16 PUBLISHING CONTRACTS
One of the most sophisticated contracts for the sale of reproduction rights is the book publishing contract. A book of illustrations, photographs, or any art will require the negotiation of the same type of contract offered to an author. Even if an artist and author collaborate, each will usually negotiate such a contract with the publisher. If the artist and author are coauthors, it is important to enter into a collaboration agreement to avoid misunderstandings as to rights, royalties, and a myriad of other issues.
This chapter examines the standard clauses in the author’s book contract to determine how each of the provisions should be negotiated. The Authors Guild has published the Authors Guild Trade Book Contract, which recommends terms the author or artist should seek. The provisions of a collaboration agreement are also examined.
A model contract appears at the end of the chapter and its terms are referred to in the discussion of the various provisions. Any professional publishing house will have its own contract, but the terms of the model contract may be used for comparison. Also, artists are sometimes asked by nonprofessional book publishers to illustrate a book. For example, a charity or chamber of commerce might want to do a book of special local interest. If neither party has any publishing background, the model contract could be adapted for this purpose. Certain clauses, such as the subsidiary rights clause, have been eliminated because they would not pertain to this kind of venture. However, the contract covers all the areas that the artist and the other party might want to deal with in an agreement.
Many of the provisions will require negotiation, and the terms that have been filled in are only suggestions. This agreement would be considered generally favorable to the artist. For artists who wish to delve more deeply into publishing agreements, Business and Legal Forms for Authors and Self-Publishers by Tad Crawford (Allworth Press) offers helpful coverage. This book includes a collaboration agreement and negotiation checklists.
The complexity of book contracts makes the advice of an agent or lawyer especially valuable.
Grants of Rights
After setting out the names of the parties and the date, a book contract will detail the rights granted by the artist to the publisher (model agreement, Paragraph 1). “All rights” would be the transfer of all the rights possessed by the artist to the publisher. This would mean the publisher, and no one else, could exploit the work as a book or in any other medium without any limitation as to either territory or time (although it might be argued that even “all rights” only means “all publishing rights”). If, for example, the publisher wished to exploit the work on t-shirts, posters, jewelry, or dolls, the artist would not have any right to prevent such uses. Nor could the artist prevent the publisher from exploiting the material electronically, such as over the Internet or on a CD-ROM. Artists who create designs for book covers may find that the design is subsequently used for advertising or paperbacks. If the artist has not negotiated a contractual right to additional payments or reserved all rights not expressly granted, the artist may have no right to additional payments.
The grant of rights can be limited as to uses that can be made of the artwork, the time during which the work can be used in book form, and the territory in which the book can be sold. Simply specifying that the work can only be used in a book would prevent licensing applications, and specifying that the grant is non-electronic would prevent use on a CD-ROM.
The rights not conveyed in the grant of rights provision, however, might still be conveyed as subsidiary rights.
Subsidiary Rights
Subsidiary rights cover many of the uses not permitted by the grants of rights, such as abridgments, anthologies, book clubs, reprints by another publisher, first and second serializations (which are magazine rights before and after book publication), syndication, advertising, novelty uses, translation and foreign language publications, motion pictures, dramatic, radio, television, mechanical rendition or recording uses, and electronic rights. The definition of these rights can vary in different contracts.
The publisher often has the exclusive power to dispose of the subsidiary rights. The division of income between publisher and artist is specified as to each subsidiary right. Often the division of subsidiary rights income is shared equally by author and publisher. However, the terms of the Authors Guild contract suggest that only publishing rights should be granted in a publishing contract. This means that the author would not grant to the publisher any control over, or benefits from, non-publishing subsidiary rights, such as stage, record, radio, motion picture, television, audiovisual, and electronic rights. The artist might particularly seek to reserve all rights to advertising, licensing, and electronic uses. For each subsidiary right, the artist should consider demanding the power either to control the right or to veto exercises of the right by the publisher. At the least, however, the artist should receive copies of any licenses for subsidiary rights granted by the publisher.
