Reflections on negotiating a contract 1: Leverage and the power to negotiate

Reposted from the TAAOnline Blog

When I wrote my last series of posts, I was waiting to hear whether a publisher would offer me a contract for my book for graduate students. The publisher—Routledge—did make an offer, marking the pleasant culmination of the 10+ month proposal process, and I could begin to look forward to publication, most likely in 2020 of my book titled Literature Review and Research Design: A Guide to Effective Research Practice. Getting the offer was a great milestone, but it didn’t put an end to the larger process of getting published. The next phase began with the question of whether to accept the offered contract and whether and how to negotiate for changes. As with my previous series of posts, I offer the reflections of a relative novice, not the advice of an expert.

With the offer came the question of contractual terms and negotiating a contract. The initial offer came with basic terms—royalty rates and some other points. A few days later, it was followed by the formal contract which brought a large number of additional issues into play. The excitement of getting the contract offer was significant, but not so exciting that I would just accept any contract, either. Getting an offer increases my confidence in my book. Although I don’t want to look for a new publisher to make an offer, nor do I want to self-publish again, they’re real options rather than taking what I perceive to be a bad contract. Unfortunately, I’m not entirely sure what makes a good or bad contract.

Once before, I was involved in negotiating a publication contract, also with Routledge, when they published the scholarly book of which I was second author. With one contract already under my belt, I had  slightly more experience than none at all. I knew what a Routledge contract looked like ten years ago, and not much more. For that previous contract, I had simply followed the lead of my first author, and he wasn’t particularly concerned with details, so we basically accepted the contract they offered. But this time, I had no first author to follow; this time, I was in charge, with the corresponding privileges and responsibilities, and the anxieties, too. Being a careful and cautious person, dealing with the myriad specific issues covered in a contract was/is quite intimidating.

The contract I received was about 13 pages long, with about 25 main clauses, many of which had several subclauses. I read through it all carefully. Some of it was obvious, some less so. Some of it seemed totally reasonable, some less so. Not surprisingly, I suppose, it was not all exactly as I would have best liked it. But to what extent could I negotiate changes? Did I have any power to negotiate, or was I simply at the mercy of the publisher’s offer? I decided I had enough power to at least negotiate a little but not very aggressively.

Although I was not desperate to sign, I really didn’t want to get back into the process of sending out proposals. This was a strong incentive to accept their terms. The fact that I would prefer to work with Routledge (a preference that might be naive) was also incentive. Furthermore, I did not perceive myself has having a great deal of leverage: I am not already famous; I do not have any prestige stemming from institutional affiliation. These considerations weighed in favor of just accepting their terms without negotiation for fear of losing the contract.

Balanced against that was my confidence in the quality of my work, and in my ability to either find another publisher or self-publish. Essentially, as I saw it, I had only the leverage of the book itself, plus, perhaps, a little added because the editor had invested her effort in it. It is a strong book, I believe, and good enough that the editor had invested her time and budget to look at it, get reviews, and promote it for a contract—for that matter, she used the time of the publishers, too, when she presented it as a possible project. So, whatever general weakness in position I suffered as an unknown, I did have the book going for me. I focused on this bit of negotiating leverage for emotional support because it was better than having nothing.

For a large number of clauses, I had questions or concerns, including those that covered royalties, copyright infringement, right to future editions, permissions, and the book title. Many of these seemed to me like they favored the publisher more than I felt appropriate, but it seems to me that most contracts I sign or agree to are filled with unavoidable unpleasantness, and can’t be changed. (For example, the Terms of Service contracts that I accept on myriad websites don’t leave any room for negotiation, must be accepted to use the service, and contain all sorts of unpleasant clauses). For this contract, I felt like I did have the opportunity to negotiate because it was a contract written specifically for me. And so, I asked my editor lots of questions as a way of approaching possible negotiation.

If there is an overall theme to this series of posts, it would be that it doesn’t hurt to ask. I asked a lot of questions and in response, Routledge made a few changes in my favor.

Because of my appreciation of the value of the contract and the desire to avoid alienating Routledge, I asked with courtesy and without contention. Realistically, I was mostly ready to accept what they had offered, and didn’t expect that they would make changes in my favor. But, to protect my own interests, I asked. And it was a contract that I could actually negotiate. In this case, I did have the chance to negotiate; I decided I ought to use it.

On the general point of having negotiating leverage, it is worth keeping in mind that even if you have no leverage beyond that of your book, you do have that. You didn’t get a contract offer unless the publisher had some hopes it could sell; they may be willing to make some concessions to keep the rights.

In my second post in this series, “Reflections on Negotiating a Contract 2: Myriad Details”, I will consider the wide variety of issues that came up as I read my contract.