Do I have cover approval for the paperback edition of my hardcover book?

Q. My contract grants me cover approval but the paperback publisher never sent me the cover to look at. It’s totally different from the dust jacket on the hardcover, which was fabulous. I’m told that paperback publishers have the right to design their own covers. Is that true?

A. The contract between you and your publisher essentially covers only copies of your work published by that publisher, whether hardcover, paperback or electronic. With very limited exceptions, its provisions do not apply to copies of your work published by licensees of your publisher. If there are particular provisions in your contract that you want carried over to an edition published by any of its licensees, you should list those provisions, by repeating them or by cross-reference to the clauses containing them, in a section of the contract which says that the publisher must include them in its contract with the licensee. Another way would be to say, each time one of those provisions appears in the contract, that the provision must also be contained in any agreement the publisher signs with a licensee for another edition of the book.

Among the clauses that an author is most apt to want included are a prohibition against material by anyone else (whether advertising, the work of another author or anything else) being included in your book; the right for you to purchase copies of the reprint edition at a discount for resale; and cover approval. The most important provision—no changes to what you wrote—is generally covered by the publisher’s contract with the reprint publisher and not something you typically have to worry about.

If your publisher balks at including certain provisions you request because it thinks they might limit its ability to license the book for reprint, you have three alternatives. One is to agree with the publisher and omit them from the contract. The second is to remind the publisher that if the relevant provision in fact turns out to be an impediment to signing the license, it can ask you at that time to waive the requirement, so the provisions should be left in as mandatory. The third, for the arguably problematic provisions only, is to change the operative language in the section from “the publisher shall include the following provisions in the reprint contract” to “the publisher shall use its best efforts to include the following provisions….” I’m generally a fan of the second alternative.

(Originally published in the Winter 2009 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Can someone else revise my book?

Q. The contract for my new nonfiction book has a revision clause that says that if I don’t revise the book, the publisher can choose the reviser and pay the person from amounts that would otherwise be paid to me under my contract. This seems pretty broad since it means the reviser can get everything and I could get nothing. What changes do you suggest I ask for in this section?

A. The best thing to do is substitute language saying that the book can’t be revised unless both you and the publisher agree. That way, you don’t have to worry about the issue or spend time negotiating the clause until the situation arises.

Some publishers of certain nonfiction books, especially textbooks, won’t agree to this. In that case, there are at least four changes you should make in the clause (and which most publishers are amenable to):

  1. Provide that if you are unable to do the revision (or simply don’t want to), you will have the right to choose the reviser (subject to the publisher’s consent, not to be unreasonably withheld) and determine the amount to be paid to that person. Also provide that if you are dead, your estate will have that right. This should ensure that the monies paid to the person doing the revision are reasonable and commensurate with the amount of work the person is required to do.
  2. Provide that if neither you nor the estate exercises this right, the fee paid to the reviser has to be negotiated on an arms-length basis. This could lessen the possibility that particularly favorable terms are given to a friend of the editor or publisher or to a company employee. It will also help, if you can get it, to add that the compensation paid to the reviser won’t exceed what is traditional and customary for the type of book involved and the type of revisions to be done (both, admittedly, fuzzy concepts but you get the idea).
  3. Provide that the reviser’s work will be done on a work for hire basis, with the copyright in that work to be in your name. This will facilitate your republishing your book (with another publisher or as an ebook) if the revised edition goes out of print and the rights revert to you. It is particularly appropriate since, even if the publisher pays that person an advance, that amount will ultimately be deducted from royalties and subsidiary rights income otherwise payable to you.
  4. In situations where neither you nor your estate select the reviser, limit the amount paid to that person that can be deducted from amounts otherwise payable to you, especially if the amount payable is stated as a percentage of what you would otherwise get. In particular, if the reviser will be getting royalties, limit the percentage of your royalties that can be paid. It’s okay for the percentage to increase each time a new revision is done without you, but it should never reach 100 percent or even get close to it. Remember, the book became successful enough for the publisher to want to revise and republish it because of your work on the book at the start (whether because of how it was structured, what you wrote or because of your reputation). You and your heirs should always be entitled to a percentage of every revised edition — no matter how much it changes — because of that. In my opinion, that percentage should never go below 25 percent no matter how often the book has been revised, though you may think it should be higher or lower and should use your own judgment in negotiating that.

(Originally published in the Summer 2011 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Can I Get Approval Rights for the Cover’s Design?

Q. How typical is it to get approval in a contract for the design of the book’s cover?

A. It is extremely difficult—generally nigh to impossible—to get a provision in your contract giving you approval over design of the book’s cover or dust jacket. The best way to handle this situation, in practical terms, is to be in constant touch with your editor and be aware of the production schedule for your book, especially the dates when someone will be assigned to design the cover and the deadlines for its submission, approval and printing. This will enable you to ask the editor if you can see sketches of the design, cover proofs, etc. If asked properly (i.e., not as a demand or as a matter of right), many if not most editors will allow you to see them, though some reluctantly.

To make this more than an informal arrangement, there are provisions that many publishers will insert in their contracts that will give you the right to see the design and comment on it. Though this will (properly, in my opinion) not give you the right to substitute your judgment for that of your publisher’s marketing department, it will enable you to express your viewpoint and, in most cases, to hear the design and marketing reasons for their decision. Doing this also enables the publisher to get your input and particular knowledge of a subject to avoid gaffes (e.g., the use of the color orange in a book about Ireland—unless the subject is Orangemen— or the depiction of angels with wings in a book directed to Southern Baptists).

An example of the type of clause often accepted is the following:

“Cover Consultation. Publisher agrees to show Author the sketches and designs for the Work’s cover, as well as the proofs thereof, in time for Author’s suggestions and responses to be incorporated if Publisher agrees with them. Publisher shall use its best efforts to include the same or a substantially similar clause in any license for English language reprint editions of the Work, for publication primarily in the United States, which Publisher is permitted to license under this Agreement.”

(Originally published in the Winter 2007 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s new book.