Reservation of Rights
The grant of rights and the subsidiary rights provisions will normally cover all the conceivable uses of the artist’s work. However, the artist should anticipate un-thought of, or even un-invented, uses. This is done by insisting on a simple clause stating: “All rights not specifically granted to the publisher are reserved to the artist,” (model agreement, Paragraph 2). Just as the CD-ROM or the Internet are recent innovations, the likelihood of further inventions is great and must be anticipated in the contract. If the artist does want to allow electronic versions of the work to be published and sold, a typical royalty at the present time would be 25 percent of receipts.
Delivery of Manuscript
The contract will require the artist to deliver a manuscript on or before a specified date (model agreement, Paragraph 3). Many publishers are now requiring that computer disks also be delivered. If the contract specifies that the manuscript be in “content and form satisfactory to the publisher,” the artist should at least have the word “reasonably” inserted before “satisfactory.” A less likely solution would be to allow the publisher to reject a manuscript deemed unsatisfactory, but not allow the publisher to demand back advances given to the artist (model agreement, Paragraph 20). If the publisher has seen either completed work or work in progress, the provision should be modified to indicate such work as satisfactory. Also, the artist should have a grace period for illness and similar eventualities that may cause the work to be delivered late.
The contract may require the artist to deliver a manuscript consisting of more than just artwork. The artist may be responsible for the title page, preface or foreword, table of contents, index, charts, all permissions (including payments for such permissions), and a bibliography (model agreement, Paragraphs 4 and 5). If the artist does not supply these materials, the publisher will normally have the right to pay for them and deduct the cost from the artist’s royalties.
Royalties
The artist may sell artwork for a flat fee, in which case no royalties would be payable. However, royalties permit the artist to share in the success of the book and usually are desirable. The artist receives a royalty for each copy sold, with the royalty rate often increasing with the number of copies sold (model agreement, Paragraph 7). If the artist has done both text and art for a hardcover trade book, the royalties might be 10 percent of retail price on the first five thousand copies sold, 12.5 percent on the next five thousand copies sold and 15 percent on all copies sold in excess of ten thousand copies.
If the artist has only contributed art to the book, an arrangement that divides the royalties between artist and author is fair. The precise sharing depends on the degree of work done by each party, who originated the concept for the book, and whose name will make the book sell (if this is relevant). Because of the complexity of royalty rates and the fact that these rates vary for different categories of books, the artist should really seek expert advice from more experienced artists or agents when trying to determine whether an offered royalty is fair. It is important to ascertain which copies sold are counted for purposes of reaching the five thousand and ten thousand copy levels at which the royalty percentage escalates. While copies sold through bookstores at full price are generally counted, copies sold to book clubs or at high discounts are not likely to be counted.
Fairness, however, is not based only on the royalty percentages. The way in which the royalty is defined is very important. Basically, the royalty should always be a percentage of the publisher’s retail list price, the price at which the book will be sold to the public. If the royalty is based on net price—that is the price after discounts to wholesalers and bookstores—the royalties will be far lower than if based on retail list price. Of course, a royalty based on net price might be acceptable if the royalty percentage were roughly double the royalty rate based on retail price. This is because the discount given bookstores and book wholesalers by the publisher is usually in the 40 to 50 percent range. The royalty should not be a specific amount, such as $1 per copy, because the publisher invariably has the power to determine the selling price of the book.
Royalties will often be reduced on copies sold in digest form, in a foreign language edition, at higher than usual discounts, directly by the publisher due to the publisher’s advertising, and in other circumstances listed in each contract. The artist must consider whether each reduction is fair because of the significant effect reductions can have on royalties.
Advances
The advance is paid to the artist against royalties to be received in the future (model agreement, Paragraph 8). The artist might reasonably request an advance equal to 50 or 75 percent of the royalties anticipated during the first year of sale of the book. The advance may be paid in full at the time of signing the contract or may be paid in equal installments at the time of signing, delivery of the manuscript, and publication. The artist should always request that the advance be nonreturnable except for failure to deliver the manuscript. Also, the artist should not permit a provision that would allow the advance under one contract to be deducted from royalties earned under a contract for a different book.
