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What's in a Publishing Contract? Transcript

 

Recording of 'What's in a Publishing Contract'

 

What's in a Publishing Contract? was held on 23 October 2021. You can watch the virtual talk above and access the full transcript of the programme on this page. Portions of the transcript have been edited for clarity. 

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About What's in a Publishing Contract? 

What should an author expect to see in a publishing contract? To share their knowledge and practices, independent publishers Ethos Books (SG) and Gaudy Boy (NYC) explain and field questions about the terms and terminology in their standard contracts.

Join Ng Kah Gay (Publisher, Ethos Books), Kimberley Lim (Managing Editor, Gaudy Boy) and Jerrold Yam (Poet/Lawyer) in conversation, moderated by Jee Leong Koh (Publisher, Gaudy Boy). 


Quick Links: 

Introduction

  1. Introduction to a General Publishing Contract by Ethos Books
  2. Introduction to a General Publishing Contract by Gaudy Boy
  3. Approaching the publishing contract as an author

Q&A

  1. What does a fair contract look like for both the author and the publisher?
  2. Can an author publish the manuscript with another publisher after they have signed a contract?
  3. What happens if a publisher folds? Do the rights revert to the author? Is it necessary to stipulate that in the contract?
  4. How do publishers go about selling foreign rights?
  5. What if the publisher disagrees with me reserving my right to publish my work in other languages or countries for example, or when I want to adapt my work in another form?
  6. What would you consider a fair rate of payment an author can ask for? Is there a standardised way of measuring the amount of money each manuscript is worth, for example the number of pages?
  7. If I sign publishing rights to a publisher on the book about cats, to what extent can I still write about cats. How different would new content have to be, what has to be considered?
  8. Are authors always paid advances? What is your practice?
  9. What are your standard royalties and how are they split between publisher and author?
  10. Regarding projects that require many photographs such as a book on architecture or cooking, is it standard for a publisher to ask the author to pay for all the costs?
  11. How are print runs decided and do they vary across genres?
  12. What are fair marketing and promotional terms in the contract?
  13. If an author reads from their book at an event not affiliated with the book’s marketing plan, is there a reading fee? And is this covered in the contract?
  14. If the author wishes to be published under a pen name, will the contract be made under a pen name or the author’s real name?
  15. What are your standard indemnity clauses and why do you have such clauses?
  16. What is the timeline between signing a contract and releasing the book?
  17. Are authors supposed to pay a publishing house for publishing their work?

 

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Jee Leong: Hi everyone, welcome to this event, What’s In A Publishing Contract, co-organised by Ethos Books and Gaudy Boy. My name is Koh Jee Leong, I’m the publisher and the Editor-in-Chief of Gaudy Boy and your moderator for this event. Please be aware that this event is being recorded, and will be made available online afterwards.

Established in 1997, Ethos Books is an independent publisher of literary fiction, non-fiction and poetry based in Singapore. Gaudy Boy is the publishing arm of New York City-based literary non-profit Singapore Unbound. Established in 2018, Gaudy Boy publishes poetry, fiction and literary non-fiction in English and in translation by writers of Asian heritage residing anywhere in the world.

Our panellists tonight are Ng Kah Gay, the publisher of Ethos Books, Kimberley Lim, the managing editor of Gaudy Boy, and the Singaporean poet and lawyer Jerrold Yam. We want to thank them so much for actually joining us for this event tonight.

Ethos Books and Gaudy Boy are holding this event because we realise that there is a basic lack of information for Singaporean authors about publishing contracts. In fact, new authors may not even know that they should have a contract before turning over their work to publishers. Ethos Books and Gaudy Boy are thus holding this event as a form of service to the literary community in Singapore, in the hope of informing authors such as yourselves, sharing best practices with one another, and listening to your questions and feedback for our own continuous improvement. We certainly do not believe that what we have right now or will share tonight is perfect. But we do want to share our current thinking and practice about publishing contracts with you in order to initiate a larger conversation about the professionalisation of the publishing industry in Singapore.

For us, good publishing practices are not only good for the publisher and the author but also good for the entire literary ecosystem. Publishing contracts are private legal documents between the publisher, the legal owner of the press, and the author, the legal owner of your work. Because publishing contracts are private, we won’t be sharing specific contracts, but rather a standard contract that we use. Actual contracts differ slightly for different authors, partly because contracts are the result of negotiations between publishers and authors. The key idea here is that contracts can be negotiated. The first offer by your publisher is not set in stone. An author can ask for more favourable terms if they bring more to the table, for example a better work, or a greater following.

As Kah Gay and Kim share about their standard publishing contracts, you will notice differences in the thinking behind the contracts and the language used in the contracts. This is to be expected. The two presses have very different publishing goals and programmes. Ethos Books publishes 7-10 books in a year, whereas Gaudy Boy publishes only 3-4 books in a year. They have different publishing histories: Ethos Books was established in 1997, whereas Gaudy Boy was established in 2018. They are run differently. Ethos Books is an imprint of Pagesetters, which is a commercial entity, whereas Gaudy Boy is run by unpaid volunteers who receive a stipend. They have two very different markets: for Ethos Books mainly Singapore and Southeast Asia; for Gaudy Boy mainly the US. They are also governed by different laws: Ethos Books by the laws of Singapore, Gaudy Boy by the laws of the State of New York. So any comparisons between the two standard contracts must take all these differences into account. In fact, we want to learn from these differences to see how we can improve ourselves. Whatever we share tonight must not be taken as legal advice. We are sharing from our knowledge base, including Jerrold, our lawyer at this meeting, but we are not providing legal advice. We hope that you will hear many things tonight that will be helpful to you. But if you have questions about your contract, you should seek proper legal help.

The format for this event is as follows: Kah Gay will speak first about Ethos Books, followed by Kim about Gaudy Boy. We think their presentations will answer many of your questions. Then Jerrold will comment on the two presentations. After Jerrold’s comments, I will begin the Q&A with the questions that you have sent in. We do have many many questions that you have sent in, so I beg for your patience before we get to your question. As the conversation develops, you may have more questions, follow-up questions. Please type your questions in the chat. I ask that we reserve the chat for questions only and not for side comments, so that we can read and get to all the questions easily.

The focus of this event is on the publishing contract, so we will be fielding questions only on the publishing contract and not general questions about publishing, such as how to get published. We’re looking forward to a constructive dialogue with everyone, a dialogue that will expand all our understandings of how publishing works for Singaporean authors. And now we will hear from Kah Gay about Ethos Books.


Introduction by Ethos Books

Kah Gay: Hi everybody. Thank you Jee Leong for a very comprehensive start, and I wholeheartedly support your framing of this as service to the community, because we are part of a larger community, and the lack of knowledge of one will be the lack of knowledge and good practice for the entire industry. So I will go straight into a presentation, which will set out what is in a publishing contract. Let me share my screen.

A publishing contract is set out in very clear terms. The sequence may be different, but the parts are typically the same, even across different jurisdictions, because you have the same concerns when you come to publishing a work. So what are the main parts to a contract?

So the essentials are that there are parties to the contract, the person or the organisation. You have the start and end of the contract; a contract with no start and end is incomplete, and is very dangerous. The work that is being governed by the contract, the rights and obligations of both or more parties. You have declarations—I call them declarations, because when you use the legal term “warranties” you’re not sure what that means—and then you also have indemnities, which are exemptions. There’s also this part that’s about fees and/or royalties, a fee being a one-off payment, a royalty being payment you get from the sale of a book. And you have terms governing sale and licensing of rights, extension clauses, release clauses, termination clauses, these will affect the start and end of the contract. And the last part is other terms. So I’m just going to go through each of them in a very systematic way.

So who can be a party to a contract? So between a publishing house and you, the author, that’s the two parties. If you’re in an anthology, you can be included in a contract involving multiple parties. But for Ethos Books, what we do is we sign a contract with the editors, and that is separate from our contract with each contributor. Because that establishes very clear lines of responsibilities and obligations. So if you’re a children’s book author, there’s an illustrator, what can happen is that all three parties, the publisher, author and illustrator are in the same contract. And that actually is good because you know what is happening for each party.

The start and end of the contract usually we define that in terms of duration, and you say 10 years from the date of publication for example. Because the date of publication may differ by the time you have finished the work; at the time of signing the contract you may think that you’ll finish the work by, say, 2021, but then you take 1 year longer. It is also possible that the contract ends upon the completion of specific outcomes. So it could be—a very commercial contract is if the author finishes doing a book, submits a manuscript, gets paid a fee, that’s the end of the story, no royalties. Also it’s good to note that the date of signing may not be the date of the contract starting, because as mentioned just now, the duration can be defined apart from the date of signing. And later we talk about the extension clauses, termination clauses.

Next part, the work. The title may not be confirmed at the time of signing the contract, but there must be a reference to the work itself. It is also useful to note that the work, is it the whole work, or does it also pertain to parts of the work? You can actually as an author say that I do not want my work to be split up, and therefore the publisher will have to work with the entirety of the work. But of course, you must be very clear why you want to do that, because the more that a publisher can tweak the work, the more that the publisher can maybe market it. So there must be that underlying understanding of the trade-offs.

