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© Copyright
2001 Lloyd L. Rich
Introduction
One of the
more frequently overlooked clauses in the publishing contract is the
"revisions" clause. Although this clause may not be necessary for
every title that is published, the failure to include a revisions clause in
contracts for particular titles or to understand the implications of the
specific clause could have significant ramifications for the publisher and
author.
The primary
purpose for the revisions clause is to keep the particular title updated with
current and timely changes that affect the content of the work. As a general
rule a revisions clause is essential for professional and academic works but is
usually not necessary for works of fiction. With the growing use of content
from original print-based works for electronic products, an appropriate
revision clause to satisfy currency demands has increased in importance.
As with
almost any clause that is included in the publishing contract it is important that
the author and publisher both realize that the specific contract language that
applies for a particular title may need to be negotiated based upon the
particular circumstances surrounding the publication of that title.
One issue
that should be addressed in the revisions clause is the difference, if any,
between a revision of an existing title and a new edition of that title. Some
publishers want to contractually treat revisions and new editions the same
thing while other publishers will treat revisions as only those that consist of
minimal changes to the original text while a new edition consists of
significant changes. In the latter case the publisher will treat the new
edition as an entirely new work that requires a new publishing contract for
each new edition.
The
revisions clause should also address the following issues: (1) who determines
that a revision is necessary, (2) the time period and frequency during which
revisions are necessary, (3) who controls the selection of the person doing the
revision, (4) compensation for the author with respect to the revision, (5)
payment terms for the person doing the revision, and (6) author and reviser
credit for the revision. The following revisions clause is an example of how
these issues may be addressed in the publishing contract.
"It is
understood and agreed that if, at any time during the term of this Agreement in
the opinion of the Publisher, the Work needs revision, the Author will revise
the Work or supply new matter that may, in the judgment of the Publisher, be
needed to keep the Work up to date. The provisions of this Agreement shall
apply to each revision of the Work by the Author as though that revision were
the Work being published for the first time under this Agreement, except that
the manuscript will be delivered to the Publisher in a reasonable time from the
Publisher's request for such revision or at such other time as mutually agreed
upon in writing by the parties. In the event of the Author's death or inability
or unwillingness to revise the Work or to supply new matter when required or if
the revision is unacceptable to the Publisher, the Publisher may procure other
persons to revise the Work or to supply new matter. The Publisher may pay
compensation to such persons in the form of cash or a royalty; such
compensation at Publisher's sole discretion will be reimbursed to Publisher or
charged against the royalties accruing to the Author hereunder. If the Author
does not make such revision, the Publisher may so evidence this fact in such revised
Work."
The
remainder of this article will discuss the specific issues that are addressed
in this clause and also provide additional insight into other matters that may
need to be addressed in the revisions clause.
Analysis Of
The Revisions Clause
"It is
understood and agreed that if, at any time during the term of this Agreement in
the opinion of the Publisher, the Work needs revision, the Author will revise
the Work or supply new matter that may, in the judgment of the Publisher, be
needed to keep the Work up to date."
This clause
provides that revisions and frequency of revisions are solely at the
publisher's discretion and the clause does not distinguish between revisions
and new editions; therefore, any revision of the original text falls under the
terms of this clause. Some other issues that may need to be addressed as they
relate to this section of the revisions clause include the following:
A
restriction on the frequency or number of times that an author is required to
revise the work.
A
restriction that the author will not be required to revise the work until a
specified time period has elapsed from the publication of the work or from any
subsequent revision.
A
commitment that the publisher agrees to revise the work within a particular
time period or on a specified schedule.
A statement
that a revision only becomes necessary when both parties mutually agree that a
revision is required. A mediation or arbitration clause providing for a
non-interested third party decision on this matter could be included in the
contract to eliminate the possibility of a deadlock regarding a revision.
"The
provisions of this Agreement shall apply to each revision of the Work by the
Author as though that revision were the Work being published for the first time
under this Agreement, except that the manuscript will be delivered to the
Publisher in a reasonable time from the Publisher's request for such revision
or at such other time as mutually agreed upon in writing by the parties."
The
publisher's objective of this clause is to ensure that the basic terms of the
existing agreement, except for manuscript delivery, apply to all future
revisions of the work and that a new contract is not required to handle the
revision. This clause may be particularly important with respect to an author's
compensation especially where the author's royalty compensation is based upon
an escalation clause whereupon the royalty percentage increases as the number
of copies sold of the work increases. In such an instance, once the work has
been revised the royalty percentage rolls back to the lowest level in the
agreement. Some other issues that may need to be addressed as they relate to
this section of the revisions clause include the following:
This clause
contractually obligates the author to revise the work and permits the publisher
to engage another writer to revise the work if the author does not provide the
revision or the revision is unacceptable. Some other issues that may need to be
addressed as they relate to this section of the revisions clause include the
following:
The
author/author's estate unilaterally or the parties mutually could control the
selection of the writer who will revise the work.
The
publisher or the author/author's estate unilaterally or the parties mutually
could control the approval for the new material that is added to the work.
"The
Publisher may pay compensation to such persons in the form of cash or a
royalty; such compensation at Publisher's sole discretion will be reimbursed to
Publisher or charged against the royalties accruing to the Author
hereunder."
This
section of the revisions clause permits the publisher to pay the new writer for
the revision and obligates the author/author's estate to reimburse the
publisher for the cost of preparing the revision or to have such revision costs
deducted from subsequent royalty payments. Some other issues that may need to
be addressed as they relate to this section of the revisions clause include the
following:
The
third-party writer compensation that will be reimbursed by the author or
charged against the author's royalties could be a fixed amount; such fixed
amount could also increase for subsequent revisions.
The
third-party writer could be compensated by a percentage of the author's
royalties based upon the actual percentage of new content prepared by such
writer.
At some
point in time, for example if the work has been revised a number of times
without the author's contribution, then the author's royalty may be set at a
minimum percentage or royalty payments to the author may cease.
"If
such revision is not made by the Author, the Publisher may so evidence this
fact in such revised Work."
This
section of the revisions clause provides that the Publisher in its sole
discretion may credit a third-party writer who prepares the revision as the
co-author or author of the revised work. Some other issues that may need to be
addressed as they relate to this section of the revisions clause include the
following:
The author
may try to control the type of credit that is given to the reviser. For
example, the author might always want credit as the first-named author.
The author
may not want his/her name on the work once the work has been
"substantially" revised without the original author's input into such
revision but conversely it may be important for the publisher to ensure that it
has discretion to continue to use the author's name on all revisions or
subsequent editions of the work even if the author is deceased and the work is
entirely the work of a new writer.
Conclusion
The
revision clause as you can see may be an extremely important clause in the
publishing contract and the negotiation of this clause should not be overlooked
simply because it is only considered to be standard boilerplate language in the
publishing agreement.