When is a Book Acceptable, and Who Says So?

By Richard Curtis

The acceptability provision of a book contract can be summarized as follows: A publisher engages an author to write a book, stipulating in the contract that if the manuscript is not acceptable in the publisher's sole discretion, the publisher may reject it and require the author to repay in full the advance that was paid on signing the contract. Until that advance is repaid, the publisher will not release the author from the contract, thus restricting him or her from entering into a contract with another publisher for that (and perhaps any other) literary work.

Inherent in this provision are three potentially explosive elements. The first is that acceptability depends entirely on the arbitrary editorial judgment of the publisher. The second is that the author is required to repay every penny to his publisher should the manuscript be determined to be unacceptable. The third is that the author is restrained from selling that book to another publisher until the original publisher has been repaid, or at least until satisfactory provisions for repayment have been made. (And if there is an option clause in the original contract, the author may be prohibited from selling any other work to another publisher until satisfactory refund arrangements have been made with the publisher of the first part.)

This mixture has indeed exploded on numerous occasions, and with growing frequency as the stakes in our business have grown higher. But there is a qualitative difference between disputes over acceptability and those over most other items in publishing contracts. Whereas 99 percent of the quarrels that arise between authors and publishers end up being negotiated, settled, or compromised, those over acceptability often end up being litigated to final judgments.

Publishers are loath to spend money on lawsuits, especially against authors, because it is expensive and makes for poor public relations. But when it comes to the question of acceptability, a publisher may be counted on to fight like the devil even though it looks lousy to dun and sue authors and the legal costs exceed the prospects of recovery of the money paid to the author. And authors who might otherwise shrink from the expense of prosecuting or defending a lawsuit have been known to dig in against all reason to wage war over the acceptability provision. Both sides seem anxious to make law on this issue. And when that happens, it usually means that a principle or precedent is involved that transcends money.

Authors frequently balk over the seeming right of life and death accorded in the provision that gives publishers the sole discretion to accept or reject a manuscript. But if the publisher doesn't have that right, who else should have it? The author? Of course a publisher is entitled to that right. As in any other business enterprise, the party that commissions a work is entitled to approval of the merchandise. It's only the potential to abuse the right that makes authors anxious, and there are enough instances of abuse to justify that anxiety.

In defense of publishers, it must be said that abuses occur less frequently than might be expected, and for two reasons. The first is that most publishers are extremely cautious about engaging authors to write books. Before contracting for an unwritten book a publisher will require ample evidence of the author's track record, writing skill, and reliability so as to minimize the possibility that the author will fail to deliver, will deliver late, or will deliver a problem manuscript.

The second reason is that most publishing companies today are run by committee. Just as the decision to hire a writer is not left to one editor, neither is the decision to accept or reject the finished product. Rather, the manuscript is circulated among members of an editorial board. This is particularly true when the sponsoring editor has doubts about the quality of the material. That editor's judgment is on the line, for he was responsible for advocating the company's investment in the project to begin with. If he rejects it, wasting his firm's time and raising the possibility that the money paid the author thus far won't be recovered, he loses face, prestige, and authority with his colleagues and employers. Sometimes he loses his job. Therefore, the editor who feels negatively about a delivered manuscript will seek backup from others on the editorial board, just as he solicited that backup when he acquired the book. And unless the manuscript is truly a stinker, the board may vote to go ahead with publication or revision despite its reservations. So there are fail-safe mechanisms operative at publishing companies that can reduce the potential for arbitrary rejection.

Nevertheless, abuses of "sole discretion" do occur. I can recall more than a few occasions when a publisher contracted for an unwritten book, then rejected the manuscript because the subject was no longer as timely or relevant as it was when the publisher signed up the author, or because the editor who commissioned the project was no longer there to lend support and enthusiasm to it. A notable example of this occurred when William Morrow rejected William Safire's manuscript of a book about Richard Nixon. Safire contended that the real reason Morrow found his book unsatisfactory was that between the time Morrow commissioned the book and the time Safire completed it, Richard Nixon had become persona non grata with the American public.

