Negotiating Your Publication Agreement

Negotiating your publication agreement can seem like an unnecessary stress.  Why even do it?  An author has already invested significant time in research, writing, submission, then negotiating the peer review process, revisions and responses.  Now — so close to the finish line — most authors just want the process to be over, and the article or book to be published.

But now is also the time when the author’s bargaining power is greatest.  The publisher, too, has made an investment in this work: Staff time, editorial board review, requests to peer reviewers who would certainly be disappointed if their own efforts bore no fruit, perhaps even time already spent on layout and composition. The publisher has an investment in this work, and wants to see it published.

So this is the moment when the author has power to negotiate their terms.  Back-and-forth negotiations on a contract are typically done by (a) striking out offensive clauses or language (such as indemnification clauses, copyright transfer clauses), (b) adding in important clauses (retention of rights, assertion of additional rights such as the right of attribution), or (c) appending addendums that retain specific rights (such as the SPARC Author’s Addendum).

Why should you both with the negotiation? Because, plain and simply, contracting is intended to be a process of negotiation. The contract that the publisher will present to you will represent what they want: It’s a proposal, their proposal, and you should treat it as such. If you don’t bargain, you are giving them exactly what they want — and not representing your own interests at all.  We negotiate and bargain when we sell or buy property (especially real estate), offer or accept employment, and arrange for services.   Publishing your research also involves benefits and risks on both sides, and it makes just as much sense to negotiate in these circumstances as in any of the others.

This is the process:

First, what do you want to be able to do with your work? You want it published, sure, but what else do you want?  Do you want to be able to teach with your work?  Do you want others to teach with it?  Do you want the widest possible distribution?   If it’s a book, do you want royalties?  Do you want to be able to re-use it in your own works–edit it, revise it, re-publish it?  Will you want to include it as a chapter in a later collection of your own writings, or a contribution in an edited collection elsewhere?

Second, what legal rights does the publisher need to publish your work?  They need the right (the license) to publish, distribute, make editorial changes.  They will certainly benefit from the right to re-publish your work in other formats as well, include your work in new versions of their content, and so forth.  They may want the right to translate your work into other languages, or adapt your work into other formats — a screenplay or movie treatment, maybe!  Or an electronic or print version.  They do not need to have the copyright assigned to them to do any of these things.  And you need to decide what rights they want, that you would want to reserve for yourself.

Third, what legal rights is the publisher asking for in the contract?  Here is where you see what the contract has to say about the things you want, and the things they are asking for.  But you will also see a lot of other things — like choice-of-law clauses, arbitration clauses, indemnification clauses — that you perhaps have never thought about.

And fourth, negotiate the language in the contract so that it represents what you want — not just what the publisher wants.  Now you begin to strike language that you don’t want (just cross it out), insert language you do want, cross-over and replace, and/or add an addendum to the end.  If you can get it the way you want, sign it, make a copy for yourself, and send it back — if they accept it, then your amended version is the contract.  If the contract is so complex that you can’t easily amend it, then send it back with a letter stating your objections, and/or a proposed alternate contract.

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