Payments, Statements of Account, Inspection of Books
Payment of royalties should be made on a periodic basis, usually quarterly or semiannually (model agreement, Paragraph 10). The right of the publisher to maintain a reserve against returns—that is, to hold part of the royalties in case the books are returned by bookstores—should be limited to a small percentage of the royalties. There should also be a time period beyond which such reserved royalties cannot be held (model agreement, Paragraph 9).
The Authors Guild provision requires a statement of account showing the total sales to date and the number of copies sold for the period just ended, the list price, the rate for royalties, the amount of royalties, the handling of any reserve against returns, and information relating to licensing income (model agreement, Paragraph 9). The Authors Guild provides for the artist to examine the publisher’s books and records upon the artist’s written request (model agreement, Paragraph 11).
Duty to Publish and Keep Work in Print
The artist should ideally require the publisher to stipulate the date when the book will be published (model agreement, Paragraph 6). The Authors Guild provision requires publication within one year of delivery of the manuscript by the artist, while many other contracts specify a reasonable time or merely state that the date of publication will be at the publisher’s discretion. The artist can request a provision expressly reverting all rights to the artist if the book is not published within the stipulated period of time, unless delays are of a nature the publisher cannot avoid.
The artist should also seek to ensure that the book will be kept in print. If the publisher becomes bankrupt or insolvent or simply ceases to exploit the book by not printing copies for sale, the artist should no longer be obligated under the contract. In such an event, the artist should have the option within a certain time period (for example, sixty days) to purchase film, computer drive tapes, bound copies, and sheet stock at or below the publisher’s cost (model agreement, Paragraph 21). In order to seek a new publisher to promote the work more vigorously, the artist should receive back all rights, including any rights of copyright, which the publisher had in the work (model agreement, Paragraph 2). These provisions vary from contract to contract and often require that the artist either demand that the publisher reprint the work or give notice that the work is out-of-print, as defined in the contract.
Copyright and Suits for Infringement
The copyright should be secured in the artist’s name by the publisher (model agreement, Paragraph 12). The publisher should be required to gain copyright protection by the use of appropriate notice whenever and wherever the work will be published. To assist in this, the artist should provide the publisher with a list of all previous publications of the work submitted for use in the book.
If the copyright is infringed, the publisher can sue the infringer but is not obligated to do so (model agreement, Paragraph 19). If the publisher or artist sues alone, the other party should have to cooperate. The party bringing the suit would normally bear the costs and recoup them from any recovery. If both parties sue, the cost would be split as agreed in the contract. In either case, provision must be made for the division of amounts recovered in excess of costs. The artist should have exclusive power to sue for infringement of rights retained by the artist.
Warranty and Indemnity
The contract will require the artist to give an express warranty to the effect that the work does not infringe any copyright, violate any property rights, or contain any scandalous, libelous, or unlawful matter (model agreement, Paragraph 13). The artist must agree to indemnify the publisher against all claims, costs, expenses, and attorney’s fees. This means the artist will pay for the publisher’s expenditures caused by any breach or alleged breach. The publisher will have the right to withhold the artist’s royalties until any suit or threatened suit is settled.
The Authors Guild provision modifies the warranty by having the artist state that the work, “to Author’s knowledge,” is neither libelous nor violates privacy rights. The artist’s liability under the Author’s Guild provision is limited to the lesser of a stated amount or a percentage of the sums due the artist under the contract. Such liability exists, however, only as to final judgments for damages after all appeals have been taken, so that alleged breaches of warranty which do not result in final judgments would not make the artist liable for any of the publisher’s expenditures. If the artist defends the suit, then the artist is not liable to pay the fees of lawyers retained by the publisher. Also, the Author’s Guild limits the amount of royalties that can be withheld by the publisher to a stated percentage, in no event more than the damages claimed in any suit.
A number of leading publishers have extended their liability insurance to protect artists in the event of such lawsuits. Needless to say, this is an important advantage for the artist.
Artistic Control
Since the contract requires the publisher’s approval of or satisfaction with the work, artistic control resides in the publisher. Few publishers, if any, would agree to a provision requiring that the book be published in a form approved by the artist. The model agreement proposes consultation between publisher and artist as to title, price, promotion, production, and similar important issues (model agreement, Paragraph 14). However, unless specified otherwise, the publisher is given the final decision-making power. But the artist should insist on the opportunity to make any necessary changes in the work and should certainly seek the right to approve any changes in the work done by other people. If the artist chooses to change the work after the book is in production, he or she may be liable for part of the cost of such changes.