Agents and authors can cite numerous instances of publishers using the acceptability clause to renege on high-priced agreements. These publishers will agree to whatever terms it takes to get a hot author or property. Then, when the manuscript is turned in, the publisher may decide for any number of reasons that it overpaid. The publisher then threatens to reject the manuscript unless the author agrees to renegotiate the contract. The real reason for rejection may be that the publisher doesn't have, or doesn't want to spend, that much money. Thus far the courts have favored the publishers' argument that they should not be compelled to publish a book that they are certain is going to lose money.

It is extremely difficult for an aggrieved author to prove in a court of law that his publisher acted in bad faith in rejecting his manuscript. The parties cannot ask judge or jury to read the manuscript, because this involves matters of taste that are beyond a court's jurisdiction. So it's incumbent on authors and their lawyers to demonstrate that the publisher was motivated by bad faith, and I'm happy to note a trend toward admitting good and bad faith as factors in lawsuits over the acceptability clause. Admitting those factors in turn opens the door to questions of a publisher's editorial responsibilities, its obligations to furnish authors with editorial guidance, opportunities to rewrite, second opinions by other editors, arbitration and appeal, and other procedures designed to insure that authors are not placed totally at the mercy of publishers whose motives may be impure.

This also means that the stipulation requiring authors to repay their on-signing advance if the publisher rejects their manuscripts is coming under closer scrutiny by the courts. For if it can be shown that a publisher acted in bad faith when it turned a book down, a court may decide that the publisher is not entitled to a refund, no matter what the contract may call for. This very thing happened in a dispute between an author named Julia Whedon and Dell, in which the court supported Whedon's contention that Dell had acted in bad faith by rejecting her manuscript without affording her the benefit of editorial guidance, rewrite instructions, etc. The court not only allowed her to keep the advance Dell had paid her on signing the contract, but even ruled that she had not breached her contract when she sold the rejected manuscript to another publisher before being released from her Dell contract. In fact, the court ruled that when Dell failed to furnish Whedon with adequate editorial help, Dell breached its contract and at that point the author was released with no further obligation to repay her advance.

These developments are extremely promising from the viewpoint of authors even though, at this time, they still have to fight and even go to court to gain protection that should automatically devolve on them in the boilerplate of every publishing contract. At the same time, all this legal wrangling over sole discretion only serves to obscure the real issue in the war over acceptability: Is an advance a loan? Or is it, rather, an investment?

As things stand now, publishing contracts are nothing more than free options on an author's time, talent, and services. If, after the months or years it takes for an author to produce a book, the publisher turns the manuscript down, that publisher is entitled to get its money back in full. The only sum the publisher is out of pocket is the cost of the money - the interest, that is - that it "loaned" to the author while he was writing his book. Now, money-back guarantees are fine if you manufacture soup, soap, or spaghetti sauce. But it's quite something else if you write books. The principle of repayment on which the acceptability clause rests is a thoroughly odious one and deserves to be fought by any means at an author's disposal.

An advance is not a loan. It is a nonrecoverable investment, no different from an investment in a stock or bond issue, a mining or drilling operation or a Broadway show. A publisher reviews an author's "prospectus," - writing credits, sales records, reputation for reliability, and samples of the proposed work. If the publisher determines that a book by this author is a good investment, he puts money on it. As we have seen, publishers truly examines book proposals as carefully as if they were "at risk" investments. Why should they be entitled to get their money back while investors in every other type of offering stand to forfeit theirs? If for any reason the manuscript is disappointing to the publisher, the company has the right not to pay the balance of the advance due on delivery and acceptance. But in my own strongly held opinion, the down-payment must be forfeited and the author automatically released from his contract.

I realize that this is a hard line, but only by taking it will authors force publishers to demonstrate good faith when commissioning books. The publisher that knows it can recoup its full investment is going to have too many escape hatches when the book is delivered. There will be far fewer if a publisher stands to lose money.

To a small degree, publishers have conceded the fairness of this position by modifying the requirement that the author promptly refund the on-signing payment if a book is rejected. Many houses now stipulate in their contracts that the refund may be paid out of the "first proceeds" received by the author from the sale of the rejected manuscript to another publisher. This is scarcely better than having to repay the advance at the time it's rejected. All it means is a postponement of the day of reckoning, an extension of the date when the publisher's "loan" must be repaid by the author.

