeding ten per cent of the cost of first setting up the type made by the said Smith in said book, after the portion altered or corrected is in type. It is understood and agreed that such copies as may be given to the said Smith and such other copies as may be used for presentation to editors and others for the purpose of obtaining reviews and notices, or otherwise to promote the sale of the book, shall be free from royalty. The publishers shall sell to the author any copies of said book which he may wish for his own purposes, at as low a rate as they sell similar quantities to the general trade. It is further agreed by and between the parties hereto, that if at the expiration of three years from the date of publication, or later, the publishers shall determine that there is not sufficient sale for the work to enable them to profitably continue its publication and sale, then they shall be privileged to dispose of the copies remaining on hand, as they deem best, free of copyright (it being understood that the party of the first part shall have the option of taking said copies at cost of manufacture). It is further understood and agreed that upon all copies of said book sold outside of the United States the royalty shall be five per cent of the published price, and it is also agreed that upon any edition published for schools and supplementary reading the royalty shall be six per cent of the published price. It is further agreed that the said The Massachusetts Publishing Company shall have the sole right to give permission to print or publish extracts from the said work, and to arrange for its serial publication in newspapers or other periodical publications, but that any sums derived from the same shall be equally divided between the parties of the first and second part, also that no dramatization of the said work shall be made unless the parties of the first and second part shall jointly consent thereto, and that in the event of such dramatization being produced all sums received therefor shall be paid to the said The Massachusetts Publishing Company and shared equally with the party of the first part, payments to be made semi annually by the said The Massachusetts Publishing Company within thirty days from the first day of February and of August of each year.

(Further conditions may be written here.)

IN WITNESS WHEREOF the said parties have hereto, and to another instrument of like tenor, set their hands the day and year first written. The Massachusetts Publishing Co., By William R. Black, President. George T. Smith.

THIS AGREEMENT made this first day of January, 1913, by and between George T. Smith of Boston, Mass., party of the first part, hereinafter called the author, and The New York Publishing Company, a corporation organized and doing business under and by virtue of the laws of the State of New York, party of the second part, hereinafter called the publisher, witnesseth:

WHEREAS, the said party of the first part is the author and owner of a manuscript entitled The Career of a Lawyer, or any other title which may be mutually agreed upon, and desires to publish the same upon the terms and under the conditions hereinafter set forth, and the party of the second part desires upon the said terms and conditions to publish said work. Now, therefore, it is mutually agreed, as follows:

Said author hereby gives and grants unto the said publisher, its successors and assigns, the exclusive right and license to publish, print, and sell the aforesaid work, and any revision thereof, in all book forms during the term of copyright and renewals thereof. Said author hereby covenants with the said publisher that he is the sole author and proprietor of the said work, and hereby authorizes said publisher to take out in its own name the copyright on said work in the United States and Great Britain, but it is understood and expressly agreed that the ownership of said copyright, subject to the license hereby granted, shall belong to the said AUTHOR.

The said publisher agrees upon its part to print and publish said manuscript in book form, at its own expense, in such style and manner, and in such quantity, as it deems most expedient, and to sell the same at a retail or catalogue price of one dollar,. and agrees to manage the sale and distribution of said book, and the advertising and general publicity of the same, and to care for the distribution of the editorial copies thereof, and agrees to pay to said author a royalty of ten per cent upon the retail or catalogue price of all copies of said book sold in the United States, and it is expressly agreed that no royalty or percentage whatever shall be paid upon any copies destroyed by fire or water, or otherwise, or sold at or below cost, or given away for the purpose of aiding in the sale of said work, and provided, further, that if conditions shall arise whereby it becomes necessary to reduce an overstock of said books or to close out an unsalable remainder of sheets or bound books, the said publisher shall have the right to dispose of such stock at such price as it deems desirable, and no royalty shall be paid upon such sales. If, however, a regular catalogue reduction in the price of said book shall be made, the author's royalty is to continue and apply upon the above percentage basis on such reduced price.

It is understood and agreed that said publisher shall be allowed a reasonable latitude in making alterations in proof of said book, which are changes from the manuscript. The said publisher shall bear the first Twenty-five Dollars of the expenses of the printer's charges and other costs of such alterations, and the author shall bear all such expenses in excess of Twenty-five Dollars.

It is understood and agreed that if during the period covered by this agreement, said work shall be published in other than cloth book form, the terms of such publication shall be subject to a further mutual arrangement between the said publisher and said author, and shall not be deemed to be covered by this agreement.

Said publisher agrees to make and furnish to said author written statements of sales of said book, and to pay royalties based thereon, twice a year, namely, in February and August of each year.

Said publisher will present to said author, free of charge, twelve copies of said book immediately upon publication, and sell to him any additional copies desired for his personal use at a discount of twenty-five per cent from the retail price of said book, and upon said additional copies so purchased by said author, he shall be entitled to royalties.

The said publisher hereby agrees to transfer to the said author all rights and privileges which are contained in this Agreement, provided that he, the said publisher, fails to be able to supply the market with the said book for any period exceeding ninety days.

It is expressly understood and agreed that if the publication of said work in the manner and style agreed upon by the parties hereto shall occasion or directly or indirectly result in any suit at law or in equity, to which the said publisher shall be made a party by reason of any real or claimed libel, infringement of copyright, or unfair competition, then the said author will indemnify and save harmless the said publisher from and against all costs, damages, counsel fees, and any expenses whatsoever which the publisher shall or may sustain or incur in and about the said action or suit.

{Other conditions may appear here.)

IN WITNESS WHEREOF the parties hereunto have set their hands and seals, the day and year first above written. George T. Smith. [Seal.] Witness to signature of author: Walter W. Warren. The New Yoke Publishing Company, [Seal.] By John M. White, President. Witness to signature of publishers: Mary W. Green.