Model Trade Book Contract

9.

Publication.

    1. Except as otherwise set forth in this Section 9, Publisher will, within [12/18] months following acceptance of the complete Work and Related Materials, Publish or cause publication of the Work in such formats, editions, style, and manner, under such imprint, at such cover price, and with such jacket, cover, or package as Publisher determines. Nothing herein shall require Publisher to Publish each edition permitted to be Published or licensed hereunder, subject to Section 10 (Reversion of Rights).

    1. Should Publisher fail to Publish or cause publication of the Work within such time period, Author may demand publication of the Work and thereafter may terminate this Agreement if publication still has not occurred 6 months following Publisher's receipt of such notice and retain the advance with no further obligation. Author shall provide written notice to Publisher upon the exercise of either of the above options

    Commentary

    The Authors Guild believes that authors should be able to keep the advance payments already paid if the publisher fails to publish within the time frame specified in the contract. If your contract contains language obligating you to pay back any advance payments in the event of the publisher's failure to timely publish the work, try to strike it out. You should be compensated the time and expenses you've spent in preparing a book that eventually does not get published due to no fault of yours.

    1. If Author terminates this Agreement for non-publication pursuant to this Section 9, damages recoverable by Author shall include the full amount of the Advance, including any unpaid portion as of the date of termination.

    Commentary

    Ideally, you should receive the entirety of advance agreed-upon in your contract if the publisher fails to publish the work within the contractual time-frame. You should be able to demand payment of any unpaid portions in this case.

    1. Publisher's failure to Publish or cause publication within the time period provided in this Section 9 will not be deemed to be a material breach of this Agreement (and Author shall not be entitled to any of the remedies set forth above) if the failure (i) is permitted by any provision of this Agreement; (ii) results from any business decision made by Publisher with the prior written approval of Author; or (iii) is attributable to strikes, wars, government restrictions, fires, natural disasters, acts of God, or any other cause beyond Publisher's reasonable control only for the time covered by the conditions, and in no event for more than 6 months past the original publication date. 

Commentary

Your publishing contract should specify a time frame for publication, as illustrated by Section 9(a). If it doesn't, be sure to include one, as giving the publisher free rein to publish whenever could tie up your rights indefinitely (many contracts contain the phrase "within a reasonable time," which leaves the time frame up to interpretation). Standard publishing contracts require publishers to publish the work within 12–18 months of its acceptance (with 18 being far more typical, but the Authors Guild believes 12 months is fairer). While publishers normally try to retain control over the timing of publishing each specific format of a work, whether it be print, ebook, or audiobook, it would be best to specify that the publisher must publish a physical edition of the work within this initial 12–18-month period.

 

Moreover, some authors are able to insert a firm deadline on the publication of the audiobook and foreign versions, so that if the publisher fails to produce or license an audiobook or a foreign edition within, say, two years after initial publication, the rights would revert to the author upon request (see Sections 10(a) and (b)).

 

Your contract should also contain language to determine the status of rights in the event the publisher fails to publish within the contractual time frame, as illustrated by Section 9(b). This clause provides that if the publisher fails to publish (i.e., print and distribute) the trade edition within the applicable time period, you may demand publication, after which the publisher has an additional six months to publish the work or forfeit its rights to do so. If it fails to publish within this additional grace period, the author would be able to terminate the contract, recover all rights granted, and receive the full advance (even amounts that may have been owed on publication or post-publication) without waiving the right to sue for additional damages.

 

Finally, note that many publishing contracts allow the publisher to delay publication for a certain amount of time if the delay is caused by events that are outside of the publisher's control, such as "strikes, wars, government restrictions, acts of God, or other circumstances beyond the publisher's control" (sometimes called "force majeure"). These clauses are designed to favor the publisher, but they can be made more equitable by asking for a few changes.

 

Your deadlines should also be subject to a force majeure clause (i.e., you may delay submission of your manuscript if war breaks out, a hurricane floods your house, etc.). Many publishers' standard contracts do not include a force majeure in the delivery clause so try to add one. It is wise to limit the applicable conditions to war, riots, fire, flood, and like events, not strikes or events like material shortages. The publisher should be allowed to delay publication only for the time covered by the conditions, but in no event for more than six months past the original publication date. The termination rights under Section 8(b) can be triggered for failure to comply.

 

Note regarding illustrated children's books: If the author is not delivering the illustrations, the author needs to make sure that publication cannot be delayed due to the publisher's failure to obtain the illustrations in time. In such cases, the publisher may negotiate for a longer period of time; it is common for publishers to have up to 24 months.