Frederick George Afflalo.

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after provided and calculated, and according to the terms
hereinafter contained/

The first clause of the agreement will then provide that
die publishers shall produce the work in one volume or
more, and shall warehouse the bound and quire stock,
and shall deliver the usual press copies, and shall accoimt
to the' author for every copy produced, annually or seitd-
^innuaUy, as mav be agreed.

The second clause will deal with the method of calcu-



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398 THE LITERARY YEAR-BOOK [partii.

lating the sale proceeds. Copies sold in the United
Kingdom at the regular trade prices are most commonly
accounted for to the author at two-thirds of the full pub-
lished price, thirteen copies being reckoned as twelve,
less a discount of lo per cent. This calculation is reached
by taking the lowest prices charged by the publishers
to wholesale booksellers and exporters. We may remark
here, in reference to this form of agreement, as well as
to the three others, that the words ' thirteen copies being
reckoned as twelve ' frequently prove a stumbling-block to
authors and to the partisans of authors' rights. It is equiva-
lent, of course, to a loss to the author of about eight and
a quarter copies of his book in every hundred copies sold,
and in making a commission-agreement especially, the
author may feel disposed to resent this apparent extor-
tion on the part of the publishers. On the other hand, the
publisher says that, in a very large number of cases, he has
to supply the trade — i.e,, booksellers and exporters — on
these terms. It would be especially unfair to him in a
commission-agreement that be should account to the author
for copies as sold which he has actually supplied as odd or
thirteenth copies ; in a royalty-agreement, where lai^ge sales
are anticipated, he might consent to waive the point in the
author's mvour.

A second section of Clause i will provide that stereo-
type plates and copies sold for the American, Indian,
and Colonial markets at reduced prices will be calcu-
lated at the amounts actually received for them, and
the same method of calculation will apply to copies
sold in the United Kingdom or elsewhere by auction
or privately to a dealer at reduced prices, or by way
of remainder. On the other hand, something depends
on the class of book to be sold ; single copies, or less than
half a dozen, may be most in demand, and probably no
publisher would object to modify the clause if the circum-
stances of the case seemed to require it.

The further clauses necessary for such an agreement
commonly run as follows. Our comments, where neces*
sary, are made in smaller type :

' 3- That the Publishers shall not make any charges
for their expenses of bookings packings telegrams an(|



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PART II.] LAW AND LETTERS 399

postages or any other ordinary publishing expenses in
connection with the sale of the said book and that only
the actual postages on Provincial and Foreign Press
Copies (where paid) shall be charged.

* 4. That the Copyright and Plant of the book shall be
the property of the Author.

* 5. That the Author shall not be deprived of his share
of the sale-proceeds of any copies sold the purchase money
whereof shall not be paid to the Publishers.

* 6. That the manner of Production Publication Sale
and Advertisement of the said work shall in the absence
of express agreement to the contrary lie wholly within the
discretion of the Publishers.

This description covers the choice of type, selection of binding,
arrangements with the trade, and suggestions as to methods of pushing
the sale. The author should make up his mind very carefully before-
hand how far he wishes to have a voice in these matters.

•7. That the Author shall give the Publishers six
calendar months' notice in writing before he remove the
publication of the book from them.

* 8. That the Publishers shall be entitled to a commission
of ten per centum on all sale proceeds and to a commission
of five per centum on all advertisements of the book put
out by them but that such advertisements shall invariably
be charged at the scale prices of the respective papers and
journals.

* 9. That the Publishers shall annually make up as at
the thirtieth of June the accounts of each year and shall
render the same to the Author within three months there-
from and shall at the same time pay over any balance
which may be found due to the Author.

It is better that these accounts should be rendered semi-annually,
but we print the clause in the form in which it is commonly found.

* 10. That the Publishers' Day-books and Ledgers
shall be open to the inspection of the Author either, per-
sonally or by agent at any reasonable time after niotice
given in ynriting. ■ . i

* II. That the Author shall be responsible for any
action of Libel or of Infringement of Copyright arising out
of the publication of the said work and shall indemnify



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400 THE LITERARY YEAR-BOOK [part ii.

and reimburse the Publishers for any damages cost or
charges which they may reasonably incur or be called
upon to pay in respect thereof.

