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 my publisher cheat me of my royalties by selling my book through its subsidiaries?

Q. Royalties on two textbooks I wrote are being watered down because my 1980s contracts didn’t anticipate sales of e-textbooks or rentals of my textbooks in regular and digital formats. More importantly, the contracts didn’t anticipate that my publisher would own or control the companies that handle its digital and rental copies. As a result, my royalties are calculated based on the revenue my publisher receives from these captive companies rather than the larger amount those companies received from the students who bought the book. How can I avoid this outrageous situation in the future?

A. Presumably you and other authors entitled to royalties from the same publisher have banded together to hire a good lawyer to deal with the existing publisher. Although I’m not a litigator, I believe the courts would frown on shenanigans like that. You should also consider publicizing the situation without omitting the name of the offending publisher(s). Even if a court finds the practice legal, in my opinion it’s clearly unethical. Good reputations are important to textbook publishers, and if they can be embarrassed by accurate recitations of the facts and circumstances, publicity is certainly a weapon to brandish.

As to your future contracts, here are two versions of the type of clause you’ll want to include.

The first is one that authors should already be including in all their contracts and isn’t specific to e-books or electronic rights, viz.,

Except as otherwise specifically provided in this Agreement, any license granted, or copies of any version of the Work sold or rented, by Publisher under this Agreement to an Affiliate shall be granted, sold or rented on financial and other terms which are no less favorable to Publisher than the terms upon which Publisher would have granted such license, or sold or rented such copies, to an unrelated or unaffiliated person or entity.

Even better would be adding “in an arms-length transaction and” after “rented” but many publishers won’t agree to that.

The second, which has the benefit of being more specific and eliminates the question implicit in the prior one of what terms are “no less favorable,” would be:

For purposes of the provisions in this Agreement providing for payments by Publisher to Author (as royalties or otherwise) computed based on amounts received by Publisher, those amounts shall instead be computed based on amounts received by the relevant Affiliate of Publisher in those situations where Publisher has directly or indirectly provided the relevant version of the Work to an Affiliate (by sale or otherwise) and the amount received by the Affiliate from its customer or the end user is greater than that received by Publisher from such Affiliate.

If using this version, a similar paragraph should be added to cover subsidiary rights licenses, where the author’s share is a specified percentage (never less than 50 percent) of what the publisher – or its affiliate — gets from the ultimate licensee.

In either case, the following definitions should be included in the contract:

As used herein, “Affiliate” means a Person that directly or indirectly, through one or more intermediaries or otherwise, controls, or is controlled by, or is in or under common control with, Publisher. “Person” includes any individual, firm, division, corporation, limited liability company, joint venture, partnership, trust or other unincorporated organization or association or other enterprise.

Before using either of the two suggested clauses, of course, you should check with your own lawyer to make sure it interfaces correctly with the other provisions in the publisher’s proposed contract and does what you intend.

(Originally published in the Spring 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.