Then there are also rights and obligations that are governed by the contract. So rights would be for a publishing contract usually specified in the following manner: is it exclusive or non-exclusive to the publisher? From the perspective of you as the author, if you grant exclusive rights to maybe Gaudy Boy or Ethos Books, this means that no other publisher can enter into an agreement over the work. So it’s exclusive to this publisher. And it is also specified that this is English that we’re talking about. But because a lot of publishers, they want to be able to promote your book in all languages, they’ll ask for all languages, and the part about territories, they’ll ask for world rights. So that they can then—if they go to any book fair—represent your work in all the possible languages in all parts of the world.

Format would refer to, is it the print publication, is it digital format, is it audiobook, so again usually publishers will sign the work on the basis that it is all formats. And the control over the design and production, the distribution and sale of the work, this is actually a very important term that publishers will also need to negotiate for. Because 10 out of 10 times, the author and the publisher may not fully agree over the cover and you cannot have an impasse. You cannot have a point where nobody gets to decide, or everybody gets to decide, and the book will never be published. So these are certain rights that need to be very clear from the outset.

ObligationsThere are obligations on all parties, and the obligation from the author’s end will be submission of the work, and typically the publisher will expect that the author secures permissions to include material in the manuscript. Because if the publisher has to secure permissions, there may be incomplete knowledge. Is it covered? We do not know. So we will expect that when a manuscript is submitted, you have done your part in ensuring that you are clear to use certain material from people who may own the copyright of this material, for example. So acceptance of the work is on the part of the publisher; if we sign a contract, then is that already a commitment to accept the work? Because you must imagine that sometimes at the point of signing, the manuscript is not complete. But is the publisher then entitled to say that oh, if the manuscript doesn’t fit my expectation, we won’t accept it? So that must also be very clear at the outset. It depends again on the situation because the level of completeness at the signing of the contract differs from work to work. And also the obligation to read and correct the manuscript and to look at the layout; it sounds funny that that is an obligation, because I think that you would want to read it and check that everything is right, but it has to be set out as an obligation, because it becomes then a responsibility of the parties who signed the contract. And I would say that a good publisher must want this responsibility, as well as a good author.

The next part would be declarations and exemptions. So a declaration by the author would be, “I authored the manuscript, and therefore I own the manuscript”. It could be that the author has written the work, but does not own the work. There’s a distinction. Because you might have agreed to somebody to do this work for this somebody, and you have written the work. In a way you are the ghostwriter. But that means you're not the owner. So to sign a manuscript you must have authorship and ownership. And the next part is declaration by the publisher, which is that we must make sure that we protect the copyright of the manuscript and that we will consult with the author for certain decisions; typically those are financial and legal in nature, because say if the work enters into some dispute, the publisher also wants to check in with the author about that.

Exemptions sometimes are called indemnities as well, and for example, this exemption says that if there are certain proceedings that result from certain references in the manuscript, then the author will indemnify the publisher. And I do feel that there is a discussion later for this, because this territory can be quite contentious.

Next, fees and/or royalties. Fees would be one-off fees, and typically for Ethos we do that for anthologies, because if there are multiple authors, we are a small team, and our finance department will have a very big headache having to pay out for everybody, and the amounts—because you imagine, the sale of the book is divided into so many parts among so many writers, so it becomes very minuscule amounts and to many people, and we just prefer to pay one-off at the start.

Royalties would be typically for single-author works, and it will accrue and be paid yearly, in the case of Ethos. And for different publishers the frequency of payment may differ. And I think most importantly, later we can share a little bit about the thinking behind why we do it this way, why we pay royalties in the frequency that we do, and we can even talk about percentages. But more important is that for ethos, the thinking behind the frequency is also tied to our manpower. We don’t have a big team, so yearly payments are already quite exhaustive already.

Sale and licensing of rights. We have this clause because your work can be a portal to derived works, for example if somebody wants to make a film, they will approach typically yourself, the author, or the publisher. When you sign the contract with the publisher you are deputising the publisher to negotiate for you, and that in a way takes the burden of negotiation off you, so there is a clause to govern what you get out of this arrangement when it does happen. So there’s this thing about allocation of net receipts. So after sale of rights, there is a fee, there is a revenue, but then there may be costs involved in negotiation, and there will be bank charges and things like that. So after you deduct all those costs, for example if I need to fly to a place to discuss a contract, then I deduct all those costs, it becomes a net receipt. So the division of the sale revenue will be after netting off those costs, and then we allocate it, and there’s a percentage that should be very clearly indicated.

The next thing is extension, release, termination clauses. Be very mindful that there will be such clauses, depending on the type of work and the publisher you’re working with. The most important thing is to read through the contract. For example a release clause, if you look at this example, after five years if the work doesn't sell well, the publisher will then be at liberty to tell the author we might want to close this agreement, we will offer you this release, and then you can buy back the books at this cost price if you wish to, if you don’t it’s fine, but you are now free to take your work to other publishers. So in that sense it releases both parties from the contract. A termination clause will be effected by certain breaches of contract, for example, so we can talk about that later. And an extension clause can be after the natural term of the contract, meaning the ten years for example, it could be an automatic extension into a specific format, that can be also in the contract.

Some other clauses that will be typical boilerplate template for contracts is for example reservation of rights. I think this is important enough to highlight, because if the rights are not governed by the contract, then who owns it? In this case the author owns it, that’s what is in an Ethos contract. So then confidentiality and this concept of proper law and jurisdiction, which is what just now Jee Leong mentioned. Here we are straddling different jurisdictions. Gaudy Boy is based in the US, Ethos is based in Singapore. So I think I’ve done the first part already, now over to Kim.

 

Introduction by Gaudy Boy

Kim: Hi everyone, my name is Kim, I’m the managing editor of Gaudy Boy, which Jee Leong mentioned before is a small indie press based in New York City. We do publish in Singapore as well but our main focus is here in the US because members of the team are here.

So basically what I’m going to do is I’m going to build off what Kah Gay had mentioned before very briefly. Also thank you Kah Gay for sharing; it’s so interesting to see what other publishers do in their contracts. Like Jee said earlier, in this session we are sharing and we want to be in service to the literary community, but we are also learning ourselves, we’re also seeing how different publishers do their work, and we love having this occasion to be in discussion and conversation and seeing how we can finetune our own contracts based on what other people do, so it’s just so wonderful to be transparent about all this with all of y’all. 

Basically key clauses—you’ll notice a lot of this kind of overlaps with what Ethos does. Some things are slightly different, maybe because of us being in New York, of us being a smaller press, all the differences that Jee described earlier, but you know, there will be overlaps, because as Kah Gay said we talk about the same things, and these are all important elements you want to be aware of when you enter a contract.

So number one, grant and territory—Kah Gay’s mentioned all of this before so I’ll just go through quickly, and we can go into detail in each slide later. Delivery of manuscript and acceptance, warranties, which Kah Gay had called declarations, we have advance and royalties, which is basically your payment. We have subsidiary rights, which is what Kah Gay mentioned are the rights you would sell off to third parties, then we have accounting, which is basically how you’re paid. We have author copies, which is kind of complimentary copies that an author will receive when they enter into the contract. Then we have a publicity clause. We have a reversion clause, which Kah Gay also briefly mentioned, and finally you know we have the typical governing law, which describes which law the contract is operating under.

So first slide, grant and territory. This is very basic, very important, usually comes at the beginning and should be very very clear. We have the term, which is the duration of the contract. Sometimes you have contracts that say this will run for five years, ten years, whatever, sometimes we have terms where if you take a look at this language below that I screenshotted for y’all, “The Author hereby grants to the Publisher for the full, legal term of copyright”. In the US, full legal term of copyright is the author’s lifetime plus seventy years, and this usually happens if the author and the publisher agree that the publisher will represent the author for the legal term of copyright, for a very very long time. For other works, of course, you amend that accordingly based on the different ways the works are going to be sold, the different purposes, whether the author wants to release those rights or not. These things by the way, all of these are terms that would be negotiated based on what the author wants. Sometimes the author is like, publisher, I want you to do everything for me and that’s great. So it really depends on your needs, the place, the type of work, etc.

Of course you have exclusive and non exclusivity, which is the second point that Kah Gay mentioned really briefly, it basically means that if you’re offering your rights as exclusive, the publisher has the right to go ahead and publish your work and you cannot publish your work anywhere else. So obviously exclusivity runs with you offering the publisher the world territory, because the publisher is basically the main spokesperson of your work everywhere. You offer non-exclusive rights if let’s say you know you want to go ahead with your rights and your work and sell it somewhere else to another publisher, that’s why this contract you enter with the first publisher has non-exclusive rights.

We have territory, which can be World, or North America for Gaudy Boy, Southeast Asia for Singapore, or the Commonwealth for the UK. And then we have format, which is talking about whether your book is going to be in print form or if it's going to be audio or an ebook.

We have delivery of manuscript and publication. Words here or language here would usually describe the work and maybe sometimes include a word count. Then it would usually outline a delivery deadline. Again it depends, some works come to the publisher completed and then you have language that says the work is complete. Sometimes the work isn’t completed yet and then you have a delivery deadline where the publisher says we would like the manuscript to come in by this date. And we have acceptance as well, meaning like what Kah Gay said, sometimes in certain situations the publisher would want to be able to determine whether the work can be accepted, especially if it comes in and the quality is poor.