' 12. That the Author shall be entitled on publication
of the book to twelve copies without any charge on the
part of the Publishers and to any finrther copies required
at two-thirds the published price (thirteen copies being
reckoned as twelve) subject to a further discount of ten
per centum (if cash accompany the order) such further
copies to appear as sales in the Publishers' accounts.'

The author is obvionsly entitled to buy his books at the lowest trade
tenns.

Sale of Copyright

Next in order we may take the sale-of-copyright agree-
ment, in which the author is paid for his work on the book
by a lump sum for the cop5rright. Such an agreement
conveys the copyright of the book, and vests it in the
publisher on publication. There is usually a time-clause
as to the date at which the complete manuscript is to be
delivered to the publisher, and there is likewise a clause
prohibiting the author from writing or publishing any
similar book on the same subject. This clause must be
taken for what it is worth. From our foregoing exposi-
tion of the law governing copyright, it will readily be
gathered that it is difficult to state precisely what degree
of similarity between any two books constitutes an in-
fringement by the one of the copyright of the other. If
author and publisher signing this clause have reason to
mistrust each other, the points of hkeness covered by the
prohibition should be expressly specified, a conoition
which can readily be fulfilled in some instances, such as
those of books of a highly t^hnical nature, where, indeed,
the clause acquires real significance.

The most important clause in such an agreement from
the author's point of view, and to a less extent from the
puUisher'sj is the sum to be paid in purchase of the book
and rights therein. It is quite impc^blc for us to give
information of any value whatsoever as a guide to authors
in this matter. The opinion may be hasarded^ however^
that the multiplication of would-be authors during the



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PART iij LAW AND LETTERS 40I

last fifteen or twenty years has created a kind of * slump '
in certain markets. Thus, the prizes ofifered this year
(3^262 los. and jf 105 respectively) for novek by new writers
may tend further to depress the fiction market, and
aspirants will find this depression reigning in what pub-
lishers call juveniles. Stories of adventure and stories of a
Stmday-school or goody-goody t5rpe for girls or children —
a class which otir indexer of authors has found particularly
hard to define — command, at this moment, we believe,
very low prices, especially from new authors. We are
probably not far from the mark in conjecturing that a
first offer for such a work would vary from £15 to £2$ or
^30. Established writers are, of course, better paid.
But in no case is it possible to give anything like even an
approximate scale of prices for literary wares. Each book
offered for sale must be judged on its merits, and in agree-
ments of this kind the author, if inexperienced, would pro-
bably do well to invoke the opinion of a literary agent
before consenting to part with his copjrright for a definite
sum of money.

Division of Profits

Thirdly, we come to the agreement on a profit-sharing
basis. In this case the publisher takes aU the risks and
cost of publication, either for a single edition of a stated
number of copies or for a stated numbet of editions and
for a stated time. If these statements are specified in
the agreement, it may be renewed at option at the time
of its natural termination. The essential clause of such
an agreement is, of course, that which deals with the
division of the net profits. The amount of these is reached
after deducting all the costs of production and publication,
including trade discounts, advertisements, and an allow-
ance for establishment expenses — i,e.y clerks' time and
other office convenieiices. It is obvious that an author
is very much at the mercy of his publisher in entering
upon such an agreement, for the establishment expenses,
proportionate costs of travelling, rent, warehousing, and so
lorth, as well as the calculation of trade discounts, are
wtreniely difficult in many instances and impossi1:4e in



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402 THE LITERARY YEAR-BOOK [part ii.

others to check. Yet, from the publisher's point of view,
these calculations form a considerable item. A simpler
way of dealing with them would be for the publisher to
state from his own knowledge the proportion borne by
establishment charges in his gross profits, and to apply
this scale to the particular book ; but this method presses
hardly on the publisher, as the costs of travelling, etc.,
in the case of a new book are higher than the average
based on the whole of his catalogue. Authors should
only enter upon a profit-sharing agreement with the utmost
caution, though it forms a very convenient arrangement
in the case of a book by more than one author. If
the publisher retains, say, one-third or one-half of the net
profits, the division of the remaining two-thirds or one-
half- between the several authors is a matter of simple
arithmetic.

