I had someone write and ask this: "What is reasonable and what is unreasonable to see in a publishing contract with a small-to-medium-sized house? I ask because I've just been offered a book contract that has this horrendous non-compete clause. The publisher is basically saying I can't do ANY OTHER BOOK until this book goes out of print. Can you give me some perspective? Also, is it reasonable for me to ask for more free books? And what should I ask for in terms of books and discounts?"
I love talking book contracts, so let me wander through several contractual ideas…
1. It's perfectly reasonable for a publisher to have a protected selling season on the book they are doing with you. (That doesn't mean you have to agree to it, but it's certainly a reasonable request.) Producing a book is a huge investment, and your publisher should have the ability to sell your book without fear that you'll soon do a similar book with someone else. It's also reasonable for them to say "you won't do a book that directly compete with this book." However, it is NOT reasonable to ask a writer to not ever write anything else on the topic, especially if you speak and write in a particular area (such as "parenting" or "healthy lifestyles" or "Amish vampires"). Negotiate a fair non-compete that protects the publisher, but also allows you to write to your audience.
2. A second idea that's reasonable: Lots of people talk about getting "more free books," but I think it's unreasonable to ask a publisher to give you a ton of free books if you're going to turn around and sell them, thereby becoming a competitor with your own publisher. What's reasonable is to ask for free books that you plan to use for marketing purposes, in order to attract interest in your book and help your publisher sell more copies. The fact is, if you're going to SELL your books on your website or at personal appearances, you need to negotiate a fair buy-back and purchase your copies.
3. By the same token, it's unreasonable for a publisher to extract money from authors for their own books. I don't understand why a publisher wants to make money off their own authors by selling them back their own books at a significant profit. So yes, it's perfectly reasonable to ask for a high discount on buy-backs.
4. This one won't be popular, but in my view it's unreasonable to insist that an author sign a document that says you are giving another person the rights to "technology now known or hereinafter invented." In my view, that's a sign of lawyers gone mad. Look, we're doing books. When publishers stop doing books and start doing… um…sneepdawdles, we'll create a new sneepdawdle contract. But for now, we're doing "book" contracts. Can you imagine an inventor selling his idea for a car that runs on water to General Motors, then giving them the authority to use it in any new, future ideas they might come up with? We sign a contract for a certain product, not for anything new that might be created later. I know all the publishers ask for this today, but I find it completely unreasonable. (And my attorney agrees, by the way.) I realize I'm tilting at windmills here — you're going to see this, and the publishing house is not going to bend. But I keep wondering if it will hold up in court…
5. Look at your royalty payments carefully. Some publishers will insist that royalty payments are cut in half if they sell books above a certain discount (say…55%). I find that a strange argument — if the discount is higher, aren't we all simply making less money? So why put that on the backs of the writers? They not keep the same structure, and everyone makes less? Of course, what you may not know is that some sales guys will tell accounts, "We can give you 55% off, because we have to pay the author less at that rate, meaning we're actually making more money." Is that fair to do? Well… it's business. The publishers are trying to maximize their income, so I guess they're doing their jobs. Just be aware of what you're agreeing to. (By the way, I also find that most sales guys will deny they ever do that… but they do. I didn't spend my entire life on the agenting side of this business.)
Again, a book contract should not be approached as a win/lost proposition, so not every point on a contract is worth fighting over. But there are certain things you need to educated yourself about, so you can at least negotiate a fair deal. We'll have more on book contracts in the coming days, so if you've got a contract question, send it along.