What Is a Book Contract?

by PAUL BROOKS

SOME years ago, I was negotiating for the publication rights of a book originally owned and published by the Commonwealth of Massachusetts. The negotiations were tedious, since state property cannot legally be sold or leased to an organization operating for private profit. At last a way was found. The governor’s legal adviser turned to me with a patient sigh. “Well,”he said wearily, “we lawyers are used to this sort of thing.”I wasn’t particularly flattered. He assumed that I was a lawyer, since he knew no more than I about the legal aspects of a book contract. No wonder. It is a very unusual sort of document.

A book contract is the record of an act of faith. It is necessarily so from both the author’s and the publisher’s point of view. The author is committing his dearest possession, his most cherished offspring, to other hands. His attitude henceforth must be not that of the mammal which suckles its young, but that of the tortoise which lays its eggs in the sand and leaves them to be batched by the heat of the sun. The publisher is also acting on faith: faith in the salability of the book, faith in the author’s future, faith — in many instances — that the book will be written. (It has been remarked, in defense of the publisher’s necessarily rapid reading of run-of-the-mill manuscripts, that one need not eat a whole egg to know whether it is rotten. But if the egg has not yet been laid, the analysis is more difficult.)

The point is that a book contract, despite its legal trappings and businesslike appearance, is not like a will or a deed or a commercial agreement under which certain things will inevitably happen or the parties will be brought to court. It involves a continuously creative process with all the uncertainty and risk that implies. Its eventual fulfillment depends on the consumer; if no one buys the book, there will be no royalties (beyond advances) and no profits. A book contract, however carefully drawn, can never guarantee results.

It can, however, serve as a memorandum of obligations and intentions. It can anticipate most of the contingencies that will arise during the publishing process. But at once we face a dilemma. A contract that tries to cover every possibility becomes an interminable and practically unreadable document; one that covers too little ground — or covers it too vaguely — invites future misunderstanding. Here publishers’ practices vary widely. Some contract forms are little more than letters of agreement. Others are as formidable as a landlord’s lease, wherein all catastrophes are anticipated, from mad dogs to overflowing bathtubs —or from smudging of original illustrations to publisher’s bankruptcy. Still others print only the barest legal skeleton, leaving every pound of flesh and blood to be filled in on the typewriter. These considerations, however, are secondary. Any author would rather have a bad contract with a good publisher than a good contract with a bad publisher.

Which is of course no excuse for a bad contract. The question of what constitutes a good or a bad contract has been and is being intelligently debated clause by clause and percentage by percentage by authors, agents, and publishers, individually and collectively. The subject can become quite involved. But the basic points of view are reasonably clear.

There are, for example, two ways of handling a piece of literary properly, just as there are two ways of handling a piece of real property, such as a house. One way is for the author (the owner) or his agent to treat the disposition of all subsidiary rights — serializations, translations, dramatizations, motion pict ures, book clubs, and so forth — as separate negotiations; that is, to rent each room individually, for as much as it will fetch. The other way, which many publishers favor, is to consider the house as a unit, on the theory that an overflowing bathtub on the second floor such as too much serialization before publication or too early syudication after may well bring down the living-room ceiling. The publisher whose contract gives him all rights is acting on the second premise.

There is a still more fundamental question: Should the parties negotiating the contract be concerned solely with the single book under discussion ? Or should the author’s whole future career come into the picture? Most book contracts are signed with the expectation that they represent a permanent relationship between author and publisher. That is why they generally include a so-called “option clause” giving the publisher first offer of the author’s next work. It is precisely at this point that the publishing process (as it is foreshadowed in the contract) enters its second phase and crosses the line between a business and a profession.

The only “businesslike” option clause is a bad one: the author agrees not only to offer the publisher his next book, but to accept certain specified royalties, advances, and so forth. In other words, he is legally bound to the publisher, though the publisher is not legally bound to him. The less businesslike and fairer form of agreement, which is now in general use, merely gives the publisher first chance to publish this future book, “on terms to be arranged,” or some similarly vague phrase. Since there is nothing to prevent a restless or discontented author from demanding fantastic terms, such an agreement is obviously no more than a memorandum. “Don’t forget,” it says to the author, “to check with your wife before you date up that girl you danced with last night.

Though the option clause may be a legally unimportant part of the contract, the relationship therein symbolized is its very guts. The author-publisher (particularly the author-editor) relationship is a professional one, at least in the dictionary sense of “not purely commercial.”It is not purely anything; it is compounded of friendship, sympathy, exasperation, patience, understanding, misunderstanding, hand-holding, prodding, rapiers, brickbats, and a solid front against the rest of the world. In short, it is based, like all sound professional relationships, on mutual confidence. A good publisherdoes not try to hold an author by legal means any more than a good doctor tries to hold a patient who is convinced that he can get better treatment somewhere else. (Not to press the parallel too far, a publisher gossiping to outsiders about the inner foibles of his authors sounds almost as bad as a doctor making table talk of his patients’ ailments.) When confidence is lacking on either side, there is every reason for a new deal.

But what of the successful author who inexplicably leaves his old publisher after years of happy association? Sometimes it is simply the greener grass on the other side of the fence. Sometimes it is the author’s conviction, when sales have slipped, that the publisher, rather than the book, must be to blame. Most often it is his feeling—usually disproved by the figures — that his book has been insufficiently advertised.

But there are more complex causes. Familiarity between publisher and author seldom breeds contempt. It can, however, lead to that subtly corrosive situation in which each partner takes the other for granted: in which the publisher acts as if the books of an established writer wrote themselves; the aulhor as if whatever he handed in should be accepted with pleasure. An editor may fail lo see the virtues of a good book with which he has been familiar since its conception. The author may be unwilling to admit the vices of a bad one, particularly when a rival publisher is ready to accept it with honeyed words for the sake of the big name and the books to come. In rare instances, such as that of Maxwell Perkins, the famous Scribner editor, and Thomas Wolfe, the editor’s contribution has been so great that the author feels compelled to prove he can do without him.

No, a book contract is not a strictly business document. None of its clauses can guarantee a happy relationship; none can substitute for the intangible element of faith, enthusiasm, or what you will. Big advances cannot assure big sales; what sane publisher will pour money into a plug because the advance is not earned? The author who relies on an advertising guarantee is similarly deceived. The stipulated caress is cold and therefore barren. Tristram Shandy’s father winds the clock the first Sunday night of every month; but ask no more of him.

Despite all this theory, the publisher in practice must be businesslike. To illustrate, may I quote a letter that I recently addressed to one of the best (and ipso facto one of the most suspicious) literary agents:—

DEAR SIR:—
I have your letter declaring that you will examine our contract with suspicion. For your guidance, it is only fair that I give you the following pointers: —
1. Our technicians at the Riverside Press have recently evolved a clever overlay under which we customarily conceal the most important clauses in our contracts. When this is later removed by the Publisher in the privacy of his closet, the contract is revealed to mean precisely the opposite to what appears on the surface.
2. A line of diamond type, appearing to the casual reader like a displaced printer’s lead (near the phrase “Heirs and Assigns”), gives the Publisher the right to pay the author in dollars Mex. or in Chinese currency, as the Publisher may determine.
3. On page four there is a paragraph written in lemon juice giving the Publisher 100% (one hundred per cent) of receipts from motion picture sales.
4. All references to advances or royalties are typed in a cheese-like emulsion attractive to mice; they invariably disappear after the contract has been for some time in our files.
Sincerely yours,