Royalty Agreement

Fourthly, we come to the royalty agreement, which is
the commonest and in most instances the fairest method of
pubUcation. The essence of a royalty agreement is that
the author shall receive a certain sum in respect of every
copy of the book sold, and, plainly, the most important
part of such an agreement is to determine the amount of
the royalty to be paid. Some general considerations
sv^gest themselves at this point. First: It should be
fairly obvious that the publisher can afford to pay a
larger royalty as the price of the book increases. Taking
the commonest range of prices from 6d. to los. 6d., it is
clear that a lo per cent, royalty on a sixpenny book is an
almost impossible condition, whereas it would be an ex-
tremely small charge on a book published at los. 6d.
Three-fifths of a penny deducted from a book which may
be bought by the pubUc at 4j^d., and which is sold by the
publisher at any price between 3d. and 4d., is a far heavier
deduction than is. o|d. deducted from a book which
may be bought by the public at 7s. 10^., and for which
the publisher receives something over 6s. In the first
instance the publisher would have about 2j^d. out of
which to pay for the production of the book and his own
profits ; m the latter case he would have about 5s.



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PART II.] LAW AND LETTERS 403

Secondly : Royalties are paid to the author on the full
published price of the book. A 10 per cent, royalty on
a 2s. 6d. book is 3d. But the publisher receives only a
trade-price. On a 2s. 6d. net book he will receive, at the
b^t, 2s. idi, less certain discounts, and for a 2s. 6d. non-net
or ' ordinary ' book he will receive on an average about
IS. 6d. Accordingly, in pajdng 3d. to the author, and
calling it a 10 per cent, royalty, the publisher is really
paying about one-eighth of what he receives on the net
price, and about one-sixth of what he receives on the
ordinary price, or a I2j and i6§ per cent, royalty respec-
tively. In justice to publishers, it may be urged that the
author who is indined to cavil at the small figive 10 in
a royalty proposal is too frequently ignorant or oblivious
of the real facts of the case. Thirdly : In a royalty agree-
ment the publisher bears, as has been said, all the costs
of production, fle is accordingly considerably* out of
pocket by producing^ the. book, ajid even in favourable
circumstances he does not recoup his outlay till a thousand
copies of the book have been sold. Hence it follows
that perhaps the fairest form of royalty agreement is one
which provides for a graduated royalty. If the author
receives 10 per cent* on the published price of the first
thousand copies, he may fairly ask for I2| per cent, on
the publishra price of the i,ooist to the '2,000th copy,
by which time the publisher should also be makmg
his first profits, if the selling price of the book has been
fairly adjusted to its production expenses. And if the
published price can bear so heavy a deduction, the royalty
may then rise by 2^ per cent, per thousand copies to
20 per cent., which is equivalent, as has been shown
above, to a royalty of about 33 per cent., or a little more,
on the actual amount received by the publisher for each
copy.

Advance on Royalties

The last consideration to which we would direct the
particular attention of authors and publishers, in dealing
with a royalty-agreement, is that of a stipulated sum
to b^ handed over in advance of royalties. Such a clause
providing that a sun^ Y4suaUy from -^^20 upwards, ^ha}}



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404 THE LITERARY YEAR-BOOK [part ii.

be paid to the author by the publisher, either on delivery
of manuscript, or on the return of the last proof for |n:ess,
or on publKration, has become duite a common . demand
in recent times at the instance of literary agents or of tiie
authors whose interests they represent. At bottom it
amounts to nothing more than the author's borrowing
money without interest on a security in which the money-
lender has already invested capital, and, looked at from
this point of view, there is certainly some force, at least, in
the objections made by many reputable publishers to
such a transaction. The author's argument is that he
is always considerably out of time by his labour aa his
boc^, and that he is sometimes even out of pocket for the
expenses of typewriting and so forth, and that he ^lay
accordin^y not unreasonably ask tiiat a part of his future
profits shall be paid to him in advance. This plea is
tenaUe enough in the case of anthors of established reputa-
tion, and of books the profits of which are certam to
accrue, aod in such cases a moderate request of the
kind would probably meet with no serious opposition from
the publisheri But in the case of the large majority of
books, Hie total profits on which are not likely to ^i:ceed
a sum of between £50 and £100, and in the case of autiM>rs
whose names do not cany much weight with the reading
public, and' the pubUcation of whose work, liierefofe, is
speculative on the publisher's part, such a demand for a
loan without interest can only be supported by the fact
that publishers can be found to comply with it. If the
author has put his time into the book, the publisher is
prepared to put his money and the organized machinery
of his business, on which he depends for a livelihooa.
Both legitimately expect to reap tibe reward of their
investment in the profits that accrue in the future.