You want to put in terms to figure out how the work can be edited, can be finetuned to make sure that it’s publishing quality, and let’s say if it’s not, if the author doesn’t comply for some reason there has to be terms there that allow the publisher to be released from the contract. Same thing with the author; let’s say the publisher is not timely with edits, there could be language in there as well where the author says I’d like to go somewhere else with this, but that’s rare.

We have publication deadline next, which basically the publisher saying, once we have accepted your manuscript, in 18 months we will promise to publish. Just kind of determining that they’re not holding on to your work forever. And then we have the fourth one which Kah Gay also mentioned, author consultation with regards to the production process. So once again, things like cover and all these things that are very sensitive, you know, authors want to have a say. What we at Gaudy Boy do is if you take a look at the sample language I have here, this is an example of the publisher attempting to accommodate the author’s request but still maintaining control over what the cover will look like. Because ultimately you need to have someone to decide on it. So the language says “The Publisher agrees to consult with the Author with regards to cover design. Notwithstanding this prior sentence, the Author hereby grants to the Publisher the sole and exclusive right to decide upon every aspect of the production.”

So this is an example of us working together with the author but still having language in there to kind of say, you know what, at the end of the day someone has to make a decision. Of course all this is legal language; when we work with authors, we at Gaudy Boy really want our authors to love the covers, so we’re never like no, this is it, we’re done, we always make sure we’re in conversation with the authors, that they’re happy and they want their book to be represented well.

For the third we have warranties, which Kah Gay called declarations, and these are basically promises that the author provides when they sign the contract saying that I warrant that I am the sole owner of the work, I am the sole author of the work, whatever the situation is, it depends. Basically you are promising that you’re not infringing any copyright when you submit the work. Then we come down to permissions, I’ll go through these really quickly, basically we make sure that you have secured any permissions that you need in order to—when you submit the work the publisher doesn’t have to go around chasing other permissions, whether it’s permission to use a photo, permission to use an excerpt, whatever it is. Extending warranties to third parties, sometimes language in the contract says that when we license the work to let’s say an audiobook company, we want to extend the warranties to them as well. Infringement basically means that if let’s say someone else infringes on your work the publisher and the author would work together to file a suit or any returns, the contract determines what the split would be and how all those things would be outlined, so you want to see language on that as well.

And then you have the indemnity clause, which as Kah Gay said again, it basically covers the publisher in the event that an author’s warranty is breached, so if an author promises that hey, my work is copyrighted, this is my work, I own it, and it we find out that no, the author infringed on someone’ else’s work, then language has to be in there to cover the publisher. And we can talk more about that later as well during the Q&A. And here’s some sample language again, “Author warrants that they are either the sole author or the proprietor and sole owner of all copyrightable material”.

Advance and royalties. So an advance basically is the payment that you would receive for your book and advances are non-returnable and they’re made against royalties. So when you have a book contract you usually expect to see a fee that you would be paid outset, and then we will start earning royalties as you go, as the book sells, of course, but you will only be paid royalties once the advance is recouped. So kind of take it as an investment, money given to you at first, and then the royalties come in later. So here's sample language again, pretty straightforward.

Subsidiary rights, straightforward again. These are the rights that the publisher would license to third parties on your behalf, things like foreign translation rights, studio rights, anthology rights. So here once again, like Jee said earlier, terms in the contract can be negotiated so for example if let’s say you’re like I don’t want to give my publisher world rights, I have connections with another publisher in another place and I want to sell them UK rights separately. So in that sense you would only give the publishing rights in the territory they cover, and then you would not give them foreign or translation rights because you want to retain those rights to give it to someone else. So once again the elements of the contract can shift based on your personal preference and also the publisher’s idea of how they can do the best by your book, how can they best market your book. Sample language is pretty straightforward.

We have accounting, which is basically language in the contract that would show you what the schedule of your payment would look like, so you know when to expect incoming monies. For Gaudy Boy we also do once a year, we do all our accounting once and we make payments then. And this is just for royalties, it doesn't count the advance. The advance usually is paid half when you sign the contract and half when the book is published. So this accounting is just for royalties. There’s something called reasonable returns that I guess—I don’t know if I have time to go into it—some publishers will put a reasonable return on your royalties, meaning they will withhold a certain amount of royalties, just because in the book industry—and I believe the book industry is the only industry that does this—when you sell books to bookstores, bookstores have the ability to return unsold books to the publisher, saying hey, no one bought these books, I'm returning them. So if you pay royalties to the author based on that, and then suddenly there's a whole load of returns coming back to the publisher, then the royalties that were paid to you don’t belong to you anymore, so sometimes publishers will put in reasonable returns.

Author copies—this is a very simple thing, but sometimes when you do contracts with publishers, it’s these little things that you want to look out for, such as language that says that you have the right to have a certain number of complimentary copies of your book. You want to have copies of your book. So we have this in the Gaudy Boy contract and we also stipulate that you’re able to buy copies of your book at a discount.

We have publicity which is simple language again that kind of says that the author consents to use their likeness in any publicity and marketing details. Pretty straightforward, and again, if you’re not comfortable with that, you want to change your name, these are the terms you can negotiate with the publisher.

Reversion—basically once again this is language that allows for what would happen if the work goes out of print, or if let’s say the work isn’t sold as much, not many copies are sold in a given year. For Gaudy Boy specifically we use this benchmark because we are a print-on-demand platform, so we don’t have a print run. So if we say that X number of books are sold and if less than that are sold in a year, then maybe we can talk to the author and say this is not doing very well, let’s discuss reversion of rights. It’s very rare that this happens, but we want to put language in there to account for it. So that’s always the point, you want to make sure that things are covered.

And finally for me we have governing law, very simple. In any contract you want to make sure that the governing law is specified. For Gaudy Boy it is New York. That’s the end of my slideshow. 

Jee Leong: Thanks so much Kah Gay and Kim; may I now invite Jerrold, if you have any comments on the two presentations from the legal perspective to offer?

Approaching the publishing contract as an author

Jerrold: Yeah sure, thanks so much for having me in this event. Yeah I think it’s really plugged a gap in the market in terms of coming to a publishing contract with as much knowledge as possible as a writer. So I’ve scribbled down some quick thoughts based on the very helpful presentations that Kim and Kah Gay made, so I’m just gonna quickly run through my list. This is me coming from both an author and a lawyer’s perspective; I’ve qualified in England and Wales as well as Singapore, but then this obviously isn't legal advice, I think what we’re trying to do here is to provide a very fundamental, conceptual understanding of how publishing contracts work. So obviously if it’s a highly contentious negotiated document that’s worth 250 million, obviously you would talk to your own lawyers on it, so this session is for lower value publishing contracts, standard contracts, for authors that won’t necessarily need to engage lawyers on.

I guess the first thing I wanted to latch on was what Kim mentioned in relation to the fact that—I think with legal documents people sometimes get scared of it or intimidated by it, but it’s not the be all end all. And i say this because what Kim rightly reminded us about is that a successful working relationship between an author and a publisher is not based one that is written on paper, so when Kim said for example Gaudy Boy maybe has the right to veto any cover or something like that, but they want the writer to be happy as well, so it’s all about sustaining this long standing relationship between publisher and writer, so we go into the contract knowing that we’re on the same page, we've got the common goal of bringing this baby of a book to the market, so it’s unlike other situations where the legal document is inherently contentious, it’s inherently acrimonious; this publishing contract is not an animal of that nature.

So the second comment that I had was that if we take a step back then, what would a publisher want from me as a writer, I think honestly when I approach publishing contracts it’s usually a red flag review. So I don’t look at it with the expectation that it would be a highly negotiated document, if it is then there's something fundamentally wrong with the starting point in the first place, with the precedent contract that’s been handed out. So things that Ii can live with are things that make sense. So from a publisher’s perspective they would obviously want warranties, they would obviously only want to publish work that I say I have written, otherwise that would just be plagiarism, that is something you can’t negotiate because it just makes complete sense. From an author’s perspective it makes sense for me to give publishing rights to my publisher, but I'm not going to transfer copyright or assign copyright. Copyright exists at the time of creating a particular work, and I own the copyright as the person that created the work, so I just need to make sure from an author’s perspective that I’m not assigning any other rights or giving any rights to the publisher other than publishing rights, specifically.

And then other things I look out for would be—and I know there are a couple of questions later on this particular point—on indemnities. Generally I'm a bit more wary of indemnities, and that's because of how they work contractually. To bore you for five seconds, just going down the sort of legal explanation. So warranties is basically me saying that the work is what it is, it is my work, I own all the rights to it, and that gives the publisher comfort entering into the contract. An indemnity is a pound for pound—SGD for SGD—sort of payment where in the event of any loss suffered by the publisher due to to some specified events the author has to reimburse on a dollar by dollar basis, so that’s a bit onerous if we think that I’m getting 40SGD of royalties a year, so it’s about proportionality for me. If it’s 5% of royalties per title, $16 per book, I’d be lucky if my work sells 15 copies a year, so I’m not going to sign up to a wide ranging indemnity that covers every sort of conceivable loss on the publisher’s front arising from my work. So it’s just being wary of these concepts. But also as mentioned, just having this common goal of publishing this work and getting this work out into the world in mind. So those are just my quick thoughts.

Jee Leong: Thank you so much Jerrold, for those very useful thoughts, those useful highlights that you have just given to us. Do Kah Gay or Kim want to respond at all to anything? If not we’ll go into the Q&A.