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.

Richard Curtis is president of Richard Curtis Associates, Inc., a leading New York literary agency and founder of E-Reads, a leading e-book publisher dedicated to bringing out-of-print books back into electronic and printed forms as well as publishing new titles. He is an author, as well as an author advocate and writes a blog on the future of publishing, Richard Curtis on Publishing in the 21st Century.


Top Ten Things Agents and Editors Hate

By Anthony S. Policastro

The other day I ran across an interesting post of a post by Joe Wikert on his blog, Joe Wikert's 2020 Publishing Blog about another post from Rick Frishman on the ten top things agents and editors hate. (I often vist Joe's blog - he almost always has interesting information about publising and writing.) The list is from Rick Frishman's and Robyn Spizman's "AUTHOR 101: Best Selling Secrets from Top Agents."

The first one was that writers often claim there is no competition for their book.

This blew me away. With millions of titles on Amazon, tens of thousands of eBook sites, more than 100,000 titles at any given time in the big box book stores how can anyone make that statement and be sane. Even if they narrowed it down to their genre or subject we are still talking about tens of thousands of similar books and subjects.

No matter what your subject is or your genre there is always competition. What you have to do is determine your market and promote your work so the market finds your work and buys it.

Be sure to take a look at the rest of the list on Joe Wikert's blog - his comments are valuable and read the full list from the Small Publishers Association of America.


Little Miss Sunshine, E.L. Doctorow, and Stuff White People Don't Like - Author Videos

Posted by Michael Neff

Michael Arndt visits to talk about Little Miss Sunshine. Good tips for writers!

E.L. Doctorow Slowly and Painfully Talks About Himself and in Doing So Gives A Small Amount of Fairly Good Advice

This is a good example of why I would rather commit suicide than go to most readings:


A World Where All Escalators Go Up - Part 2

By Richard Curtis

In Part 1 of this two-part article, we introduced a term commonly heard in discussions of book deals: "escalator." Escalators are additional advance payments made by publishers to authors if and when certain contingencies occur. What are those contingencies? How much are they worth? And what, if anything, is their real value? We homed in on bestseller bonuses. In this concluding segment we focus on paperback reprint, book club, awards, movie and other types of escalators.

One form taken by escalators is book club or paperback reprint, wherein your publisher agrees to pay you additional advance monies if a book club or paperback reprint deal on your bookexceeds a certain amount of money. As we've seen, such escalators are almost invariably of the pay-you-with-your-own-money variety, because your publishers are guaranteed recoupment of the bonus out of the money they will eventually collect from the book club or reprinter. The only thing they lose is interest on the prepayment to you of money they would otherwise have paid in the normal six-month royalty cycle.

Then there are movie bonuses, which are usually payable upon national release by a major distributor of a theatrical motion picture based on your book. There's a mouthful of contingencies crammed into that sentence, so let's analyze it. First, the movie has to be released. Of course! you say, but many authors believe that merely signing a contract for a movie deal ought to be enough to garner them a handsome bonus from their publishers. I'm sorry to tell you otherwise. Although there is some promotional value for a publisher to be able to boast, "Acquired for motion pictures by Universal," it scarcely does a thing for sales. Thus, escalators are usually not payable when movie rights to your book are optioned, or even when the option is exercised. In fact, they are not even payable when your movie goes into production. Publishers have seen too many movie deals fall through to get excited when a star actor or producer takes an option on a book property. They have learned to their sorrow that many movies that go into production are not completed or released.

So, in order to trigger that escalator, your film must actually be distributed. And it must be distributed by one of the big distributors, Universal or Warner or the like, rather than any one of the thousands of little ones that service the movie community. And finally, the movie must be released nationally, as opposed to locally or regionally. The premiere of a film, even a high-budget one made by a great director with superstar actors and actresses, is not going to boost sales of the book from which it is adapted if it's shown only at a few elite showcase theaters in New York and Los Angeles. In order for the film to have impact on mass market book sales, it must be shown at hundreds or thousands of theaters around the nation.

Again, the prices for movie escalators vary widely, from modest - in the low five figures - to very large in the case of authors with long track records in the area of books made into hit films.