The above facts and figures should go far to correct
many interested misstatements. A mean must be found
between the author's faith in his own book and the pub-
lisher's willizigness to back it ; and the price of a book is,
accordingly, partly determined by the bargain struck
between the author and the publisher, ^ich it is the
agent's business to make as unfavourable to the publisher
as he can. If the author is content to back his own



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PART II,] LAW AND LETTERS 405

faith in his own book, in the sense of accepting a fair
royalty on a low price, without power of anticipation,
a publisher who likewise beUeves in the book — and no
other is likely to publish it — will similarly be willing to
fix the price within the reach of moderate purses, and
thus to recoup himself slowly for his outlay on plant,
advertisement, travelling, establishment, and on stock.
On the other hand, if, as mostly happens, the author's
estimate of sales has to be divided by a half, and if,
further, he insists on a large payment in advance of
loyalties, the publisher must either decline the book or
must publish it at a price which will bring him back his
money within a reasonable period — t.^., at a high price,
after which — as alwa}^ happens — a cheap 'popular'
edition becomes a wise speculation. This is the normal
course of the successful launching of new authors.
We now come tp the memorandum itself :



IIL MEMORANDUM OF AGREEMENT

AFTBR'Wbat has been said above, this memorandum does
not require -any lengthy donsideration, the wording of the
clauses being purely a technical matter after the principles
have been agpeed.

It opens with a preamble stating that * This Agreement
made ' on. such-and*-such a date * between ' so-and<-86
' PublisherB [and Exporters] of- for themr

selves their successors and assignees hereinafter called the
Publishers of the one part and ' so-and-so ' of
for him (her) self his (her), heirs executors administratoiis
and assignees hereinafter styled the Author of the other
part WUtmseik.'

The preamble gives us the essential parties— viz., pub-
KsbeT aid author — without further circumlocution. These
parties agree as to a sale or lease, of the author's property
to the publisher on certain terms and conditions. The
essence of the agreement follows the tedbnical word wi^
ness^h, coid a royalty agreement proceeds thus or to this
effect : • 'That in considcrationr that the copyright and
pliant including therein ' sudb foreign and Colonial rights



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4e)6 THE LITERARY YEAR-BOOK t^ART n.

of translation and reproduction as the author may arrange
to part with ' of the work to be written by the Author and
entitled provisionally ' so-and-so * shall forthwith belong
to and become the property of the Publishers, but subject
always to* a lien thereon for any sums due to the Author
by the Publishers for Royalties, the Publishers hereby
agree ' [this verb is governed in legal grammar by the first
conjunction that after witnesseth] to print publish adver-
tise and sell a first edition of ' so many * copies of the said
work and as many subsequent editions thereof as they may
think desirable and to pay to the Author a Royalty on the
sales as hereinafter provided.'

A few commas would improve the appearance of this
statement, but punctuation is taboo, as a rule, in such
doctmients. Otherwise, the points worthy of notice
are :

1. The stamp duty is reduced to 6d. by describing the
book as ' to be written,' and its title as * provisional.'

2. The nominal transfer of copyright — ^it i? conditioned
by the words ' subject always to a lien ' — is objected to by
many authors and their representatives. Safeguards
determining the agreement in certain events, such as
bankruptcy (cp. Mr. Justice Bigham's decision in the case
of Mr. Warwick Deeping last April), will reduce the
force of the objection if the publisher sets particular
store by the inclusion of the phrase. But he will commonly
be willing to consent to accept * the exclusive right of
printing ' in lieu of the copsnright. Should he demur to
this variation, and should the author genuinely prefer it —
in practice it has no real significance — ^the advice of an
intermediary should be sought.