If an edition in the future is to be revised, the artist should have the opportunity to do any necessary revisions. If the artist cannot make such revisions, the cost of the revisions would be deducted from royalties due the artist (model agreement, Paragraph 17). But the artist should not permit any such payments to be deducted from royalties owed the artist under other contracts with the publisher. The artist can protect against losing royalties due to revisions by requiring that no revisions be made for a specified period after the signing of the contract.
The publisher will have the power to fix the book’s retail price, title, form, type, paper, and similar details. If the artist wishes to have a voice in any of these matters, an appropriate provision should be made in the contract.
Credits
The exact nature of the artist’s credit should be specified, including size and placement, especially if a writer or editor has also worked on the book (model agreement, Paragraph 12). If another person may revise the book in the future, the credit to be given such a reviser should be specified. The artist should remember that, without a provision for credit, the artist’s right to such credit may be in question and reside in the publisher’s discretion.
Original Materials
The publisher should be required to return the original artwork to the artist (model agreement, Paragraph 15). The publisher will usually not agree to either insure the work or pay if the work is damaged, although the artist might demand this if the work is of great value. The publisher should agree to try to keep the original artwork in good condition for return to the artist.
Competing Works
The publisher may try to restrict the artist from creating competing works. Such a provision can prevent the artist from creating any work on the same subject as the work to be published. The artist may not be able to agree to such a provision, especially if all the artist’s work is similar. The artist might, therefore, seek to have this provision limited to material directly based on the work to be published. Another approach would be to limit the time during which the restrictions on competing works would remain in force. Ideally, the artist should seek to have this provision stricken from the contract.
Options
Another common provision gives the publisher the option to publish the artist’s next work. Such a provision may well be unenforceable unless the terms of the future publication are made definite. In any case, the artist should insist that the option provision be deleted from the contract. If the artist and the publisher are satisfied with one another, they will want to contract for future books. If they are not satisfied, there is no reason why the artist should have to offer the next book to the publisher. If an option provision is agreed to, the artist should not give an option for more than one work and should require the publisher to make a determination with regard to that work within a reasonable time period after submission.
Another type of option clause gives the publisher the right to meet the terms offered by another publisher on a succeeding work. In any type of option clause, the publisher should be required to exercise the option based on submission of a proposal (with or without sample chapter) rather than on receipt of a full-length manuscript or completed body of work.
Free Copies
Most publication contracts will provide for the artist to receive five to ten free copies of the final book (model agreement, Paragraph 16). Additionally, provision is made for the artist to purchase unlimited copies at a substantial discount, such as 40 percent, from retail list price. The artist should be certain such a provision is contained in the contract. If the 40 percent discount provision requires the copies be used for personal purposes only, the artist should consider whether he or she might in fact want to sell the copies. And if the artist wants to buy hundreds or thousands of copies, it may very well be possible to negotiate a far higher discount than 40 percent. This is especially true if the artist places an order prior to the publisher’s printing or reprinting of the book.
Assignment
This provision usually requires the written consent of either party to an assignment by the other. Presumably the publisher would not wish to have another artist substituted under the contract, but nothing should prevent the artist from assigning to another person money due or to become due under the contract (model agreement, Paragraph 18). The publisher may also require a provision permitting assignment, especially to a new publisher that is taking over the publisher’s business.
Book agents have traditionally received 10 percent of the monies due to an author, although many agents are now asking between 12 1/2 and 15 percent. The artist’s contract with an agent may give the agent authority to act on behalf of the artist in all matters arising from the contract. If, in fact, the agent’s powers are limited, it would be wise to strike this provision and append a copy of the artist-agent contract to the publishing contract. Also, the artist should always have the right to receive payment directly from the publisher for a minimum of 90 percent (or 85 percent if the fee is 15 percent) of sums due, if the artist wants direct payment once the artist-agent contract has terminated. This can be accomplished by the use of a clause to the effect that “The authorization of the agent to act on behalf of the artist and to collect sums due the artist shall continue in effect until the publisher shall otherwise be instructed in writing by the artist.” The exact language of the agency clause will have to be negotiated in the artist-agent contract.