So we’re going to begin this Q&A with a more general philosophical question, which actually came from one of you. And this question is, what does a fair contract look like for both the author and the publisher? So beyond the legality that we have been talking about, which is so important because we do not want to be tripped up by the law, what does fairness look like for both sides? I wonder whether Kah Gay or Kim would like to take the question.

 

Kah Gay: Kim, would you like to start first? I’m good either.

 

Kim: It’s a very abstract and difficult question to put a finger on. I would think that also addressing the other questions that come up, we would be talking about this very concept, because ultimately that’s what we want to do, or at least Gaudy Boy, when we sat down to talk about this, we wanted our contract to be fair. We wanted to be fair to both parties because it has to address both parties but we wanted to acknowledge that many big companies in general in any industry, the contract is like how much can i get out of this contract for me, and when we were talking we were really just of that mindset, how can we make sure we don’t have this kind of thinking. Again this discussion is so useful because hearing what all of you say will also help to make our contracts even fairer, and make the changes that we need to make on our part. So I don't know how to answer that question directly, but I'll keep my tabs on it.

 

Kah Gay: I’ll take a stab at it. First of all, just now earlier Jee did make a distinction between Gaudy Boy and ethos; ethos is an imprint of a commercial entity, so what our team does is we have a responsibility to stay alive as a publishing house and do our work. So I learnt this from—I used to be a teacher, I didn't have to care about earning money by selling things. I get a monthly pay and I actually am encouraged to spend as much as possible so we don’t have leftover budget. Sorry guys, Singaporeans, this is how tax money is sometimes utilised. What happens is that when I join a publishing house I realise that we have to balance the books and so the fairness arises from a consideration of every single party including ourself. My finance manager last time, Bee Choo, wonderful person, who taught me how to survive with my team, she shared with me, if you're not around then how do you even think about being fair to your authors? So I would say that to be fair requires consideration of all parties and their needs. And so for us at Ethos Books we think very carefully about the percentages and the amount that we give to the authors and at the same time i also have to think about my younger colleagues who are thinking of making a livelihood in this industry. So my consideration is can I encourage them sufficiently to see a future in this industry?

Because if they leave the industry then we are left with only authors and no publishers, and that is not an equal system, so that is the first part to considering fairness, and I have to be super honest about that. And the second part is authors. Authors, you give us your work and we are respecting the endeavour that is every piece of your writing. It’s so amazing that you want to do this. And so what we can do is, a fair contract will look, after we have considered what we need to survive, we divide and make sure you have a fair amount. It could be 50-50, 40-60, sometimes it also depends on, for example Covid really caused a lot of problems for retail. So now even 50-50 after we have netted off certain costs may be a bit difficult. So I don't know how each of you are handling contracts, some of you are already published, but please take note that different firms have very different bottom lines and they have to think about that. But if you have a very fishy feeling that the publisher is driving around in a Rolls Royce right, but then I’m getting pittance right, something is definitely wrong, so that is the good sense that is involved in fairness as well.

The last thing about fairness is that my editorial team recently brought up a wonderful thing to us; we have a contract that is sort of handed over the years, and typically contracts are sticky, you don’t want to change contracts so much. Why? Because there are existing authors on them. And suddenly you change your contract and then the other authors are left floundering. So a change has to be for good reason, and there is a stickiness to law that maybe also is not always the best, but it does mean that we care for what we enshrine in the law. So one of the editors mentioned that can we remove this from one of the clauses: the author shall indemnify the publisher from any damages resulting from the publishing of libellous content. The word libellous content—we had a very deep conversation and say that hey, at Ethos Books we publish content that challenges certain status quo, and if we insert a libellous kind of fear factor, who's going to submit a manuscript to us, and is it even in our interest to put that in? So we have actually taken that out. But then there are still other indemnity portions inside. So I think it will be a very gradual process as we become more experienced and become more aware of the situation but I would say bring this to the conversation.

 

Jee Leong: Thank you very very much both of you. I see there is a question in the chat which is actually more related to payment, so I will ask that question when we come to talk about payment and royalties. Instead we’ll go to a group of questions now, about rights. because we do have a number of questions about them. And maybe this is a question for Jerrold: what is the difference between copyright and publishing rights? You mentioned there is a difference. And who owns what rights and who should be owning what rights? Is there kind of a standard practice in publishing?

 

Jerrold: Yeah, so normally based on my experience, and I’m an M&A lawyer, so we deal with cross-border mergers and acquisitions. But a lot of the tech M&A that we work on, obviously there’s a strong IP focus, so naturally we come into contact with IP contracts and IP rights in general.

 

Jee Leong: By IP of course you mean intellectual property rights.

 

Jerrold: Yeah, that’s correct, thanks for that clarification, so intellectual property, of which publishing rights and copyrights would fall under. So I think a sort of very brief summary would be copyright exists at the point of creating a particular creative work, so whether it’s poetry, novel, short story collection, and that copyright doesn’t have to be registered, it's just with the owner, so the owner is the writer. Then when we go to a publisher to seek publication of that copyrighted material, we’re essentially granting them publishing rights so they can do whatever they want in terms of publishing the work, but the inherent right to the work, the right that the work is imbued with at the point of creation, that still rests with me as the writer, so that’s a fundamental difference. I guess we could make the distinction maybe linguistically, procedural rights and intrinsic rights, so copyright is something intrinsic to the work whereas publication is a procedural thing, so you do this, you contact this, you market this work in some shape or form, so that’s the main difference between those two rights. Normally i would want to retain the copyright because that’s the right to the work that’s intrinsic to the work and then I would leave the publisher with publishing rights, obviously all of those publishing rights would need to be well documented in the publishing contracts.

 

Jee Leong: Would it be right to say then that part of the publishing rights is that the publisher undertakes the defence of the author’s copyright to his work?

 

Jerrold: Yeah, that’s a common clause I’ve seen in my publishing contracts as well, and there would also be a consultation obligation, so I think like you say in the event of a defence or a dispute both the publisher and the author would be on the same side, they would want to protect the work against the third party infringing the work or alleging there’s been a breach. So in that sense there would be a consultation, I guess say a call to arms in the contract where both parties that are technically divergent in a publishing contract would come together and then sort of fend against that third party.

 

Jee Leong: Thank you so much, Jerrold. The next question I think is for our publishers, and you have mentioned this in your presentation already, but it bears repeating, and we do have some people who joined us late. Can an author publish the manuscript with another publisher after they have signed a contract?

 

Kah Gay: Actually when you have signed a contract there is already a commitment, and if it is an exclusive right, then no.

 

Jee Leong: Yeah, so the distinction here is between granting your publisher exclusive or non-exclusive rights. If the contract stipulates exclusive rights, you cannot publish with another publisher. Is that right?

 

Kah Gay: Yes, that’s right. But if it’s non-exclusive rights, there is some sort of right associated with first publication, so the first publication may need to come out first before signing the next contract; the next contract you sign should result in a later publication because in all fairness to the first publisher the publisher wouldn’t want to be late with the publication, and it may affect the estimation of sales and things like that.

 

Jee Leong: Thank you. Here’s the next question; what happens if a publisher folds? That means, you know, comes to an end, stops publishing? Do the rights revert to the author? Is it necessary to stipulate that in the contract?

 

Kah Gay: I think both of us nod our heads yes. It’s important to say that it should go back.

 

Kim: Yeah you should usually find it in the reversion clause. There will be a line that in the situation that the publisher goes bankrupt, whatever, you see language there.

 

Jee Leong: The next question has to do with digital or electronic rights. I think both of you made mention of it, that it is typical in standard publishing contracts for the publisher to ask for these digital rights as well. Is there anything particular about digital rights that authors should be on the lookout for in their contract?

 

Kah Gay: I think for digital rights, because the pricing of a book is different, but even so the production value, or rather the production cost of a digital book is ‘less’ than a print copy, typically. Say a digital sale can come on the same copy that has been produced, so the publisher does one digital book and can sell it continuously, but it must be very carefully considered, what is the cost of producing this ebook, and then the production cost is then divided over the expected number of digital copies. And for a literary publisher like Ethos and Gaudy Boy, sometimes ebooks don’t sell as well, so there are a few things to balance out. Firstly is the retail price of the digital format, secondly is the expected sale of the digital format, thirdly is the production cost of the digital format. So how this plays out is that it still must be very clear how much the author gets from the sale of the digital copy as compared to the sale of the print copy. And typically the percentage from a digital sale is higher. So for example if a digital book is sold the author may get maybe two, three times more than a print book. I’m just stating some numbers, different publishers have different numbers.

 

Jee Leong: Kim, is that true too you think, for Gaudy Boy, that authors are probably going to get a higher royalty from the sale of an electronic copy rather than a print copy? But they may actually sell fewer electronic copies.

 

Kim: Yes, absolutely.

 

Jee Leong: Thank you. The next question has to do with foreign rights, and the question has to do with how are they sold, how do publishers go about selling foreign rights? I think Kah Gay used the word deputising—the author deputises the publisher to sell the rights to foreign territories. How do presses go about doing that?

 

Kah Gay: Maybe I’ll start first—we’re deputised, it sounds very dignified, the whole thing. Actually the truth of the matter is we go and hawk our wares at sales, events, international book fairs, but I would say that for independent publishers we tend to go to book fairs where you find more like minded publishers. I think today both of our teams are independent presses in nature. We are very different from commercial animals that are like talking about maybe advances that are half a million pounds, things like that, we’re not like that. So the economy that we work in and the people we talk to are very different, but we will go to book fairs.