3. ' Their successors and assignees.' We leave these
words as they stand in ordinary agreements. Their
expediency must be determined by tiie status of the
firm with which the author is negotiating. See above,
about bankruptcy. This is a difficult and, to some extent,
a delicate question, on which guidance should be sought in
cases of doubt and ignorance.

4. Foreign and colonial rights vary in value with the
nature of the book, and in some cases are nil. When con*
9id^able sales out of England are expected* the arrange-



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PART n-I LAW AND LETTERS 407

ments should be carefully discussed beforehand, and a
publisher selected who has facilities for distribution in other
countries. The import duty in the U.S.A. makes a profit-
able sale increasingly difficult, but, as it is cheaper to print
a large edition than a small, a part of the publisher's
profit lies in what he saves in his printer's bill. Trans-
lation rights, as a rule, fetch only smaU sums, as they
handicap the book with a preliminary fee to the translator
before uie ordmary production expenses b^in. Colonial
editions, as such, are very fast falling into disuse ; they
should carry a royalty proportionate to the selling price of
the book in that form.

5. If the author wishes to make stipulations as to ad-
vertisements, he must do so at this stage. Some firms
advertise much more extensively than others, who rely,
perhaps, on better ' travelling ' arrangements.

The memorandum now continues :

' And it is hereby further agreed

' I. That the Publishers shall :—

' (a) Produce the book in volume .

' (b) Warehouse the bound and cjuire stock.
* (c) DeUver the usual Press copies to the London
and Provincial JoumaLs.

See note 3 above.

' (d) Account annually to the Author for every
copy produced.'

Semi-annnal renditions are sometimes granted, if desired.

' 2. That the Author's Royalty shall be calculated in
manner following : —
' (a) As to copies sold in the United Kingdom at
the regular trade price, per

centum on the full published price there-
of, thirteen copies being reckoned as
twelve.

Comment on this clause is governed by the remarks in the fore-
going section on ' Author, Publisher, and Agent.' Should a gradu-
ated royalty be agreed, as recommended, the clause woula run :
so much ' per cent, on the full pubUshed price of the first thousand'



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4o8 THE LITERARY YEAR-BOOK [part n.

(or so many) ' copies thereof.' so much ' per cent, on that of the
next ' so many ' copies thereof/ so much ' per cent, on that of
the next' so many 'copies thereof/ and so on, '13 copies being
reckoned as 12/

' (b) As to stereotype plates and copies sold
for the American^ Indian, and G>lonial
markets at reduced prices,
per centum on the . amount actually
received in respect th^eof.

Subject to discussion. Ten per cent, on the actual receipts is
often quite fair to the author, as books are sold to the American
market at not much above cost price of production. The oondi-
tions ruling the transaction in question should be examined on their

merits.

' (c) As to copies sold in the United Kingdom
by auction, or privately to a dealer at
reduced prices, or by way of remainder,
per centum on the amount
actually received in respect thereof, but
the Author shall alwas^s have the option
of purchasing such remainders from the
Publisher at their actual cost of pro-
duction.'

This clause is not as tautological as it sounds. The remaining
copies of an old edition may be sold at reduced prices, though the
book itself is not ' remaindered/ as special trade reasons may inter-
vene. Five or ten per cent, is quite a fair proportion to the author.
as a rule. Note that the remainder-clause is essential in an author's
interest. FaiUng the provision for the author's share in copies
sold ' by way of remainder/ it has recently been held in law tnat
the publisher is not liable to pay any royalty on such sales {Farmer
V. Lane : Mr. Heinemann's- evidence for the defendants). • The
injustice of this decision in equity is clear, and the author should see
that he is protected. The clause should further invariably provide
for the first offer of the ' remainder ' to he made to the author.

The remajyiing causes of the memorandum are as follows,
apd do not call for special comment beyond what has been
given in advance ;

' 3. That bad debts shall be the charge of the Publishers,
the Author not being deprived of lany .Royalty on copies
sold by reason of the sale<-proceeds not having been paid



Online LibraryFrederick George AfflaloThe Literary year book → online text (page 41 of 83)