On Book Contracts: What The Author Must Know

Recently, there was a polarizing online conversation in the Nigerian literary space involving writers and publishers and book influencers. One sad thing that stood out for me following the conversation, is the plight of many young writers in dealing with publishers in Nigeria (and possibly in Africa). When it comes to publishing, the author has advantages in terms of rights when they self-publish but self-publishing has its terrible sides and is never recommended for serious writers or those who want to write professionally on the long term. But with traditional publishing, the case is different, the advantage mostly tilts towards the publisher, this is because they are the ones making all the investments. In traditional publishing, the publisher has money to invest in not just the book but in the author – they negotiate rights and pay for their acquisition in most cases, they invest in several edits and proofreads, cover design, layout, printing of hundreds or thousands of copies. Then the publisher pays for distribution and ensures that the book spreads as far as they have the powers and the connections to. They invest in author promotion which includes local and (international) ads, depending on their size, reach and influence. They invest in book tours and signings, get the author to attend festivals and events and enter the book possibly for prizes (the scale of all these depends on the publisher’s size, pocket and reach). So, publishers in Nigeria, in struggling to cover these and protect their investment, attempt to be ahead of the author, not caring about the author’s interest. Therefore, for the writer going into traditional publishing, especially in Nigeria where experience over the years has shown that most are out to rip off the author, there is strong need to be careful, thorough, demanding and knowledgeable in what to ask for in the contract. The traditional publisher in Nigeria is undoubtably faced with numerous challenges. There is paucity of funds to engage the industry the way they ought to, there is a general disorganization in terms of book distribution as there is no clear synergy between the bookshops, book publishers and delivery/mailing companies, in fact, there is little or no major book distribution companies the likes of Hatchette Books, with the capacity to take over book distribution stress from the publisher and ensure that books get to individuals and places where they are needed in no time. The traditional publisher also faces poor regulatory framework protecting their interests and businesses, zero government support and incentives, poorly structured market which aids piracy for books they manage to promote, low readership, lack of access to investment funds that enable them acquire books and pay authors and when they can, the interest rate is high. The Nigerian traditional publisher faces a poorly run or non-existent printing industry, a dearth of local paper mills which causes printing companies to depend on imported papers and when they find good ones, see that they are expensive which spikes cost of books when published, so the big publishers depend on foreign printing companies based in Asia, then cost of importation creep in, exacerbated by high exchange rates, rates fluctuations, high shipping cost, high import duties even for books etc. To mitigate this, Nigerian publishers have not invested in research and thinking. They do the easy thing – find genius ways to cheat their authors in the contract and to evade paying royalties. In Nigeria, I have had to lose a lot of money on unpaid royalties. Many of my author friends have faced same. In fact, it is difficult to find a Nigerian publisher who is honest with accounting for royalties and in paying as at when due (a subsequent article can visit this). The young or budding author having now noted all these must ensure as much as possible that whatever contract they sign with any Nigerian or African publisher or any publisher anywhere in the world for that matter must be one that protects their interest. The traditional publishing world, especially in dealing with contracts, is complex as the author has to understand royalties and royalty calculations, advance payment and what advance against royalties mean, local and foreign rights, the difference between film and television rights, option agreement, duration of contract, territories, regulating laws, third party rights, competing work and how they can affect future works they produce, rights to first refusal, legally objectionable materials and what that means, etc., etc. this is where agents come in. The Agents help the author to navigate all these and make good deals for the author, while getting a fraction of the deal but sadly, there is no single literary agency existing in Nigeria and only a handful exist in the entire continent of Africa and to add salt to injury, getting an Agent generally say from the US or UK or Canada where there are literarily, thousands of them is a herculean task, in fact, it is easier to pass through the eye of a needle than to get one (I for one have no book Agent. Though i have an agent who helped negotiate my film rights with Bump Films). Therefore, the author must wash their eyes clean and scrutinize the contract well to be sure that though he is being screwed, he is not screwed too much (Lols!). The first start for the author who has no agent and who wants to be published traditionally is to ensure that he shares the contract with other experienced author friends in the field. I was fortunate when signing my first contract (for Satans & Shaitans) with Jacaranda Books, UK in 2013 to have the friendship and guardianship of such friends as Chika Unigwe and Mukoma wa Ngugi, who read through the contract, worked me through it and offered beneficial advice. I have also extended this gesture to other writer friends who send their contracts to me and together we piece them apart and make sense of it before they respond to the publisher. 