see also Part 1 here
How does a foreign rights contract work?
The agent usually has a standard contract which she prepares and sends to both parties for signatures, so the foreign contracts you will see are generally quite similar. The key factors, of course, are the amount of the non-refundable advance and the royalty rate, generally minimum of 7-8% on foreign rights, which should be applied to the retail price.
Royalties are deducted from the advance. Once the advance is paid back, the publisher makes royalty payments. Most publishers calculate royalties following the end of each calendar year, though some do so semi-annually. Payments are due a quarter later. The contract should have a finite term, usually five years. If the book proves to be big with good longevity, it can go back on the market at the end of the term for much better terms.
One thing that is absolutely critical is that the publisher provides a computerized statement showing sales, returns, etc. via postal mail to the author for each period. If figures are provided any other way (i.e. via email), it is too easy to fudge them. The language and geographic territory licensed should be specified. And the number of complimentary books provided to the author should be specified. The agent’s commission should be identified. Another thing is to limit rights to book publishing only. Always retain all other rights or sell them for top dollar advances.
Be aware: You are dealing with international countries.
Don’t email the manuscript file until you received the advance in full. But for royalties, once the advance is paid back, it can be dicey, depending upon the quality of the agents and size of the publishers you are working with. Publishers in Asia and Eastern Europe can be more problematic, depending on their size and reputation and how they treat international copyright agreements.
Even if the publisher does comply, they send the money to the agent, who is supposed to send it on to you, so there’s an extra layer of opportunity for graft. They know that you have no leverage; who’s going to spend thousands of dollars hiring lawyers in a country halfway around the world unless there are clearly large royalties at stake? The only leverage you have is if you have an American co-agent involved because the foreign co-agent’s reputation is at stake within the international agent community. Even then, many American co-agents expect only to receive their share of the advance and spend little, if any effort to collect royalties unless they are substantial. The moral of the story: The larger and more established the agency and publisher, the better chance you have of getting paid royalties when your advance is depleted. Try to get the highest advance possible and rather lower royalties.
Before you sign the publishing contract:
Morris Rosenthal gave in his guest blogging article “Publisher Book Contracts” at Fonerbooks.com the following advice:
“Most new authors fail to retain legal counsel before signing their first book contract, and actually depend on the acquisitions editor to tell them what’s fair and normal for the publisher to request. This creates an excellent negotiating position for the publisher and a horrible one for the author. Unfortunately, publishers really take advantage.
Author advocacy organizations can be a good source for publishing contract advice, but the catch is you usually have to be a published writer before you can join. There’s nothing quite like the feeling of joining a prestigious author guild after publishing a trade book, sending them the publisher’s book contract for your next edition for free legal review, and hearing something like, “Oh, you never should have signed the first contract. Now you’re stuck with it forever.”
“The contractual relationship between the author and the publisher is based on what’s written in the signed book contract, not on implicit understandings. Even experienced authors and agents sometime make the mistake of concentrating on the money and not paying enough attention to the clauses that protect the author’s rights. All contract terms are negotiable, though acquisitions editors like to pretend they have a standard publishing contract that all their authors are happy to sign. A brief summary of standard trade publisher contract terms follows, but it’s by no means all-inclusive: I advise everyone who is looking at a contract signing to consult a lawyer.”
There are some things to watch when negotiating foreign rights deals – hopefully an agent will keep an eye on these, but it’s worth having some idea yourself:
- Term of the deal.
Five years is most common, anything longer then you should be expecting a premium from the publisher.
- Country / Territory for the contract
You might sign away Portuguese language rights without realising that it will include publication in Brazil (and Mozambique, Angola, Macau, Cape Verde etc). Also, giving worldwide Spanish language rights could cause friction with any United States publishing deal, as there is a large Spanish reading audience there.
- Tax situation in your and the potential publishers country.
While there are now many treaties which allow for uninhibited flow of monies between nations, you could be badly caught out in some cases, and lose most of your advance to a foreign government’s tax.
John Kremer has a bunch of helpful lists and reports for authors, first of all an e-book for an extensive list of foreign book agents (300+) as well as more than a thousand literary agents in the U.S. and Canada. It’s an immediately downloadable report covering 1,400 agents (with address, phone, email, website, notes on some books they’ve sold rights to, etc.). Instead of spending time researching foreign rights agents, you can order it for only $6.00, download it right away, and go to work, contacting the best agents in every country.
Foreign Book Distributors, Wholesalers, & Sales Reps — This report features more than 345 companies that provide foreign distribution or sales representation and also includes a sample of a foreign distribution contract.