Advertising
Some artists who create books that are potentially very profitable to publishers may be able to require the designation of an advertising budget. If this is done, the budget should be expendable only for the single title, not group ads including other titles. A further breakdown into the categories of advertising is difficult prior to publication, although in special cases it may be possible to pinpoint markets in which advertising should later take place. The artist risks limiting the publisher’s flexibility, however, and perhaps also having the publisher cease advertising once the stipulated amount has been expended. The more usual approach is to request the highest possible advance, and leave the publisher to its own ingenuity with respect to advertising and promotion.
Most contracts require that the artist allow the publisher to use the artist’s name, likeness, or photograph in advertising and promotion for the work. This clause is desirable, but the artist might want an assurance that suitable decorum will be maintained.
Arbitration
The artist will generally benefit from an arbitration provision, because disputes under the contract can be quickly and easily resolved. Many contracts will provide for arbitration before the American Arbitration Association, but the artist should be satisfied as long as unbiased arbitrators will hear the dispute. The disadvantage of arbitration is that an arbitrator’s adverse decision is very difficult to appeal to the courts, so the artist should feel certain the arbitration will be fairly conducted.
Other Provisions
The contract will require that modifications be in writing (model agreement, Paragraph 23). The state’s laws that will govern the contract should be specified. The contract will state that heirs, legal representatives, successors, and assigns are bound by its terms (model agreement, Paragraph 18). Waivers or defaults under one provision will usually be restricted, so as neither to permit future waivers or defaults nor to affect obligations under other provisions of the contract (model agreement, Paragraph 24).
Collaborators
The artist may collaborate with another artist, a writer, an editor, a technical expert, or a well-known person. In some cases collaboration may be with someone the artist never meets, but who merely contributes material for the book. In any case, the artist and any collaborator must have a contract between them that divides up all the rights (especially the rights to control and receive income) contained in the publishing contract. In the absence of a provision giving control over uses of the work to one party, all collaborators will normally have the power to authorize nonexclusive licenses and the income will be shared among the collaborators.
The collaboration contract must include a method for resolving disputes, such as a disagreement over publishers to which the completed work will be submitted. Thought must be given to what will happen if one party becomes disabled or dies during the collaboration. Artistic control, and an orderly plan to complete the work, must be determined. Authorship credit will require elaboration. It must be decided who will own the copyright and what the form of copyright notice will be. If each collaborator can sell his or her interest in the work, the other parties may wish a right to have first opportunity to purchase the interest on the same terms being offered by outsiders.
Consideration should also be given to whether the collaborators should have a separate or a joint contract with the publisher. For example, is the artist to be liable for breaches of a warranty by a collaborator? These and similar questions will depend on the contractual relationship of the collaborators to one another and the publisher. And, if the collaboration fails to reach fruition, a determination must have been made as to the rights each collaborator will have in the incomplete work.
Model Publishing Agreement
Agreement, entered into as of this ______ day of ____________, 20___, between ______________________________, residing at ____________________________________________________ (hereinafter referred to as the “Publisher”), and __________________________________, residing at ____________________________________________ (hereinafter referred to as the “Artist”).
Whereas, the Artist wishes to create a book on the subject of ______________________________;
Whereas, the Publisher is familiar with the work of the Artist and wishes to distribute such a book; and
Whereas, the parties wish to have said distribution performed subject to the mutual obligations, covenants, and conditions herein.
Now, therefore, in consideration of the foregoing premises and the mutual covenants hereinafter set forth and other valuable considerations, the parties hereto agree as follows:
1. Grant of Rights. The Artist grants, conveys and transfers to the Publisher in that certain unpublished work titled _________________________________, the following rights: [Exclusive North American rights in hardcover book form in the English language for a period of five years would be one example of a possible—although unusually restrictive—grant of rights.]
2. Reservation and Reversion of Rights. All rights not specifically granted to the Publisher are reserved to the Artist, including but not limited to electronic rights. In the event of termination of the Agreement, the Publisher shall grant, convey, and transfer all rights in the work back to the Artist.