1. Demand a Contract Memo: It is important to ask the publisher to send a contract memo and not the entire contract first. The memo lists the key offers they are making and is easier to digest; what are they offering as advance, what are they offering as royalty, author discounts for books purchased, author copies, territorial rights, foreign territory rights, film and television rights etc. Then respond with your own Memo, possibly in your letterhead, stating your own demands. 2. Share the memo/contract with experienced friends and a lawyer: The problem is that though there are many contract lawyers in Nigeria, many are not conversant with book contracts and its requirements, as it is not an area they deal with often. In fact, an experienced author who has an agent or who has had to deal with many book contracts both locally and internationally might be of better help. 3. Duration: Most publishers in Nigeria and the world over mostly, deviously, do not add duration in their contracts. So, the author signs and the publisher own the rights in perpetuity. Most times, the author doesn’t know this until many years into their writing career, when there are better offers or the publisher is no longer able to promote the book, yet the author is stuck or spends a lot of money to buy them out. So, the young author must insist that duration is a must in the contract. My experience in dealing with publishers in Nigeria shows that the best duration is 5 years. Insist on 5 years, after which the contract can be re-negotiated. I have also seen that for a budding writer with a debut novel, the Nigerian publisher would not add duration, then add 20 or 15 years if caught and negotiate down to 10 years. Some years back, I learned that they had a meeting and agreed not to give authors anything less than 8 years but I have negotiated down to 7 years and twice for 5 years. Nothing will make me go above 5 years now. Nothing. This is because in a year or two, you already know the extent of the publisher’s capabilities, by the third and fourth year, you have already made up your mind to look for another publisher or not. 4. Advance: One of the sweetest parts of traditional publishing is the payment of advance. This is short for ‘advance against royalties’. What it means is that the publisher is willing to pay say N1,000,000 to acquire this book but this is not free money to the author. The author will not earn any royalties on the book until the publisher has recouped this advance. The good thing about advances is that they give the author some bulk money to use and take care of their needs – rent, office space, writing tools like a computer, family welfare, a car, research for the next book or to even take a year or two off work (depending on the size of the advance) to research and write another book. This is against waiting to receive the money in trickles as the book sells. Another advantage is that there is no guarantee that the book will do well. The publisher might misread and invest huge resources into a book and it will be a flop, taking several years to even recoup a quarter of this advance, in that way, the author is secured. So, insist on receiving advance from your publisher. 5. Grant of Rights: Most contracts reads thus ‘In consideration of the payments hereinafter mentioned and subject to terms and conditions herein contained, the author grants to the publisher the sole and exclusive right and license to produce, publish and to further license the production and publication of the work or any adaptation or any abridgement of the work in volume form in the English language for the legal term of copyright . . . throughout (mentions territory already agreed to in the contract memo)…’. The author has to read this part carefully. The part will further outline; (a)print form or electronic form or both – if the author knows that the publisher does not have electronic capabilities, he should not grant electronic rights. My advice is to not give Nigerian publishers e-book rights. (b) audio rights – do not grant a publisher audio rights when they obviously do not have such capabilities. This is because, another company might make an offer tomorrow asking for audio book rights and the author can make more money from it. If this right is granted to the publisher, the author loses money. You can also share the rights (discussed below). 6. Territory: Most publishers around the world, including the Nigerian publishers who obviously have no atom of capabilities to market and distribute their books outside Nigeria trick authors into signing away ‘world rights’. In Negotiating contracts, the author has to first study a publisher. That a publisher has a large following on social media and publishes big authors doesn’t equate to territorial powers even in that country talk more of the broader world market. So, be careful. A popular Nigerian book which won the NLNG Nigerian Prize for Literature has no Nigerian edition till date and cannot be sold widely in Nigeria because the author (who obviously didn’t know the book was going to do well) signed off world right to their publisher. This publisher has vehemently refused to relinquish some territorial rights. For a debut author, this is usually a deal breaker. The publisher believes he is doing the author a favor and insists on world right. Now, should the author refuse because of this? No. Chika and Mukoma taught me to, in signing my first contract when it became a deal breaker, give world right but insist on retaining some territories. So, the author can for their first book when they are trying to get into the market, relinquish world right but retain some territories, say their home country where they have influence and can easily sell the right to a home/local publisher. For a Nigerian publisher, on no account should the author relinquish world rights. My advice is to give Nigerian rights ONLY, or West African rights and for the serious ones, give African rights ONLY. Do not fall to the gimmicks of “We have other partner foreign publishers that will buy UK or US or Asian rights from us”. Recall that when you give out WORLD RIGHTS, the publisher has the exclusive powers to negotiate and sell the book to publishers in other territories. 