Book Publishing Contract

NOTICE: The information contained in this publication is intended as a general information resource for GWA members and not legal advice. No contract activities should be conducted by any members without consulting proper legal advice. Free legal advisory services are available to GWA members through the association for writers' rights issues. The GWA disclaims any and all responsibility suffered as a result of reliance on the information contained herein without proper legal advice.

Introductory Comments

This agreement is structured so that the author controls all ownership aspects of the work; the publisher is merely the recipient of licensed elements such as reproduction and public distribution. The publisher's ability to publish and market the book is limited to the term of the contract, and the term ends when the book is "out of print." The out-of-print clause is most favorable to the author because it allows the author to declare the contract at an end when the sales activity or the royalty payments are minimal or non-existent.
While the royalty paragraph (No.4(b)) is by example only (individual publishers may insist upon their own royalty schedules), it illustrates the kinds of works that may emerge from the initial publication of a book.
All publishers differ in their approaches to authors; so, there is no guarantee that the GWA draft will be adopted by any publisher to whom it is proffered. It is, nevertheless, a starting point and a base that is author-biased. Please consult with your attorney before negotiating with this form agreement.

BOOK PUBLISHING AGREEMENT

THIS AGREEMENT, made this _______ day of ___________ , 20___ , between [Publisher's Name], [Address] (hereinafter referred to as "PUBLISHER") and [Author's Name], [Address], (hereinafter referred to as "AUTHOR").
WHEREAS, PUBLISHER wishes to commission a book on the subject of _________________ , tentatively titled __________________; and
WHEREAS, AUTHOR is willing to prepare such a manuscript:
NOW, THEREFORE, in consideration of the mutual promises and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by PUBLISHER and AUTHOR,

IT IS AGREED:

1. Book. AUTHOR will write a book for publication, tentatively to be titled: _____________________________ (the "Work").
2. Copyright Ownership. AUTHOR will retain copyright ownership of the work, and will license certain rights to PUBLISHER, as set out below.
As the owner of the Work, the AUTHOR shall have the right to register the copyright to the Work in the AUTHOR'S name or any other name in all countries and, except as such rights are licensed to PUBLISHER under the terms of this Agreement, to exercise exclusively the rights appurtenant thereto and to dispose of said rights in all countries and in all languages.
3. Rights Licensed to Publisher. During the term of this Agreement, PUBLISHER shall have the exclusive right to publish, market and distribute the Work; to enter into contracts permitting others to market and distribute the Work; to broadcast by radio, make recordings or mechanical renditions, publish book-club and micro-film editions, make translations and other versions and, in general, create derivative works, grant rights such as television, movie, radio, syndication and other rights, and to otherwise utilize the Work and material based on the Work.
PUBLISHER will use its best efforts to market the Work to as wide an audience as possible and will reasonably pursue every opportunity to promote the Work.
4. AUTHOR'S Compensation. (a) Fee. PUBLISHER agrees to pay AUTHOR $ ___________ upon the execution of this Agreement and $________________ upon approval of the Work for publication.
(b) Royalties. In addition to the fees in (a), above, PUBLISHER will pay royalties to AUTHOR in the following amounts, which are percentages of "revenues received" for sales of the Work:
[1] from sales of a hardcover edition in the United States, its possessions and territories, and Canada: 15%
[2] from sales of paperback of other soft-cover editions in the United States, its possessions and territories, and Canada: 15%
[3] from sales of a hardcover edition elsewhere than listed above: 10%
[4] from sales of derivative works such as condensations and adaptations not defined elsewhere within this Agreement: 10%
[5] from sales of film, slides, transparencies, microfilm and similar media: 10%
[6] from sales of audio recordings and audio/video adaptations: 10%
[7] from sales or licenses or electronic versions, including but not limited to software adaptations and use of the Work in databases, in electronic information storage and retrieval systems: 12%
[8] from radio and television broadcasts: 10%
(c) Serial Rights. PUBLISHER may publish the Work in serial form in a newspaper or magazine, prior to the Work appearing in book form, or after the Work's publication in book form. The royalties payable to the AUTHOR for serial publication will be 50% of the received revenues, as defined below.
(d) Revenues Received. "Revenues Received" means money received by the PUBLISHER, minus any applicable discounts and excluding taxes, returns, credits and shipping charges.
(e) Royalties due shall be paid, without prior demand, semi-annually in March and September for the six-month period ending the previous December 31 and June 30, respectively, and shall be accompanied by appropriate accountings.
(f) Incentive. AUTHOR's compensation under this Agreement shall be increased by $ ________ for each working day before __________________ that the manuscript is actually delivered to PUBLISHER.
5. Delivery schedule. (a) Outline. AUTHOR will deliver an outline of the Work to PUBLISHER by . PUBLISHER shall accept the outline or require AUTHOR to make changes within 10 working days after it receives the outline.
(b) Manuscript. AUTHOR will deliver the manuscript to PUBLISHER not later than _________ PUBLISHER may designate a representative to monitor AUTHORs progress. AUTHOR will furnish a progress report in writing if requested by PUBLISHER.
6. Manuscript standards. (a) In general. AUTHOR will deliver the manuscript in typewritten form, on 8-1/2" x 11" sheets on one side only. The manuscript will be submitted in duplicate and a third copy will be retained by AUTHOR. It will be in proper form for composition use as copy by the printer, and the content will be such as the AUTHOR and PUBLISHER are willing to have it appear in print.
(b) Material to be Original with Author. The Work shall be original with the AUTHOR. AUTHOR agrees that the manuscript will contain no material from other copyrighted works without both the PUBLISHER's consent and the written consent of the owner of such copyrighted material.
7. Editing and publication. (a) In general. PUBLISHER may edit the manuscript for the original and all subsequent printings. AUTHOR will read the proofs, correct them in duplicate and promptly return one set to PUBLISHER.
(b) Credit. AUTHOR's name shall appear on the title page of the Work as the sole author of the Work.
8. Courtesy copies. PUBLISHER will furnish AUTHOR twenty (20) copies of the Work upon publication. Additional copies may be ordered by AUTHOR for promotional use at publisher's cost of printing and shipping.
9. Revisions. AUTHOR may be requested to revise the work if PUBLISHER considers it necessary. Before a revised edition of the Work is produced or published, AUTHOR has the right to negotiate a new contract with the PUBLISHER.
10. "Out of Print" Status. If at any time the Work is out of print, all rights in the Work as licensed to PUBLISHER by AUTHOR under this Agreement, will revert to the AUTHOR. If at any time the Work is out of print, AUTHOR may, for $________, or a fee reasonably agreed upon between PUBLISHER and AUTHOR, purchase the printing plates to the Work.
For purposes of this section of the Agreement, the Work shall be deemed out of print at any time in which PUBLISHER does not ship at least _______ copies in any quarter of any year to book stores or other places of sale, or in any period in which royalties paid to AUTHOR are equal to or less than $__________. PUBLISHER shall supply shipping figures to AUTHOR upon request. If at any time one of the above events occurs, AUTHOR shall have the right to declare the book out of print, in which case, the rights accorded to AUTHOR under this Agreement shall become enforceable.
11. Best efforts. PUBLISHER and AUTHOR agree to use their best efforts and cooperate in the performance of this Agreement so that its purposes may be successfully carried out.
12. Inspection. Upon reasonable notice and during regular business hours, AUTHOR shall have the right to inspect all books and records of PUBLISHER relating to the amounts payable to AUTHOR under the Agreement. AUTHOR shall have the right to have its representative audit such books and records to determine the accuracy of PUBLISHERÕs payments to AUTHOR. Any overpayment by PUBLISHER to AUTHOR shall be credited against future payments to AUTHOR, and any underpayment shall be immediately due and payable by PUBLISHER to AUTHOR. These rights shall extend 18 months past the date this Agreement is terminated.
13. Waiver. Either party's waiver of, or failure to exercise, any right provided for in this Agreement shall not be deemed a waiver of any further or future right under this Agreement.
14. Successors and assigns. Subject to paragraph 16(b), this Agreement shall be binding on the parties, and on their successors and assigns, without regard to whether it is expressly acknowledged in any instrument of succession or assignment.
15. Notices. All outlines, manuscripts, notices, and other communications required by this Agreement shall be in writing and shall be delivered either by personal delivery or by mail. If delivered by mail, notices shall be sent by Express Mail or by certified or registered mail, return receipt requested, with all postage and charges prepaid. All notices and other written communications under this Agreement shall be addressed as indicated below, or as specified by subsequent written notice delivered by the party whose address has changed.