3. Delivery of Manuscript. On or before the ________ day of ___________, 20______, the Artist shall deliver to the Publisher a complete manuscript of approximately _______ words and including the additional materials listed in Paragraph 4. If the Artist fails to deliver the complete manuscript within ninety days after receiving notice from the Publisher of failure to deliver on time, the Publisher shall have the right to terminate this Agreement and receive back from the artist all monies advanced to the Artist pursuant to Paragraphs 4, 5, and 8.
4. Additional Materials. The following materials shall be provided by the Artist: (photographs, drawings, maps, tables, charts, index, other illustrations, described more fully as follows _______________________.) The cost of providing these additional materials shall be borne by the Artist, provided, however, that the Publisher at the time of signing this Agreement shall give a non-refundable and non-recoupable payment of $_____________ to assist the Artist in defraying these costs.
5. Permissions. The Artist agrees to obtain all permissions that are necessary for the use of materials copyrighted by others. The cost of providing these permissions shall be borne by the Artist, provided, however, that the Publisher at the time of signing this Agreement shall give a nonrefundable and non-recoupable payment of $_______ to assist the Artist in defraying these costs.
6. Duty to Publish. The Publisher shall publish the book within twelve months of the delivery of the complete manuscript. Failure to so publish shall give the Artist the right to terminate this Agreement ninety days after giving written notice to the Publisher of the failure to make timely publication. In the event of such termination, the Artist shall have no obligation to return monies received pursuant to Paragraphs 4, 5, and 8.
7. Royalties. The Publisher shall pay the Artist the following royalties: 10 percent of retail price on the first five thousand copies sold; 12 1/2 percent of retail price on the next five thousand copies sold; and 15 percent of retail price on all copies sold thereafter.
8. Advances. The Publisher shall, at the time of signing this Agreement, pay to the Artist a nonrefundable advance of $_________, which advance shall be recouped by the Publisher from payments due to the Artist pursuant to Paragraph 10 of this Agreement.
9. Accountings. The Publisher shall render quarterly reports to the Artist showing for that quarter and cumulatively to date the number of copies printed and bound, the number of copies sold, the number of copies returned, the number of copies distributed free for publicity purposes, the number of copies remaindered, destroyed, or lost, and the royalties paid to and owed to the Artist. If the Publisher sets up a reserve against returns of books, the reserve may be set up only for the four accounting periods following the first publication of the book and shall in no event exceed 15 percent of royalties due to the Artist in any period.
10. Payments. The Publisher shall pay the Artist all monies due Artist pursuant to Paragraph 9 within thirty days of the close of each quarterly period.
11. Right of Inspection. The Artist shall, upon the giving of written notice, have the right to inspect the Publisher’s books of account to verify the quarterly accountings. If errors in any such accounting are found to be to the Artist’s disadvantage and represent more than 5 percent of the payment to the Artist pursuant to the said accounting, the cost of inspection shall be paid by the Publisher.
12. Copyright and Authorship Credit. The Publisher shall, as an express condition of receiving the grant of rights specified in Paragraph 1, take the necessary steps to register the copyright on behalf of the Artist and in the Artist’s name and shall place copyright notice in the Artist’s name on all copies of the book. The Artist shall receive authorship credit as follows: _____________________________.
13. Warranty and Indemnity. The Artist warrants and represents that he or she is the sole creator of the book and owns all rights granted under this Agreement, that the book is an original creation and has not previously been published [indicate any parts that have been previously published], that the book does not infringe any other person’s copyrights or rights of literary property, nor, to his or her knowledge, does it violate the rights of privacy of, or libel, other persons. The Artist agrees to indemnify the Publisher against any final judgment for damages (after all appeals have been exhausted) in any lawsuit based on an actual breach of the foregoing warranties. In addition, the Artist shall pay the Publisher’s reasonable costs and attorney’s fees incurred in defending such a lawsuit, unless the Artist chooses to retain his or her own attorney to defend such lawsuit. The Artist makes no warranties and shall have no obligation to indemnify the Publisher with respect to materials inserted in the book at the Publisher’s request. Notwithstanding any of the foregoing, in no event shall the Artist’s liability under this Paragraph exceed $________ or ________ percent of sums payable to Artist under this Agreement, whichever is the lesser. In the event a lawsuit is brought which may result in the Artist having breached his or her warranties under this Paragraph, the Publisher shall have the right to withhold and place in an escrow account ______ percent of sums payable to the Artist pursuant to Paragraph 10, but in no event may said withholding exceed the damages alleged in the complaint.