So fairs like say regional fairs, say Hong Kong book fair, is smaller in size, but there’s a higher chance of matching. And sometimes we can also work with a sort of agency to represent us. For a market like China which is very complex, it is good for a publishing house to work with an agency, who will then talk to the different publishers in China. And when you talk to a foreign agency, what they’re doing is they are selling your book in other languages, so it is essentially a translation and publishing deal. So we can sell rights directly in English, assuming that is the language that is original to the work, and then we can also sell rights to other territories in other languages. Kim, any more (that you want to add)?

 

Kim: No, all of that. As small indie presses, basically the way that foreign sales work is with connections, with hawking, you know of a lead, you email them, you send them your catalogue, we discuss, we share, we build a relationship, and that’s how it works. Gaudy Boy, we’re pretty young, we started in 2018 if I’m not wrong, so we’re still waiting for our first foreign sale, but that’s basically how it works in the industry.

 

Jee Leong: Just to add to what Kim says, talking about personal connections, I think we’ve been very grateful to Ethos Books for actually selling us the rights to publish an American edition of certain of their titles, and that is part of the goal of the press in fact, to actually be able to publish American editions of worthy, good Singapore literature in the US market.

Okay, here is a question about negotiating with a publisher, one author writes. What if the publisher disagrees with me reserving my right to publish my work in other languages or countries for example, or when I want to adapt my work in another form? I think it’s a question about negotiation, you ask your publisher, I would like to reserve this right, either to a territory, to a language, or to a format, and your publisher says no. How would you then go about negotiating it?

 

Kah Gay: I’m not sure whether Jerrold has seen disputes of this nature, you can tell us a bit more later, but for a publishing house we must have confidence in ourselves to identify the right deals. So sometimes we do meet authors who also are very good at reaching out to people, so there will be a disagreement. And that disagreement—a self-respecting publisher will stick to what they believe in, and maybe they will say that we can try something out together. And it will be good if there is a clause in the contract, if you know yourself to be this author, at the point of signing the contract, tell the publisher this. You know, hey, I feel I have very good contacts, can we work out a clause so that if I secure the deal, then something more happens for me?

That is doable. We have done contracts like that before, but that is only because of very exceptional cases, because most authors are looking to us to help them to put the book out. Along the way if an author becomes very good, which is entirely possible, and they find this publisher to be not so aligned in thinking anymore, that may also happen. But I think the spirit of the contact is that at the point of signing we were both together. So during the course of the relationship, if the publisher has not done its part and you feel that it’s not properly done, hopefully the contract allows for some consultation. That’s why this session is good. So that if you feel that you’re that kind of author who will really become very savvy, you might want to negotiate for a condition that will recognise your contribution to a deal.

Jee Leong: Would either Kim or Jerrold want to come in with this?

 

Jerrold: Yeah, I can add my two cents worth. So unfortunately, or I guess fortunately, I haven’t seen disputes of this nature. And that’s fundamentally because of the value of the publishing contract. You know by the time you’ve got a team of lawyers on it it’s more than 10 times the value of the rights that you’re talking about—monetarily of course, not emotionally, as a poet we must think the world of our work, so that's fine. So I think that in terms of negotiations with publishers, I stand by what I said before, you would obviously have difficult publishers and thankfully they're few and far between based on what I've seen, and you would also have difficult authors.

So it’s not the case that every author proposing a new business venture or a new opportunity has adequately assessed that opportunity itself. So I think it's really a matter of communication and having both parties understand where each other is coming from. And honestly for me when i look at a standard form contract for an anthology where I’ve got a poem in, it’s really just a red flag review, and I'm not going to make it a best case scenario for me, I’m not going to spend ten hours marking up the document so that in the event that some sort of obscure contingency happens I would be protected. That's not the spirit of the exercise, it’s more like what I can live with as an author. So as long as I’m not signing up to a wide-ranging indemnity for like other works in the anthology or something like that, I'm fine with that.

And I think in terms of the example that Kah Gay gave, sort of publishers doing their part and then if you want to expand the scope of work so that it includes other opportunities in the future I think we can definitely provide for that in the initial contract, and if not because parties would want to sustain that working relationship, they’re just not gonna be saying go away we’re not interested; I’m sure that here would be some sort of communication involved. And obviously from a publisher’s perspective, if that additional opportunity also includes additional costs then that’s something they have to weigh against, it’s not just them saying no for no’s sake, it’s the fact that it might cost them huge liabilities that the author might not have been privy to.

 

Jee Leong: Thank you Jerrold, that’s very very useful. And if I may actually… one specific example in Gaudy Boy’s experience to what Kah Gay was saying about, you know, how a savvy author or author with a connection may actually negotiate with a publisher. We have published a book of poems by a Filipino author based in Singapore, who when we were negotiating the contract actually asked us if she can actually remove the territory of the Philippines out of the contract, because we usually ask for world rights, and that is because even though Gaudy Boy actually publishes and distributes in Singapore, it would be far too expensive for most Filipino book customers to buy and ship the book from Singapore to Philippines.

So the Philippines book market is very different because of the lower cost of living, the cost of books is much lower too, so it was not very profitable for us to sell directly to the Philippines. So because of that we talked about it and we agreed yes we will leave it out—no, what we did is we decided, give us world rights for one year, and after that year we will release the Philippine territory to you so you can actually seek a Filipino publisher to publish in the Philippines market. So, you know, there is that give and take as long as we are in discussion and want to actually of course..(it is) in both parties’ interest to maintain this working relationship.

Thank you. So I’m going to move on now to the next group of questions, of payments and royalties. Payments and royalties. A tough one. What would you consider a fair rate of payment an author can ask for? Is there a standardised way of measuring the amount of money each manuscript is worth, for example the number of pages?

 

Kah Gay: I think the first term… the pages really don’t matter, because we know the Instagram poets sell so much more, but I think worth is a very subjective term. I think for independent presses the worth of a book inheres in the writing, and we take on a book wanting to celebrate the worth of the book in literary terms. But the market values merit very differently unfortunately, so when we pay royalties we cannot pay based on what we see as the worth of the manuscript, the literary worth, because we get paid for the book by the market. So I think the first thing is, a publisher, how we do our calculations is we estimate the sale and we get a projected amount. We also know our internal costs, and after we work that out we know that we need to sell so many, so and so books, how many copies, to break even, meaning to just cover the time we spent on the book.

And so currently for Ethos right, our percentages are based on retail pricing, 4%, 8% and 12%, and it increases based on the tiers. And this doesn't apply to all our contracts, so if I get a call from an author, hey why are you talking about these numbers, I will have to explain personally now, because the numbers depend on the work. So I see a question in the chat: “is it fair for a publisher to give one complimentary copy for a contribution to an anthology”. Again if that anthology costs a lot to produce in terms of time and then we don't think it will sell a lot, maybe this publisher can only afford to really give a complimentary copy. I’m not sure how it works out for this publisher, but sometimes there is an honorarium, but it’s also a very small fee, 50 dollars. But in the end, look at the track record of this publishing house. Is this publishing house doing things very uncharacteristic of how it has done other books in the catalogue? And then you can kind of determine—I think fairness is contextual and also it is based on the specific party you’re working with as well. So to this question of royalties I think I’ve given very fixed numbers; 4, 8, 12 % of retail price.

 

Kim: Yeah, just to piggyback on hat Kah Gay said, it is very difficult to figure out worth, because exactly that, as an indie press the books that we publish are books we believe in in terms of the work, what the work is saying, what the reader gets out of it, the merit of it. Whereas how that translates to sales and interest in the market is very different because not everyone is an indie publisher, not everyone is as interested in what we are interested in. So calculations have to be made and when we figure out advances or royalties we have to also take into account how much we think the book can sell, how can we put it out there, what are the returns, and how can we do the best by the book but also make sure that the numbers add up, because ultimately we want to stay afloat and we want to make sure that we are doing our homework in terms of the math and the financials.

 

Jee Leong: Thank you so much Kim. Hannah, she had a question in the chat, which is relating to rights, so I’m gonna go back to rights for a moment. And she asked: would publishers allow authors to separately market their works on social media platforms or through merchandise? I don't know whether Hannah can actually clarify what you mean by market, because of course if you’re talking about promoting the book that has been published by your publisher I think publishers are more than happy that authors would actually be active in promoting the books that have been published by the publisher. But if by marketing you're suggesting to make available your work and to sell your work separately from the book put out by your publisher on social media platforms, that again I would imagine go back to the contract that you have with your publisher, whether you have granted your publisher exclusive rights, in which case you cannot actually be publishing your work and selling your work in any other formats. Or otherwise, non-exclusive rights, in which case of course you can do so. Is that your same understanding too, Kah Gay and Kim?

 

Kim: It seems to be the case. I’m not sure. Sharing quickly, when I used to work with my previous publisher, we would publish a lot of cookbooks, and these were recipes that were already published on blogs before, and a lot of our authors were very social media savvy, posting their recipes online and doing all that sort of stuff. Once again it’s like, if you know you have a strength in a certain area, and let’s say it's your livelihood or something like that, you want to be able to build it into the contract negotiations, saying you know I’ve published my recipes online as well, this is how I make my money, but I also want to put some of the recipes in this book. Can we figure out language that accommodates that? You know maybe a certain percentage of the recipes online are in the book and are you okay with that publisher, and you work out some language that allows you to continue to do your thing while making sure the publisher is okay with it and can still find a way to sell a book, and not be like well if there’s 50% of the recipes on your blog there will be no return for a cookbook. So you just want to be able to negotiate that. So a fair publisher I think would have these negotiations in good faith and understand where the author is coming from.

