A bad clause in a contract is not just about bad or poor terms. Vagueness and ambiguity can be a problem too and often cause difficulties at a later stage.
Clarifiers are the terms that make the contract more transparent and easier to understand.
The Society of Authors lobbies for clarity in contracts through our CREATOR campaign for fairer and more transparent contracts.
The role of the Clarifier in this is to set out the exact scope of the rights you are granting in your work. Here are some examples.
Grant of rights
The grant of rights will usually be located somewhere near the top of your contract.
Copyright laws prevent anyone from using your work without your consent, and a so-called grant of rights clause sets out what the contracting publisher or producer has your permission to do.
In an ideal world (especially in film agreements) this would be accompanied by a sentence or two that cover the rights that are reserved, outlining what a publisher can’t do with your work.
However, you don’t see that in publishing contracts, which means that you need the contract to state clearly and precisely the rights are that you’re granting.
For example, does a reference to ‘volume form’ clarify whether it refers only to the print edition of a book, or does it extend to digital or enhanced editions? This would be a crucial point if you were only intending to grant print rights to your publisher.
If you are being paid an advance for your book, it is likely that this will be paid in instalments, with a share paid on signing the contract, an additional payment on delivery of the work to the publisher.
If the wording is left vague on this second payment, the publisher will potentially be able to delay making this payment to you on the basis that they have not yet accepted the work.
We would prefer to see a clause that specified not only that a second payment will be made on delivery of an acceptable manuscript, but also which clarifies that an acceptable manuscript is one that meets the specifications agreed when the work was contracted.
Some advances are payable on publication, which potentially leaves you (and your income) at the whim of the publisher’s workflows and schedules. A suitable clarifier in this instance would highlight that the payment will be made ‘on publication or no later than [DATE]’ in order to protect you if publication is delayed.
now it is often unclear from the grant of rights
wording and this is moving on to the third example
that we discussed above are you where a publisher
takes your permission to publish your work
in print volume form for example the extent
to which if any the publisher will be able
to edit or amend your original work or your
original text you may want to ensure additional
wording is introduced into the contract if
not in there already to clarify the position
for example it could be clarified that whilst the
publisher will be permitted to copy edit the work
within all the usual industry parameters any
more material changes should be subject to the
consent of the author moving on to the fourth
example and then we come to publication or if
we revisit that creator acronym we mentioned
earlier e for exploitation that is exploitation
of the rights granted it is very common that
a publisher will commit to publish your work
if the publisher agrees to publish x
months from delivery and acceptance
then you are coming across the same
issues that i mentioned previously
there could be delays unless the publisher agrees
to accept the work within a specified period a
publisher should really agree to publish within x
months from delivery of the acceptable manuscript
ideally you would also have a form specified here
for example the publisher will publish the work
in print volume electronic and audiobook format
within x months however speaking realistically
this remains relatively rare you are however
advised to ask the publisher to give you a clear
indication prior to entering into a contract as to
how that publisher intends to publish that is in
what forms and and on what schedule and just one
final example under this category of clarifiers
a publishing contract will almost always include a
clause that lays out the circumstances under which
you will be able to get your rights back you will
be surprised by how many contracts still refer to
this right arising where a work is out of print
without any further definition of what that means
you will almost certainly need further
clarification there’s a work will be
considered out of print where the publisher’s
stock has diminished significantly and they have
no interest in arranging a reprint otherwise a
publisher may probably with some justification
argue that work remains in print even
where they are no longer reprinting the
work that simply have it available on a print
order or a so-called print-on-demand basis
if challenged on this a publisher may well be
more amenable to agreeing a sales threshold
so that if the work is only available on a
pod print on demand or ebook basis i.e if the
publisher is not holding hard copy stock then the
author will have a right to request a reversion
if sales dip below that threshold and the
publisher fails to revive those sales on notice
our view quite simply is that print-on-demand
publishing is still a very different beast
to traditional publishing and so that for
contracts that are entered into on that basis
i.e on the basis that a publisher will
be committing to a print run and holding
stock in their warehouse um any print-on-demand
publishing should need the approval of the author
and the work would not be considered imprints for
the purpose of an out of print reversion right