14. Artistic Control. The Artist and Publisher shall consult with one another with respect to the title of the book, the price of the book, the method and means of advertising and selling the book, the number and destination of free copies, the number of copies to be printed, the method of printing and other publishing processes, the exact date of publication, the form, style, size, type, paper to be used, and like details, how long the plates or type shall be preserved and when they shall be destroyed, and when new printings of the book shall be made. In the event of disagreement after consultation, the Publisher shall have final power of decision over all the foregoing matters except the following, which shall be controlled by the Artist: ______________. No changes shall be made in the complete manuscript of the book by persons other than the Artist, unless the Artist consents to such changes.
15. Original Materials. Within thirty days after publication, the Publisher shall return the original manuscript and all additional materials to the Artist. The Publisher shall provide the Artist with a copy of the page proofs, if the Artist requests them prior to the date of publication.
16. Free Copies. The Artist shall receive ten free copies of the book, after which the Artist shall have the right to purchase additional copies at a 40 percent discount from the retail price.
17. Revisions. The Artist agrees to revise the book on request by the Publisher. If the Artist cannot revise the book or refuses to do so absent good cause, the Publisher shall have the right to have the book revised by a person competent to do so and shall charge the costs of said revision against payments due the Artist under Paragraph 10.
18. Successors and Assigns. This Agreement may not be assigned by either party without the written consent of the other party hereto. The Artist, however, shall retain the right to assign payments due hereunder without obtaining the Publisher’s consent. This Agreement shall be binding on the parties and their respective heirs, administrators, successors, and assigns.
19. Infringement. In the event of an infringement of the rights granted under this Agreement to the Publisher, the Publisher and Artist shall have the right to sue jointly for the infringement and, after deducting the expenses of bringing suit, to share equally in any recovery. If either party chooses not to join in the suit, the other party may proceed and, after deducting all the expenses of bringing the suit, any recovery shall be shared equally between the parties.
20. Termination. The Artist shall have the right to terminate this Agreement by written notice if: (1) the book goes out-of-print and the Publisher, within ninety days of receiving notice from the Artist that the book is out-of-print, does not place the book in print again; (2) if the Publisher fails to provide statements of account pursuant to Paragraph 9; (3) if the Publisher fails to make payments pursuant to Paragraph 10; or (4) if the Publisher fails to publish in a timely manner pursuant to Paragraph 6. The Publisher shall have the right to terminate this Agreement as follows: (1) as provided in Paragraph 3, if the Artist fails to deliver a complete manuscript; and (2) if the complete manuscript delivered pursuant to Paragraph 3 is unsatisfactory to the Publisher, but in the event of such termination the Publisher shall have no right to receive back monies paid to the Artist pursuant to Paragraphs 4, 5, and 8. This Agreement shall automatically terminate in the event of the Publisher’s insolvency, bankruptcy, or assignment of assets for the benefit of creditors.
21. Production Materials and Unbound Copies. Upon any termination, the Artist may, within sixty days of notification of such termination, purchase the plates, offset negatives or computer drive tapes (if any) at their scrap value and any remaining copies at cost.
22. Notice. Where written notice is required hereunder, it may be given by use of first class mail addressed to the Artist or Publisher at the addresses given at the beginning of this Agreement. Said addresses for notice may be changed by giving written notice of any new address to the other party.
23. Modifications in Writing. All modifications of this Agreement must be in writing and signed by both parties.
24. Waivers and Defaults. Any waiver of a breach or default hereunder shall not be deemed a waiver of a subsequent breach or default of either the same provision or any other provision of this Agreement.
25. Governing Law. This agreement shall be governed by the laws of ________________ State.