This excerpt about negotiating book contracts comes from the newly released Fourth Edition of The Writer’s Legal Guide by Kay Murray and Tad Crawford. The excerpt, from Chapter 10, is brief in relation to the detailed advice offered in that chapter.
The short-term end product of a negotiation is the written contract embodying your agreement. The long-term result, of course, is your ongoing relationship with the other party over the course of the agreement – which, in a book publishing deal could last a lifetime, or even longer. When it comes to licensing the rights to your work, therefore, the stakes are high.
First, and foremost, remember that you must live with the contract you sign. Many written contracts state outright that the terms expressed in the agreement set forth the entirety of the parties’ intentions with respect to the subject matter of the agreement, and that no promises made during the negotiations will be enforced unless they appear in the final contract. Even if a contract does not contain such a “merger clause,” courts will interpret most contracts to provide the same thing. Keep in mind, therefore, that if any of your publisher’s promises are not set forth in your contract, they are worthless.
Most established book authors have literary agents who will negotiate the terms of book and other licenses on their clients’ behalf, but that does not make you a passive participant in the negotiation. Whether or not have you an agent, you should learn some basic negotiation rules. There is much literature covering the art and science of negotiating available, free online and in many books and journals. Take the time to review some of this advice before engaging in direct negotiations; it will prove a very good investment of your time. Although the advice below refers to book publishing contracts, it applies to any other deal you might negotiate, including with a literary agent, periodical publisher, self-publishing entity, or a collaborator.
To negotiate effectively, you must plan. The more you plan, gather information, and strategize, the better your chances of getting the best possible deal. Negotiation consists of trading concessions with the other side on the various terms of a transaction, and the better you understand and can rank both your own and the other side’s priorities, the better you will understand how to make and receive concessions that effectively satisfy both sides’ desires – the ideal outcome.