7. Foreign Rights: Even when the publisher has taken world rights, the author MUST insist on putting a clause called Foreign Rights that protects their interest. In this clause insist that though the publisher has world rights, they merely act as 'agent' in negotiating other territorial rights. In this case, if the book is published in the UK and a Nigerian publisher or South African publisher or Canadian publisher wants to acquire it, they will negotiate on your behalf and whatever the payment is will be shared between you and the publisher. In this sharing formular, the author has to insist in this clause what it should be and to his advantage. 80% to 20% in favour of the author, 75 to 25 % in favour of the author. Never ever go below 50% (If it’s a big publishing house and they are paying a lot of money as advance to acquire world rights). 8. Subsidiary Rights: There are other smaller rights that can make money for the author and publisher if the book does well or if the publisher is influential or strategic. They includes; foreign language rights, book club rights, first serial rights, second serial rights, digest rights, book condensation rights, anthology and quotation rights, educational and simplified reprint rights, hardcover reprint rights, paperback rights, large print rights, braille rights, straight-reading rights (non-dramatic reading of the work for any audio or visual medium including (but not limited to) video, stage or any form of sound recordings including cassettes, discs etc), audio recorded undramatized readings, copyright licensing agency etc. The author must ensure that the contract specifies what percentage they are to get for in the case that any of these rights are explored. Ensure that you do not receive anything less than 60%. Ensure that the contract adds a clause stating clearly that you will be consulted and your approval sought on the sale of all of the rights listed above. Ensure there is another clause stating that the terms of the sale of any of the rights above must be agreed by the author before it is fully explored. For Nigerian publishers, ensure you retain all these rights. The clause should say: Subsidiary Rights: Retained by the author. The reason is that this advantage will help you in negotiating with a bigger global publisher in the future. You never can tell the amount of luck that will follow your book, unless we have a Nigerian publisher in the future with the capacity to explore and play globally. 8. Royalties: There are many kinds of royalties. But in Nigeria, our publishers lump everything up as royalties and offer same percentage. First off, for a debut author dealing with a global publishing company, the royalties are usually small. From 7.5% to 8%. Rarely 10%. Yes. That’s why authors are one of the poorest creatives in the world (Lols!). A big publisher or foreign publishers usually separate the royalties for hardback and for paperbacks and mostly offer more for hardbacks. Ensure that there is a clause saying that if you are getting say 7.5% as royalty for a paperback, that this percentage should be increased if the book sales cross a certain number. For example: 7.5% on the first 3000 copies and 10% thereafter. Ask that the royalties be subdivided into Home Royalties, Export Royalties, High Discount Royalties, E-book Royalties. 9. E-Book Royalties: The author must know that e-book royalties are usually higher than paperback and hardback royalties. Don’t accept anything less than 25% on e-book while dealing with a global publisher with the powers to influence e-book sales and don’t accept anything less than 60%. I haven’t agreed to anything less than 50% myself. This is because, the publisher cannot claim they have made any much investment into e-books such as printing and distribution etc. 10. Royalty Calculations: Nigerian publishers have tried to be funny in the calculation and payment of royalties. This will be treated as a special separate article so the author understands when the publisher wants to rip them off. 11. Author Discounts: Though the article on royalty calculations will further treat this but ensure that you get huge percentage discounts for books you purchase as the author. For all my books, I have received 50% discounts mostly & recently 55% discount. I have never gone below 40% discount. What this means is that if a book is selling for N10,000, the author can buy for half of that cover price and sell same book for N10,000 and make money for himself. Bear in mind also that family and friends will collect your book and never pay for it, so it makes sense if you are getting them at a good discount. Feel free to send an email or contact me on social media if you want me to help take a look at your contract memo or contract. There are still many other clauses in book contracts to cover and I will attempt to do justice to them in the near future. Thank you for reading. Please share with writers in your circle.