 

Kah Gay: Yeah I second that, and the idea of good faith tends to be understanding how each person does their work. Because for example, marketing is about timing and sequence as well, so if you want to create a certain effect, there must be a certain logic and flow to the marketing. And if the author has a campaign that is very separate from the book campaign it may actually be counterproductive, so I think the language that Kim you refer to can also accommodate for how such coordination can happen.

 

Jee Leong: Right thank you very very much. And Zainon and Hari I do see your questions, but I'm gonna ask them when we come to a group of other questions that are related to marketing and distribution and so forth. Here is another question about rights though, by Tina. If I sign publishing rights to a publisher on the book about cats, to what extent can I still write about cats, because cat is a universal subject and there’s so many aspects to it. How different would new content have to be, what has to be considered?

 

Kah Gay: I think Jerrold later you can clarify if I’m not as specific but I know that say when we take on a publishing contract and the work is the specified format and that specified format is what is governed by the contract. So if you write about a cat like being very lazy and doing a lot of lazy things but then in another book you write about this cat being lazy in other ways I don’t think you should stop writing about this other book, I think it’s not the same book, is that correct, Jerrold?

 

Jerrold: Yeah no absolutely. So speaking as a writer the standard publishing process would be we submit manuscripts to a publisher, so in my case Kah Gay as well, so once they agree to publish, then the work itself would be defined as a defined term in the publishing contact and that would refer to the manuscripts that has been edited with input from the publishing team as well as the author. So that is the work to which publishing rights have been granted to the publisher. So it’s rights that are in relation to a specified work, that is in a word form or PDF, it’s not rights in relation to a particular subject, so you can write ad infinitum of any subject that you want that’s outside of that pdf or word doc that you’ve submitted to the publisher itself.

 

Jee Leong: Thank you Jerrold, I think that was a very clear explanation. Now going back to where we were, which is about payments and royalties, we have a question about advances for the publishers. Are authors always paid advances? What is your practice?

 

Kah Gay: For Ethos, we have not paid advances until this year. It’s a practice we want to continue, but not all book contracts. It has to be very specific, because as I mentioned we have to consider each project separately. But I think why we want to move towards paying advances is because our team firmly believes that just as we want to make a livelihood, authors want to make a livelihood, and if you just wait for royalties without an advance, by the time you get your royalties, I think wow, it doesn't seem like you are living a life. So I think we want to move there but I think we have to do this incrementally, so it can’t be applied across the board.

 

Kim: Yeah, no same. For Gaudy Boy we do pay advances, but yes just as Kah Gay said there are some books that—not all books would have an advance. For example let’s say if we are commissioning an editor or an anthology editor to gather works, to put them together, maybe we would discuss (that) they work for hire, which would be a one time fee, not an advance. Once again a 1 time fee is you get the fee, you’re paid for your services and you’re done, whereas an advance is against royalties, so it’s kind of like, here's the money first and as you collect your royalties they are adding up to the advance, and that’s why you’re only paid royalties after the advance is recouped. So it depends on the type of project. You just have to see, once again, if the work that you’re providing fits the advance model or not.

 

Jee Leong: Am I hearing from both of you that it’s a good idea, if advances are not given all the time, that it’s a good idea to move towards giving advances, to recognise the work of the author?

 

Kah Gay: Yes.

 

Kim: For big publishers—I understand for smaller publishers sometimes you’re strapped for resources, you’re giving out money before you can recoup and that’s what we at Gaudy Boy did at the beginning. You know, here’s our first book contract, here’s the advance, we have not made any money. But for bigger publishers definitely, an advance is standard industry model.

 

Jee Leong: Great. Let me follow up that with a question about royalties, because they go together, advances and royalties. What are your standard royalties and how are they split between publisher and author? I think that’s a misunderstanding here, royalties go to the author paid by the publisher. Do you want to say something about the royalties?

 

Kah Gay: Maybe the concept about royalties, we can explain a bit? Seems like a definition that we can all be very direct about. So when you sell a book, the book is maybe $10. And then the bookshop may take $4 or $5, it depends. The remaining $5 will then be what the publisher has to pay for printing, design, the author, and also our own upkeep. So that percentage that goes to the author is called the royalty. So this percentage, just now I mentioned, the range can be from 4-12% and is dependent on the book and also the tier and the number of copies, a lot of factors. So when you say that royalties are split, you’re in fact saying that the revenue from the sale is being split, and the part that goes to you is the royalty, and maybe you're concerned about the percentage that goes to you, and that’s what we’re saying, that the numbers refer to the percentage of the revenue that’s going to you as the author.

 

Jee Leong: Kim, do you want to jump in on this?

 

Kim: Something else I guess to distinguish, and this might appear in some of your contracts, is royalties on net receipts and royalties of retail price. Kah Gay, am I right to say that what you were describing earlier is royalties on net receipts?

 

Kah Gay: That’s right, actually the royalty that you calculate is based on after you have deducted the costs, so that is the part that goes to the author.

 

Kim: Yes. So it is very standard in publishing to have both; it really depends, there’s not one that’s better than the other, because all books are different, a book that sells a lot could make more than the other system, but basically the two systems are net receipt which is what Kah Gay just described, and there is also royalties of retail price, which is basically the fixed retail price is there and you give an author the royalty percentage based off the retail price, which would be however much the book costs.

 

Jee Leong: Right, thank you both of you. I think the earlier question about payment to contributors of an anthology Kah Gay has already answered that partly. I think the question is whether it’s fair to pay contributors of an anthology in kind, a copy of the book, rather than receiving any kind of payment. And I think I heard Kah Gay say of course that it depends on the anthology, doesn’t it, because sometimes even if to get an anthology published it would involve so much cost, and if not many copies are actually gonna be sold, what the publisher can offer may be just a copy of the book. But I think you also warned us, Kah Gay, that you want to keep looking at the publisher’s track record because that can also be very very telling if that is all the time done even for anthologies that are selling very very well. That should be a red flag, am I right, Kah Gay?

 

Kah Gay: Yes, I think that is absolutely what I have in mind.

 

Jee Leong: Ok great. Well we also have a question here that’s related to payment by Eleanor. She asks, regarding projects that require many photographs such as a book on architecture or cooking, is it standard for a publisher to ask the author to pay for all the costs? I guess the cost of the photographs.

 

Kah Gay: Typically when we get manuscripts with photos they come together. The projects that require photos to be taken… in fact I don’t think I can recollect any instance when we had to take more photos than what was already submitted. So I think we can consider this a hypothetical for Ethos, not sure about Gaudy Boy?

 

Kim: We don’t have such books yet as well, but also having worked in a previous company that did quite a lot of those books, if let's say you are working with a publisher and you know that publisher produces a lot of coffee table books, these kids of books that rely a lot on photographs, I don't know what the situation is, I don't know whether they approached you and asked you to write this book for them or whether you have a complete manuscript and you’re submitting it to the publisher, so I think it would depend. But if let’s say the publisher has approached you and is commissioning the work, then I think it would be a good idea in your negotiations to say hey, so you want me to produce this book, can we include a fee or stipend or something for the photographs that I’m trying to get for you? Especially if they’re publishing this all the time. If they’re a publisher like us or Ethos where it’s not really our wheelhouse, for Gaudy Boy at least I don't think we would have the resources to do that, which is why we don’t commission such books.

 

Kah Gay: Yes I think very similar, I find that our strategies and our thinking are very similar, probably because of the scale of our operations. So what I would say is that then this publisher, we might even say that maybe you need to find another publisher who can do this with you, because you need to find a publisher who can pay for the photos. But it could be that you want to work with a publishing house and you say I will undertake the costs. So again that good faith would have to be in evidence because the worst is you go with a publisher you don’t like and then the publisher asks you to pay everything and you end up feeling very cheated, then that’s not even a good arrangement, not to say a contract.

 

Jee Leong: Right, thank you. Now I think we’ll move on to the next group of questions about marketing and distribution. Here’s a question about print runs. How are print runs decided and do they vary across genres? And here I will fold in Zainon’s question, she’s asking about young adult novels: Is 1000 copies for the first print run of a young adult novel standard?

 

Kah Gay: I think Zainon mentioned 1000 copies. So I think genres, they are tied to market, meaning the readership numbers. And it’s specific to the territory. So in Singapore, say for a poetry book, i remember Jerrold we printed 500 copies for Intruder.

 

Jerrold: Yeah, there’s still 499 left, so please do support and buy the book.

 

Kah Gay: You turned this into a marketing session, well done! No, but there’s definitely not 499 copies, Jerrold, it’s 498 copies. So well, I think for poetry books typically the numbers would be about 500, for a novel it could be even 500 to 1000, depending on the kind of marketing we can imagine for the author. And I use these words very creatively in the sense, imagining, because marketing is also about belief, and the author and marketing team must be aligned. So actually that’s the magic of publishing, which I want to bring a bit into this conversation. Because talking about contracts and all, it makes me feel very shrivelled and tired sometimes because it’s so defensive, but we have to do it, because you may come into a situation which is not defined, and that’s why we need lawyers like Jerrold.

