Two Red-Flag Sentences in Publishing Contracts

Posted by Victoria Strauss for Writer Beware

A publishing contract just came across my desk for evaluation. From a publisher that sometimes charges fees (but didn't in this case), it's a pretty poor contract--just two pages long, because it's missing a lot of important language: nothing to indicate when the contract term starts to run (on publication? on signing?), no editing clause, a claim on subsidiary rights with no breakout of the rights claimed, no copyright notice requirement, the same royalty rate for all formats including ebooks...the list goes on.

As if that weren't bad enough, it also includes two provisions that, even in contracts that are more professional and complete than this one, can be red-flag warnings.
Promotion and publicity shall be at Publisher’s election and discretion as to the character, scope and extent thereof.
With this or similar language, the publisher may be trying to convince you that it actively promotes and publicizes its books (because of course you want that from a publisher), while ensuring that it can blow off your dissatisfaction when it turns out to do little or nothing. "It says right in the contract that publicity is at our discretion," it may tell you when you ask it to explain why its sole marketing strategy is a poorly-written press release sent to a list of people you provided. "We didn't promise anything else."

Now, this kind of language isn't always a sign of a deadbeat publisher. You can also find it in contracts from quite decent publishers, which simply want to emphasize that marketing is under their control. But many deadbeat publishers do use it as a get-out-of-jail-free card--so where you encounter it, you're well-advised to find out for yourself whether the publisher really does provide marketing support for its books.
It is further understood that Publisher has not guaranteed the sale of any specific number of copies of the said Work, or receipts from any source.
This is a sentence you will not find in the contract of a reputable, professional publisher. Quite simply, it's advance justification for failure--another way for the publisher to both justify and dismiss poor performance. It's an almost certain marker for little or no promotion and tiny sales. Vanity publishers frequently include it in their contracts, as do amateur publishers that have no clue what they're doing.

For more on assessing publishing contracts, see my recent post: Evaluating Publishing Contracts: Six Ways You May Be Sabotaging Yourself.

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