Related to theatrical movie bonuses are television-movie escalators. But while the market for television adaptation of books is a very active one, the stimulus to book sales is usually minimal. Even though the exposure is tremendous, far greater than that of a theatrical movie, it is also ephemeral: an evening or two (repeated once, six months or a year later) and it's gone. For publishers this presents serious problems of distribution and promotion. The books must be in the stores precisely on the day of or the day after the airing of the film, and the film must be so heavily publicized that consumers will be motivated to buy the book at the time of the airing. This is expensive, inefficient, unpredictable, and usually, therefore, unsuccessful.

For a television movie to mean anything in terms of tie-in value, it must first of all be an event, one absorbing a minimum of four hours, but preferably spanning a whole week of evenings or, like the blockbuster miniseries Rome, a season of Sunday evening. It should also be based on a bestselling book so that viewer recognition of both the book and movie stimulate each other: you've read the book, now see the television movie, you've seen the movie, now read the book.

Because very few books are converted into television events of a enormous magnitude, the prices for escalators in this medium are considerably lower than they are for release of a major theatrical film adaptation of your book. The conditions are that the TV film be of at least four hours, run over an extended period of time, and be aired originally on a major television or cable network.

There are other contingencies that may trigger escalator payments. Some contracts call for bonuses to be paid if a book wins a major prize or award that has promotional value: Pulitzer, National Book Award, and the like. In some science fiction book contracts, I have negotiated bonuses for winning Nebula or Hugo awards, and in a few cases I even worked in bonuses for nominations for those awards. To science fiction fans the words "Nebula" or "Hugo" on the cover of a book are powerful inducements to buy that book, even if the word "Nominee" is printed beside them.

Obviously, not all books are suitable for escalators. Midlist books, most genre books, and books in category series seldom have escalation provisions in their contracts. For the occasional wunderbuch, the midlist novel that becomes a word-of-mouth bestseller and gets made into a hit movie, the author who did not have escalators in his contract can nevertheless look forward to royalties in the usual course of things. Of course, the next contract he or she negotiates will, you can be sure, contain more escalators than Macy's department store.

There's no harm in your trying for escalators when you negotiate your next contract, because it's no skin off your publisher's nose to give them to you: they only have to pay them to you, as they say in Las Vegas, "on the come." So what the hell; go for it. That way, you too will be able to brag that you have sold your book—with escalators—for a million dollars.

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.

Richard Curtis is president of Richard Curtis Associates, Inc., a leading New York literary agency and founder of E-Reads, a leading e-book publisher dedicated to bringing out-of-print books back into electronic and printed forms as well as publishing new titles. He is an author, as well as an author advocate and writes a blog on the future of publishing, Richard Curtis on Publishing in the 21st Century.


A World Where All Escalators Go Up - Part 1

By Richard Curtis

A term commonly heard in discussions of book deals is "escalator." For instance, "Her book was bought for an advance that, with escalators, could exceed $1 million." Escalators are additional advance payments made by publishers to authors if and when certain contingencies occur. What are those contingencies? How much are they worth? And what, if anything, is their real value?

Escalators were created, among other reasons, to bridge the gap between author and publisher when negotiations reach an impasse. You strongly believe your book will be a bestseller or will be bought by a major book club or made into a motion picture, and you feel that your advance should reflect the same optimism on your publisher's part. Your publishers, on the other hand, hope and pray you're right, but they've seen many a slip 'twixt the cup and the lip. They cannot afford to overpay authors on the strength of hope alone. Of course, if your track record justifies it - if your last five books have soared to the top of the bestseller list; been main selections of major book clubs, and been made into hit movies - they will be greatly disposed to pay you a lot of money up front. But let us say, for the sake of argument, that this is not the case.

The answer is for your publishers to offer you escalators. These bind them to pay you scheduled sums of money if, and only if, your optimism turns out to be justified; if it doesn't, they owe you nothing beyond whatever royalties your book may earn over its original advance.