So this is the most important thing I feel, that when the team and the author are aligned, magic can happen, then the print run, we will say let’s go for even more. So it is actually wonderful if the author can feel inspired by a publisher to give their best, and then it will affect the print run, seriously, because the team has that belief in you. But if you come into an agreement not liking the publisher, it’s very likely the publisher will lose certain confidence, and it will also affect the print run. So the standard is maybe there, 500 for poetry, 1000 for novels, but then it also can be affected by such, I would say very human, factors.

 

Jee Leong: Sorry, Kah Gay, did you mention also for young adult fiction?

 

Kah Gay: YA novels, it depends on the subject matter. Because I find that the kind of young adult novels that we have worked with before it maybe sold in the end about 800 copies. But I don’t think it would have happened with another book, so it may be less than that. So it’s not very easy to say… so Zainon, sorry, we can’t really tell until we see the manuscript also.

 

Jee Leong: She’s just elaborated by saying it’s a young adult novel and is historical fiction. Kim, is any bell ringing?

 

Kim: We don’t do young adult as yet, maybe one day we’ll find a great young adult manuscript but we haven’t, so I don't have any expertise on that.

 

Jee Leong: And Gaudy Boy doesn't do print runs as well, because our books are printed on print-on-demand platforms, Ingram in the US, Page to Print in Singapore. So in other words when an order from a customer goes in, the books are then printed on the spot and delivered to you. That actually saves Gaudy Boy warehouse costs.

That’s a whole other thing that you have to deal with Kah Gay, I don't know how you do it.

 

Kah Gay: My colleagues do it, that’s how. But Zainon, I think historical fiction for young adults, it’s also the styling of it. I remember talking to some authors that were very clear about their vision, but their vision entails the reader to take a step out of their comfort zone, so that means that it may not be immediately accessible. So in that instance the publisher may have to rethink the print run. But when a publisher commits to publishing you, typically it’s already a vote of confidence I would say, unless it’s a weird Stockholm Syndrome thing going on, which I hope not, but it is really a mutual agreement. So hopefully the print run reflects that mutual trust as well, so that’s what I can say at the least.

 

Jee Leong: So here’s a question talking about marketing, how we’re going to sell the books. The question that came in was: What are fair marketing and promotional terms in the contract? Which I take to mean, how much can an author expect a publisher to market and promote their work?

 

Kim: I mean, I’m not sure if I’m answering this question directly, because it’s so general, but I wondered if this ties in with Hari’s question in terms of publicity, marketing, but in terms of publicity, how much creative input/influence does an author have on the work’s marketing? Does the publisher call the shots in the department or is it a consensus-based deal? At least for Gaudy Boy we have language in the contract, a publicity clause that states—and once again it’s kind of dry and cut thing, it states we want to be able to use the author’s likeness to market the book, we want to be able to use an excerpt, x amount of words in a journal or something to help promote the book and create buzz. But what isn’t actually stipulated but that we discuss with the authors outside of the contract as well would be how to work together to market and publicise the book.

And like Kah Gay said, once there is alignment there, where the publisher and the author would meet, share ideas over email, whatever it is, on how to market the book, and if there’s an alignment then the magic can really happen, where the author has all these leads, I’m going to pursue them, the publisher has industry leads, they’re going to pursue them, they’re working together. So at least for Gaudy Boy we do really want our authors to be exactly like Hari said, equally in. I think it is very difficult for a publisher to just take the marketing role and run with it and the author just sits at home and doesn’t do much as well, because you are the proponent of the book and the image and voice of the book, so the publisher would also want to rely a lot on your input and your efforts and your voice. At least that’s how it is for Gaudy Boy.

I don't know if there are other publishing companies that are like no, we want to do everything ourselves. I’m not sure I've ever come across that. I feel like at least right now a lot of publishing companies are expecting and asking their authors to put in the work, especially if let’s say the author has a huge social media following, some of the bigger publishing houses, that’s something a publisher really looks to and wants the author to be a proponent of.

 

Jee Leong: Kim, if I can follow up very quickly what you were saying, do you see now in US publishers, because that’s the scene you’re most familiar with, now kind of insisting or encouraging for their authors to have for example professional looking author websites. Do they now require authors to have that, or require authors to have Instagram accounts, or Twitter accounts and things like that? Do you see that actually becoming a trend?

 

Kim: For the bigger publishers I think so. I don't think it’s in contract, I don't think they have language that says you need this account, but I think it’s very much the expectation and very much also colours in, for bigger companies, affect whether they accept the manuscript. If they see this is a great work, but the following count is eh, I’m not sure if this author can market themselves, it is something that possibly affects the decision. And it’s something that I think smaller indie presses want to avoid; we are about the work, we are not about the author’s followers, we want to stay true to that and I think we tried our best to do… that’s why we don’t have these requirements. But as a trend, I think that’s definitely what you see in the platformed books, in the books that are getting all the marketing and all the attention.

 

Jee Leong: Yeah, and also about what a publisher can do for a book, would you like to share something about what Gaudy Boy puts aside? Its budget for awards and book launches?

 

Kim: So for Gaudy Boy, we have about a $600 budget for marketing and publicity and awards, and basically what we do is we give the author an author questionnaire kind of asking them what their vision for the book is, if they have any leads they want to share with us, basically asking them for their marketing vision. We take the author questionnaire, we discuss it as a team, and then we reach out to media, we reach out to academic institutions to see if they want to carry the book, we plan a book launch, whether it’s in person or on Zoom because of Covid, and then we also submit the book to awards, we research awards, we figure out what fits the book, and we get the word out as well in that way. So we do a lot of the work as well, but that also comes from the author’s author questionnaire, which forms the basis of our marketing plan.

 

Jee Leong: Thank you, Kim. Kah Gay you want to talk about Ethos?

 

Kah Gay: I think what I noticed—a very useful difference to point out is that in our contract we don’t really have a marketing clause, and that’s more historical reasons. The fact is that when my forebears started publishing, they were just, let’s make the book, and then everybody was just happy, and the marketing side was actually a secondary concern. They were doing things out there, but it was not an active concern. So our contract today still doesn’t have a marketing clause, and I think it’s a very important point to note that even if something is not in the contract, it doesn't mean it will not be done. But when we should put something into the contract is a question that the publisher needs to ask. For us we do very similar things like what Gaudy Boy is saying, but it’s not in the contract.

The questionnaire, my colleagues do that, and then they run a marketing campaign, preorders leading to the launch, post-launch events, things like that. But it’s not really stipulated in the contract. If you ask me if we would want to do that, I’m not sure. Because sometimes I think I want to reduce the number of clauses in the contract and slowly over time make it streamlined so when an author looks at it it’s not scary, because it looks really scary, a contract sometimes, but how do we make it fair, firm, and still not scary? So adding a clause to me, is it going to change how we work? Not really. So I'm not sure if we’re going to add that clause, but I totally respect what Gaudy Boy has done, because it adds certainty. That’s why I still think that even after a session like this and many more sessions like this, it may be that you still see different contracts, because there are so many different ways of thinking about how to do good work and enshrine that work in a contract.

 

Kim: Yeah, definitely. I want to quickly add on to what Kah Gay said also, just in general, and I don't know if this actually applies across the board, but just for me, if I see a contract that’s really long and really wordy, that automatically is already kind of a red flag. Again it’s very general, I don't know if this applies to everyone, but it just seems that if you can simplify and streamline your contract and say everything in succinct words, you want to be wary of 15-page contracts, or however many they would be.

 

Kah Gay: Luckily ours is less than 15 pages.

 

Kim: I actually didn’t count the pages in our contract so maybe the number is wrong. But basically, yeah.

 

Jee Leong: Right, thank you. I just want to very quickly clarify what Kim said about Gaudy Boy, and that what is in the contract is really things like the right to use the author’s image, and excerpting, things like that. The other things that Kim mentioned like the author questionnaire and things like that; what we have done is that instead of putting it in a contract—and we agree with Kah Gay that it seems very cut-and-dry when it’s put into the contract—instead of putting that into the contract we’ve actually put it in what we call a love letter to our authors. Which is our way of telling them all the various ways that may not be specified in the contract, but all the various ways in which we would support the author, in promoting and marketing their book, and all the various ways too the author can actually help in that promoting and marketing that book. So it seems less daunting because it’s not in legal language, but actually put in a separate document. Thank you.

We have a question here, quite specific, from Ruchika in the chat: If an author reads from their book at an event not affiliated with the book’s marketing plan, presumably the author has found this reading themselves, and not organised by the publisher, is there a reading fee? And is this covered in the contract?

 

Kah Gay: I see. So in a way this question is can the author get paid for doing an event that is not organised by the publisher. And I don’t think we have such a clause, and I don't know whether we will want to standardise such a clause, because it will be very prohibitive if you’re a very popular author; it’s very scary to sign you on already because we will be not sure whether we can take you on. So I would say that if you want and envision such a contract, it will mean that it will kind of attract certain types of publishers, I would say, who are also able to cover that. I’m not really sure if there’s such a term in most contracts, to be honest. I’m not sure.

