Publishing Contract Red Flags: Six Clauses to Check Before You Sign
This page is general information, not legal advice.
A publishing contract sets the terms on which a publisher produces and sells your book: which rights you grant, how you're paid, when the book comes out and how you get your rights back. It can shape your income from a book for decades, and sometimes your next books too. Publishers usually supply a standard form, and the excitement of an offer makes it tempting to sign quickly. This page covers six clauses that often work against authors. For each one you get an illustrative example, why it matters, and wording you can propose. Copyright and contract rules vary by jurisdiction, and many publishers expect authors or their agents to negotiate.
This page is for authors licensing their own work to a publisher. If you're writing a book that will appear under someone else's name, see ghostwriting contract red flags. For songs and recordings, see music licensing agreement red flags.
The example clauses below are illustrative. They are not taken from any real publisher's agreement.
1. A rights grant that covers everything, forever
A typical clause might read: "Author grants Publisher the exclusive right to publish, license and exploit the Work in all formats and media now known or later developed, in all languages, throughout the universe, for the full term of copyright, including all subsidiary, audio, dramatic, film, merchandising and electronic rights."
Why it works against you
A publisher that only prints and sells English-language books in one market may still take film, audio, translation and merchandising rights it never uses. Those rights then sit idle, or the publisher keeps a large share of any deal it does make. "Media later developed" can sweep in formats that don't exist yet. Some broad grants read close to an outright transfer. See IP assignment clauses explained, perpetual content license explained and exclusivity clauses explained.
What to ask for instead
Sample wording to propose: "Author grants Publisher the exclusive right to publish the Work in [print, ebook and audio] editions in the [language] language in [territory]. All other rights, including film, television, merchandising and translation rights, are reserved to Author. Any right Publisher has not exploited within [number] years of publication reverts to Author on request."
2. Royalties on vague "net" receipts
A typical clause might read: "Publisher shall pay Author a royalty of [X]% of Net Receipts. 'Net Receipts' means amounts actually received by Publisher less discounts, returns, distribution costs, marketing allowances and such other costs as Publisher may reasonably incur."
Why it works against you
A royalty percentage tells you little unless you know what it applies to. If "net" can be reduced by open-ended deductions, including costs the publisher decides on, your royalty can shrink without the rate changing. A large reserve against returns, held for a long time, can also delay payment. Ask for a clear definition and the right to check the publisher's records. See audit rights clauses explained.
What to ask for instead
Sample wording to propose: "Net Receipts means amounts actually received by Publisher from sales of the Work, less only returns and [listed deductions]. Any reserve against returns will not exceed [percentage] of royalties for any period and will be released within [number] accounting periods. Author may inspect Publisher's records relating to the Work once per year on reasonable notice."
3. An option or non-compete on your next books
A typical clause might read: "Author grants Publisher an exclusive option on Author's next book-length work. Author shall not submit the next work to any other publisher until Publisher has had a reasonable time to consider it. Author shall not publish any work that may compete with the Work."
Why it works against you
An option on your "next book-length work," with no limit on genre or decision time, can freeze your career while the publisher considers. A broad non-compete may stop you writing related books, articles or courses on your own subject, which can matter a great deal for nonfiction authors. See non-compete clauses explained and right of first refusal clauses explained.
What to ask for instead
Sample wording to propose: "Publisher has an option only on Author's next [genre or series] work, based on a proposal of no more than [number] pages, and must respond within [number] days. If the parties don't agree terms within [number] days after that, Author may offer the work elsewhere. The non-compete applies only to a book that directly competes with the Work on the same subject for [number] months after publication."
4. No real duty to publish
A typical clause might read: "Publisher shall publish the Work at a time and in a manner Publisher determines in its sole discretion. Publisher may decline to publish the Work if it determines that the manuscript is not acceptable."
Why it works against you
You may grant all your rights and then wait years with no publication date. "Not acceptable" without an objective standard can let the publisher walk away from a finished manuscript. Depending on the wording, it may even ask for the advance back. A kill fee or a right to keep the advance can soften that outcome. See acceptance clauses explained and kill fee clauses explained.
What to ask for instead
Sample wording to propose: "Publisher will publish the Work within [number] months after accepting the manuscript. If it does not, Author may give notice, and if the Work is not published within [number] days after notice, all rights revert to Author and Author keeps any advance paid. Publisher will give written editorial comments and a chance to revise before rejecting the manuscript."
5. Warranties and an indemnity you can't control
A typical clause might read: "Author warrants that the Work contains no material that is defamatory, infringing or otherwise unlawful, and shall indemnify Publisher against all claims, losses and legal fees arising from any alleged breach of this warranty, whether or not the claim succeeds."
Why it works against you
Authors usually do give some warranty about their own work. The problem is covering "alleged" claims that fail, claims about material the publisher added, and legal fees for a defense you don't control. A single weak claim could cost more than the advance. Ask whether the publisher carries media liability insurance and whether you're covered by it. See indemnification clauses explained and publicity rights clauses explained.
What to ask for instead
Sample wording to propose: "Author's indemnity applies only to a final judgment or a settlement Author has approved, arising from a breach of Author's warranties, and does not cover material added by Publisher. Author's total liability will not exceed [amount]. Author will be named as an insured under Publisher's media liability policy where available."
6. Rights that never come back
A typical clause might read: "The Work shall be deemed in print as long as it is available for sale in any edition, including electronic or print-on-demand editions. Publisher may terminate this Agreement at any time on notice. Author may terminate only for Publisher's uncured material breach."
Why it works against you
Out-of-print clauses are meant to return rights when a book stops selling. If an ebook or print-on-demand listing counts as "in print," the book may never go out of print, even with almost no sales, and your rights stay with a publisher that has stopped promoting it. A termination path that only the publisher can use makes the imbalance worse. See termination for convenience clauses explained.
What to ask for instead
Sample wording to propose: "The Work is out of print if Publisher's sales across all editions fall below [number] copies or [amount] in royalties in each of [two] consecutive accounting periods. Author may then request reversion, and all rights revert if Publisher does not reissue the Work within [number] months. Author may also terminate on [number] days' notice if Publisher fails to pay or account as required."
Also worth a look
Check whether the contract waives your right to be named as author or to object to changes (see moral rights waiver explained), and make sure it does not describe your book as a work made for hire. Look at how the advance is split, when royalty statements arrive, whether books can be cross-collateralized against each other, and whether the publisher can transfer the contract (see assignment clauses explained). If you're also signing marketing or sponsorship deals around the book, see sponsorship agreement red flags.
Scan your own contract free
A publishing contract can decide who controls your book long after it's released. Upload your contract to the ScanMyTerms freelance contract review as a PDF, DOCX, TXT or MD file, photograph it (up to 30 pages), or paste the terms. In about a minute you get a list of clauses that work against you, with the risk level, the exact wording, why it hurts and how to change it. The free preview shows the risk count and the first two findings. The full report is $5 per document.
This page is general information, not legal advice. Copyright, contract and publishing rules vary by jurisdiction, so for decisions about a specific contract, talk to a qualified lawyer where you live.
Sources
- All clause examples on this page are illustrative and written for this guide. They are not quoted from any real publisher's agreement.