Although the terms "bonus" and "escalator" are used interchangeably in Publishingese, and I'll use them that way here as well, these extra payments are not really bonuses in the usual sense. They are always recoverable from royalties and subsidiary income generated by a book; they are, in other words, additional advances. If your original advance was $50,000, say, and your contract calls for a $10,000 escalator to be triggered by the release of a movie adaptation of your book, then your advance becomes $60,000. The $10,000 escalator is, in effect, a prepayment of royalties that your publishers hope your book will earn as a result of the movie.

It would seem, then, that you are being paid with your own money, and in certain cases that is true. Suppose you sold your book to a publisher for a $25,000 advance, and your contract calls for a $10,000 escalator to be paid if your book is sold to a paperback reprint house for $100,000 or more. Further suppose that the book is auctioned off and sold to a reprinter for $150,000. If the traditional fifty-fifty split on reprint money applies, your share of the reprint money will come to $75,000.

Okay, the reprint deal triggers your $10,000 escalator. Now you've received a total of $35,000: your advance plus your escalator. But it is no hardship for your publishers to pay that escalator to you, because you are guaranteed $75,000 as your share of the reprint deal!

Other escalators are riskier for publishers and can end up losing money for them. Take another hypothetical case where you sell your book for a $100,000 advance, and the contract calls for a $25,000 bonus if a movie is made from your book. Let's say that both book and movie flop, and your book doesn't even earn back its original advance, let alone the advance plus the escalator. This is a case where the publisher was not paying you out of guaranteed monies, but is genuinely out of pocket.

Escalators fall into a number of categories. The most common is the bestseller bonus. The best-seller list usually used to determine escalators is the one in the book review section of the Sunday edition of the New York Times, though sometimes the one in Publishers Weekly is also used. There are several ways to structure bestseller bonuses. One is the length of time that a book is on the list, another is a book's position on the list. It is desirable for a book to be on the bestseller list for a long time, of course; it is also desirable for a book to be high on the best-seller list. Bonuses can be structured to reward length or position or both. A long run on the list, even at the bottom, can be significant, both because it means the book is selling strongly over a long period of time, and because it enables the publisher to boast, " _____Weeks on the Bestseller List!"

Just as important is position on the list. The higher your book rises, the better it is, naturally. But the book that reaches the number one position causes a quantum leap in promotional value, even if it drops down or off the list the very next week. Therefore, many escalator schedules in book contracts are heavily weighted in favor of the number one slot. A typical arrangement might be $2500 per week for New York Times bestseller list positions 11-15, $3500 per week week for positions 6-10, $5000 per week for positions 2-5, and $10,000 per week for the #1 slot.

The actual sums paid at the various stations of the list can vary widely. I have negotiated bestseller escalators for as little as a few thousand dollars and as much as high six figures.
There are a couple of other features of escalators I should mention. Almost all such provisions place a limit (called a "ceiling" or "cap") on the total bestseller bonuses payable to the author, so that no matter which position your book is on and how long it stays there, the most you can earn is, X thousand dollars in escalators.

The other aspect is that escalators, or escalator installments, are payable within a short period of time after the event that triggers them. Thirty days is as long as it should take for most bonuses to be paid, otherwise your publishers will be taking back in interest what they owe you in bonus money. If a publisher waits until royalty time to pay you your escalators, that's not much of a bargain.

In the second part of this article we'll focus on award, book club, movie and other types of escalators.

- Richard Curtis

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.

Payout Schedules

By Richard Curtis

While the size of the advance is the criterion by which most authors measure the commercial value of their books, the size and timing of the installments in which the advance is paid are just as significant, and sometimes more so. Because the "payout schedule" directly affects the cash flow of publishers and authors, it is often a bone of bitter contention in negotiations, and many a player has walked away from an otherwise good deal because a disadvantageous payout schedule nullified advantages gained in the negotiation.

With few exceptions, advances are paid in installments. Part of the total money is payable upon signing the contract, the balance payable on acceptance of partial, complete, or revised manuscript; on certain calendar dates; on publication; and even after publication. Although the payout formula may be fairly simple when the advance is small, publishers and agents devote a great deal of attention to it when the stakes get high, The reason, of course, is the cost of money.

Although interest rates and inflation have (as of this writing in 2008, at any rate), remained stably below 10% in the last decade, even 5 percent per annum is worth fighting over and may indeed make a significant difference to the balance sheets of both publishers and authors.