 

Jee Leong: Yeah. I would say that most publishers would not pay for events that are not organised by publishers. But perhaps you can actually look to the event organiser to pay you for reading. More and more I think in terms of professionalisation of the literary industry people should be paid for their work, so they should not have to be doing a reading without getting paid for it. Because time, talent and effort are actually involved in such events.

 

Jerrold: Just to add to that very quickly, it stems from the nature of the relationship between publisher and writer. So I think we’re talking about assigning just publishing rights, not transferring copyrights, to the publisher, so the publisher is fundamentally responsible for bringing that work to which you hold copyright into the world. But you’re not by virtue of that contract an employee of that publisher or an agent of that publisher and you are still the author of the work. So it’s not like you’re no longer responsible for it.

And i think as writers it’s important for us to be responsible for our work and to hold certain rights that shouldn’t be assigned to anyone else, but because of this nature of relationship, it wouldn’t make sense for the publishers to pay us for every event that we do when we are reading from the work that’s being published by them, and it’s in both of our interests not just the publisher’s interests, for writers to go out and sell their work and appear at festivals, etc. So in that sense I guess, and if we think about, again, a capitalist ideology of what money represents, it represents some sort of return for service, we’re not giving the publisher a service if we read from our own work, because we are directly benefiting from that exposure and that marketing as well.

 

Jee Leong: Thank you so much Jerrold for saying that. Let’s move on to another question in the chat, which is from Gabriel Oh: If the author wishes to be published under a pen name, will the contract be made under a pen name or the author’s real name, and are there any other considerations in such circumstances, assuming the author prefers to be referred to by their pen name?

 

Kah Gay: I think as a legal contact it has to be made out in the legal name, it’s just that you can have a clause in the contract stipulating the pseudonym to be published. And also you don’t want to sign a contract under a pseudonym because it means that you’re not actually bound by the contract and it means that the benefits of the contract cannot be given to you as well.

 

Jee Leong: Thank you. And then there’s another question from Hanis below in the same chat: if an author changes publisher who produced the manuscript, cover design etc to another publisher or self-publishes, do they get the files to reprint, or do they have to make a new one of their own?

 

Kah Gay: Technically and legally, you have to have that file done by the new publisher. Also because the publisher is responsible for the work done on the manuscript and if it’s circulated out there and people ascribe whether good or bad things to that republished manuscript, there should be a very clean cut from the old publisher to the new publisher, so reusing our files doesn’t establish that clean cut, I think that is from a good sense point of view.

 

Jee Leong: Alright, thank you. Now we’ve more or less tackled all the questions about payments as well as marketing and distribution. Let’s talk about indemnity clauses, because I think that's a big topic for some of us here. What are your standard indemnity clauses and why do you have such clauses?

 

Kah Gay: The main indemnity that we ask of the author—I mentioned to you at the start of this session that we also had a clause indemnifying us from damages due to maybe content that are seen to be libellous, defamatory things like that, but we found that to be something that we inherited and we continued, in good faith we have never exercised that clause. So after a while we thought that we are behaving a bit like a government where they leave a law in and don’t use it, so we don’t really want to do that, so we took that out, but what remains is we still have a no plagiarism (clause), I think that is a very basic thing. If you have copied and you didn’t declare it to us, and it becomes a problem later and we are sued for it, we cannot handle that. So I think that is a very clear-cut indemnity that we ask for.

 

Jee Leong: Kim, you want to take that as well?

 

Kim: Sure. This discussion on indemnity actually—I’m really glad that we had this session for us, because I think that this is something that is alerting us to perhaps the need to revise and take a look at what our indemnity clause is. We’re a small team and we don’t have our own team of legal advisors, so reading a clause that we have never also practised in good faith—I thought oh you know it’s great, we can just leave it in, but it’s right, if let’s say an indemnity clause seems to cover everything and not specify certain conditions for the coverage, it can be very risky to the author. In an indemnity clause if you want to be specific you want to make sure it is applied only when any suits that are filed against—you do go through and it has been proven that the author has indeed breached their warranties, has indeed breached the promise that they did declare in the contract.

There are some indemnity clauses out there that don’t even specify, so any suit that is filed even if nothing was proven or it didn’t even go to court, they can just use this clause to cover any financial damages they received and charge it to the author, which of course is not fair. So you know, when you look at those clauses you want to make sure that it is specific and fair to the author and also to the publisher, who does need to have some language to cover themselves in the case of a serious plagiarism case. So in that situation, for us Gaudy Boy we would want to take a closer look at our indemnity clause and see if there are any ways that we can be more specific in the language so that we are fair to the authors.

 

Kah Gay: I was thinking that maybe it would be a fair principle to apply where the author should not be responsible for what is beyond the author’s control, but this is a very generic principle. So then we have to apply this principle in a very specific way to a very specific context, say for a single-author work, for anthologies. So the four of us we actually had a chat before this, and we were saying that if say an author is asked to be responsible for the collection of works that he or she is a part of, then that doesn't make sense, because the author only has contributed one work, so the author cannot be responsible for the entire collection, so things like that I would say is not fair.

 

Jee Leong: Jerrold, you want to come in on this question?

 

Jerrold: I think Kim and Kah Gay really hit the nail on the head, it’s all about control for me. So I ask myself whether, does the indemnity cover a set of circumstances which I have control over? So if it’s the fact that I claim to be the author and owner of the work but actually I’m not, that’s something I have control over and I would be open to other types of illegal behaviours, not just in a publishing contract alone, but it’s illegal to hold yourself out to be owning something you don’t. So that’s something that we’ve got control over, it’s fine if we have an indemnity for it, but say in this specific example that Kah Gay mentioned about the fact that if I’m just one of the contributing writers to an anthology then it doesn’t make sense for me to indemnify the publisher for the works that aren’t mine in the anthology, and that’s because I don’t have any control over—it’s impossible—it’s not appropriate for one writer to interrogate the rest of the contributing writers to say, oh are you actually the writer of that work. So I think, indemnities, generally resistant to them, but where they make sense, i.e. they stem from a set of circumstances to which we’ve got control over, I think it’s entirely appropriate.

And if we put ourselves in the publisher’s shoes as well, they would definitely want to—if I were a publisher I would want to be indemnified against any loss for some rogue writer claiming that they’ve copyrighted their work but actually they don’t. And we’ve seen that in the past as well in Singapore, I think there are a couple of rogue ones claiming that they’ve authored certain works which were actually plagiarised. So if you’re publishing those works obviously you wouldn’t want your bank account to be dry just because an author has been fraudulent.

 

Jee Leong: Yeah. right, Thank you so much for that. We’re coming almost to two hours. I want to thank you, our panellists, for your great generosity in giving us your time as well as all your thoughts. So maybe we can just cover a couple very straightforward questions that just came in prior to the event, so that people can have their questions answered, and then we can actually wrap up. So here are a couple, and anybody can just take them. What is the timeline between signing a contract and releasing the book? Anybody.

 

Kah Gay: For us it could be between one to even two years, depending on the complexity of the work required on editing and maybe some other design factors.

 

Kim: About the same time, yes. Usually we try to be quicker with that, the work coming out a year from now, but in our contract we do stipulate, I believe, 18 months from receiving the manuscript to publication. But also sometimes it may not be in the publisher’s interest to delay, they want to get the book out as soon as possible and get it sold. So it really depends; once again the language is just there to cover a scenario in which there is a delay, but typically it doesn't mean that 18 months is in the contract that means the publisher is going to wait until the 18th month to do it.

 

Jee Leong: Okay, thank you very much. And here is another very straightforward question I think: Are authors supposed to pay a publishing house for publishing their work?

 

Kah Gay: That is another model of publishing, I believe Gaudy Boy and Ethos we don’t do that. But if you go to a commercial publisher who does commission works, then there is that kind of arrangement. And I believe there is also an in-between, I can’t remember the term for that, where it’s cost-sharing. But for Ethos and Gaudy Boy we all are similar, we don’t (do this).

 

Jee Leong: Right, I believe we have actually answered most of the questions that you have sent us. Please pardon us if we didn’t manage to quite get to your question, but it’s been two hours and it’s been a very long session. Thank you everyone who is still here and staying with us, and we really hope that this session has proved to be informative and useful to you, but we especially want to thank our panellists for their participation in this panel, really out of goodwill, because they have so much knowledge to share and they’ve actually shared it generously, so thank you very much Kah Gay, Ethos Books for sharing your expertise and the spirit behind your publishing house. Thank you so much Kimberley, for being so patient with explaining every single detail and exceptions and so forth and being so thoughtful about possibilities and eventualities. And thank you so much Jerrold, really very illuminating legal perspective. Again and again you helped us to see things as a lawyer would. We want to actually have that, of course, in an event for publishing contracts. So thank you everybody… panellists, have any last words you want to say to our guests?

 

Kah Gay: To you, thank you, Jee Leong; actually, this session came about because Jee sent an email to Ethos and said we have to do this because it’s a good time to show that there’s goodwill in our community as well. And I also think that my teammates were very supportive in this process, so thank you to my colleagues as well. So Jee, Kim, Jerrold, wow, I actually thought I enjoyed that more than I expected.

 

Jee Leong: I echo what you said, Kah Gay, we really do want to foster goodwill within the community. There is a lot of goodwill within the community and a lot of desire to actually support and encourage one another, and this session is just one of the many ways.

Right, we’re gonna bid everybody farewell now, and thank you so much for being with us. Goodbye for now.