If to PUBLISHER: (Address)

If to AUTHOR: (Address)

16. Governing Law. This Agreement shall be governed in all respects by the laws of the State of ____________ .
17. Captions. The captions of each paragraph of this Agreement are inserted solely for the reader's convenience and are not to be construed as part of the Agreement.
18. Severability. If any provision in this Agreement is determined by a competent authority to be unenforceable, all other provisions of this Agreement shall continue in full force and effect.
19. Amendment. This Agreement constitutes the entire agreement between the parties and supersedes all prior written or oral agreements. This Agreement may be amended only in writing clearly setting forth the amendments and signed by the party against whom enforcement is sought.

IN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement.

PUBLISHER
By: ________________________
Name & Title

AUTHOR
By: _______________________
Name & Social Security Number

A Few Words About Model Contracts: As with all contracts, they are at their best when they have been reviewed by an attorney. Much of the contract negotiation process concerns business, rather than legal, decisions. Nevertheless, many business decisions contain legal ramifications, and the legal results of using the following agreements will vary from case to case. These model agreements are intended to provide accurate and authoritative information on the subject of author/publisher rights. In publishing these agreements and the comments that accompany them, neither the Garden Writers Association of America or John W. Hazard, Jr., is engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. All of the contracts have been written with an author bias; all are written in conjunction with the assumption that authors will want to continue to own the copyrights in the works they create, even after publication. Will all publishers agree to the terms in these model contracts? Probably not, especially where a publisher's corporate culture demands that all copyrights be assigned to the publisher or its parent corporation. As with all contracts, the outcome of these model agreements will depend on individual negotiations between author and publisher. The tactical advantage in using these agreements is that when one of them is presented to a publisher, few doubts will exist about the importance to the author of the copyright ownership issue. This should produce a prompt response from the publisher as to whether or not he/she will accede to the author's requests. Getting a quick response, even if it is negative, is usually a help in moving the negotiations along.

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