How to Read a Book Contract – How Long Does It Last?

One of the standard provisions in almost every type of business contract is one that is sometimes titled, “Term and Termination.”

The Term part says how long the contract will last. One year, three years, etc.

The Termination part provides for ways that one or both of the parties can end the contract before its term is complete. Termination can include provisions that allow a party to terminate if the other party violates a material provision of the contract or it may simply give one or both parties the option to end the contract after a notice of so many days.

In a typical business contract, these are usually brief and very straightforward. Usually, there are no gotchas here.

When I first started looking at publishing contracts, I was surprised at the absence of any short and sweet termination provisions and few had any set term. Often, the publisher could terminate the contract or simply let the book wither on the vine, but the idea that, if the book was published, an author could terminate a publishing contract after five or ten years was nowhere to be found.

A bit of internet research discloses sample contracts or clauses or checklists on the websites of attorneys who regularly deal with publishing contracts that show the same thing – the author doesn’t get to terminate after a specific period of time or unless the publisher goes bankrupt or allows the book to go out of print (lots of murkiness here).

Let’s remind everyone how long a copyright lasts in the United States. Generally speaking, a copyright lasts for the life of the author plus 70 years.

Passive Guy has dealt with many different types of contracts during his legal and business career, but never had one that lasted for 50 or 75 or 100 years or more. Real estate mortgages of 30 years were the longest contracts he saw by far.

PG would bet you could comb through the contracts files of many Fortune 500 companies without finding a 100 year contract. Why does a publisher need a 100 year contract for a book?

PG would also bet that if he spoke with an ancient publishing lawyer, that lawyer would tell him the tradition of life of the copyright terms for publishing contracts began before 1964, when the length of a copyright in the U.S. was 28 years. During that period, if anyone remembered to renew the copyright, it could be extended for another 28 years, otherwise it expired. 28 years is still a long time, but it’s not as weird as 100 years.

100 years is not slavery, but it’s not right either. What the current publishing standard means is that a 21-year-old author who signs a book contract will have to live with that contract every day, every year, for the rest of his life. He may hate his publisher, but when he’s teetering about in his 90′s, he’ll still have that book contract strapped to his back.

The law provides for statutes of limitations for nearly every sort of crime except murder. If I take a gun and rob a gas station when I’m 21, after 7 years or 10 years (the statute of limitations varies by state and the federal government has its own), I can’t be prosecuted for that crime any more even if I admit to committing the crime. However, if I don’t commit a crime and instead sign a publishing contract, I’m never free of it again.

So, here’s Passive Guy’s modest proposal for upsetting the publishing apple cart – a maximum ten-year term for all publishing contracts.

If the publisher can’t cover its costs and make a reasonable profit within ten years, either the book or publisher are defective. The publisher and author can always come to an agreement to extend the publishing contract for longer if they want to do so.

Oh, and ten years is probably more time than you would serve for armed robbery if it was your first offense.

PG would be remiss in his rabble-rousing if he ended his discussion with a frontal assault demanding a term for a publishing contract that was in the same universe as nearly every other class of business agreement.

We have previously discussed a minimum wage for authors contract provision here and here. It’s easy to focus on the dollar amount in such clauses and how they could guarantee a reliable stream of payments to an author. However, they also serve another important purpose. For 99.99% of books written, such a clause will cause a publishing contract to terminate well before the life of the author plus 70 years.

For those of you who are climbing a learning curve about how various parts of a contract can work together to accomplish the goals of one of the parties, most attorneys would not include a minimum wage for authors provision in a section of a contract entitled “Term and Termination.” Someone glancing through an unfamiliar contract looking for ways the contract might be terminated could potentially overlook the minimum wage clause as the most likely cause of termination.

The immense length of a “life of the copyright” publishing contract raises another issue Passive Guy will discuss in a future post – the effect of inflation on contracts and what one might do about that issue.

Contracts, Passive Guy