Let's take a closer look at payout schedules installment by installment and sketch some ways authors may improve their position when the haggling begins.

* Payment due on signing of the contract. All contracts large and small require a consideration to be paid on signing, even if it be no more than one dollar, in order to bind the agreement. If the total advance is small enough, it may be payable in full upon signing. Most publishers today, however, have policies prohibiting payment in full on signing, and editors are ordered to defer some part of the advance when they conduct negotiations with authors or agents. Even if your book is a flawless gem requiring not a jot of revision, an editor may contrive to pay a second installment of your advance "upon acceptance of revisions" in order to satisfy company policy. Then, a week or two after requesting the signature installment, the editor will put through the acceptance installment as well.

If the contract is for an unwritten book, the advance will be divided at least into an on-signing payment and an acceptance one to give the author some money to live on while writing, and to create an incentive for him or her to deliver the work. The publisher may try to divide the advance even further, into installments payable on delivery of a partial manuscript or first draft.

You will have to do some solid reckoning before accepting too small an installment on signing, otherwise you'll run out of money before you turn in material qualifying you for the next installment. First you must subtract your agent's commission if any, then calculate the amount of time that will pass until you are entitled to the next payment. You then have to figure whether your living costs (including anticipated lump sum payments like school tuition, income taxes, or insurance premiums) during that period will be covered by what you collect when you sign your contract. A $50,000 advance may seem attractive to you, but if your publisher wants to pay you $10,000 on signing and it takes you six months to write the book, and your monthly living expense are $3,000, you're going to be up the creek halfway through the writing of the book. So you must bargain hard for a down payment that will sustain you until you've turned your manuscript in.

* Payment due on delivery of partial manuscript or first draft. These installments are generically known in the book trade as "satisfactory progress" payments. To help bridge the gap between the on-signing and the acceptance checks, and to encourage or compel progress, publishers frequently negotiate installments payable when the author turns in part of the book. A typical deal might be structured: one third on signing the contract, one third on delivery of half the manuscript, and one third on delivery and acceptance of the complete manuscript.

Of the many ploys cooked up by publishers to stretch out their money, "satisfactory progress" is the least effective, and if it weren't so dangerous it would be just plain silly. At the very least, "satisfactory progress" is satisfactory neither to authors nor publishers, and the only thing it does for progress is halt it.

In a "satisfactory progress" situation, an author faces a number of choices, all of them terrible. He can turn in a rough draft, which is usually an embarrassing mess that will send most editors into respiratory arrest, or at least provoke them to request revisions that the author would ordinarily make on his own when tackling the final draft. Or he can stop work in the middle of the book, polish and retype what he's done so far, and turn a partial manuscript in. Either way, he will have to suspend work on his book until he has received some feedback from his editor.

Even if his editor offers no feedback whatever, it may take weeks or longer to get that editorial reaction, and such delays are inevitably harmful to creativity and cash flow. If the editor does have criticisms, the author may be required to rework what he's turned in in order to get his hands on that money. To avoid all that hassle, therefore, an author may choose to forgo his "satisfactory progress" payment and forge ahead with the rest of the book, which defeats the purpose of such interim payments. Most authors do not polish chapters after drafting them, but prefer to finish a rough draft of the entire book and polish it in the final draft. Thus the time between the completion of a first draft and a final draft, or delivery of half the manuscript and all of it, may be so brief that the machinery for putting through the "satisfactory progress" installment will scarcely have begun turning when it will be time to put through the final acceptance payment. Furthermore, many editors feel it's silly to read a partial manuscript or first draft when the final product will be turned in a few weeks or a month later.

In short, "satisfactory progress" payments reflect little understanding of how authors work and pose a genuine threat to both the quality of a book and the timeliness of its delivery. Ultimately, this ends up hurting the publisher as badly as it hurts the author.

* Payment due on acceptance of the manuscript. Whenever possible, the balance of the advance on a commissioned book should be payable no later than acceptance. A number of contracts stipulate that a manuscript is deemed acceptable unless the publisher notifies the author to the contrary within a period of time, thirty days, sixty days, or thereabouts. This is a very desirable feature and one worth fighting for if it does not appear in the boilerplate of your contract.

In most contracts the definition of "acceptability" embraces revisions. If serious revisions are required by a publisher, the acceptance segment of the advance may be delayed until satisfactory revisions are turned in. If the revisions are minor, however, the publisher may often be prevailed upon to put through the acceptance money and take it on faith that the author will turn in acceptable revisions. There is an in-between state where revisions are necessary but the author cannot afford to do them without some sort of financial relief. In such cases the publisher may be persuaded to release some of the acceptance money to carry the author during the revision period.

I've expressed myself many times about the prevailing requirement in publishing contracts that an author must repay the on-signing installment of his advance if his manuscript is rejected. But in case you haven't read what I've said - well, I think it stinks. The on-signing advance should be regarded as a forfeitable investment, not a refundable loan. Needless to say, hard-headed (or hard-hearted) publishers see things quite differently.

* Payments due on publication. The purpose of publication installments is to enable publishers to start recouping what they've paid the author as soon as possible after disbursing his or her advance. Publication payments used to be the norm in American publishing. Then the rise of strong agents in the 1960s drove publication payments out of favor. But when money started to get expensive again in the 1970s (with double-digit inflation and interest rates), publishers pushed the agents back, and it is now common for publication installments to be paid. In some foreign countries such as England, the publication installment is still an article of faith.

The most common mistake authors make when agreeing to publication payments in a negotiation is failing to fix a time limit on them. Unacceptable language is, "$5,000 payable upon publication of the Work." Acceptable: "$5,000 payable upon publication of the Work or twelve months after acceptance, whichever date is sooner." The reason should become obvious if you think it through. Few contracts require publication of a book in less than twelve months after its acceptance, and many allow for publication in eighteen or even twenty-four months. Tacked on to these times are grace periods giving publishers an additional six months or more beyond the deadline to publish the work upon notification by the author that the deadline has passed. A publication payment may therefore not be due for as much as three years after a book has been accepted.

What is worse, publication of a book may be canceled entirely for any of a number of reasons: staff changes, new policies, or events or trends that date that book. That means that the publication portion of the advance will not be payable at all, at least not according to the publisher's interpretation of the contract. I don't know if the point has been tested in court, but it can certainly be argued that if you sell a book to a publisher for $25,000, and the publisher cancels publication, you still sold the book for $25,000 even if some of that sum was yet to have been paid, for the publisher's convenience, on publication. Therefore, whenever you negotiate a publication advance, you should always stipulate that the installment will be due on publication or X months after acceptance, whichever date comes first. The X is negotiable, but should be no longer than the outside date by which the publisher is required to publish your book.

* Postpublication payments. Publishers have devised a fascinating array of gimmicks to postpone the day of reckoning to authors. Among these is the postpublication advance. Such installments may be payable on a specific date - X months after publication, say - or, in the case of a hardcover-softcover deal, one installment may be payable when the hardcover edition is published, another when the paperback edition is brought out. There are other creative variations on this theme, but because a book begins earning royalties from the date it's shipped, all postpublication advances amount to the same thing: paying authors with their own money.

Authors may want to try to negotiate payout schedules advantageous to their income tax status. An author who has already made a lot of money in a year may not want to receive a large on-signing payment that same year. A deal can be structured, therefore, so that only a token amount is paid on signing the contract and the balance of the on-signing advance is paid early in January of the following year. Not surprisingly, publishers like such setups, since they enable them to legitimately keep authors' money for several months. Literary agents, however, are not always thrilled to have their commissions deferred just because a client is enjoying a good year, so I don't feel your agent is out of line to request his commission on the full on-signing advance now, and to take no commission when the rest of your money comes in January.

If you do want to structure installments in a way that you feel is advantageous to you tax-wise, and your publisher is agreeable to the arrangement, the time to do it is when your contract is negotiated. If a contract is already in force and you ask your publisher to defer until next January a payment that is due this October because you don't want more money this year, the Internal Revenue Service may disallow it if you are audited and your publishing contract examined. The same holds true of requests to agents to hold your money until the start of the next year.

The law makes it quite clear that money received by a fiduciary - a literary agent, for example - is construed to have been received by the author. This is not to say that publishers and agents do not hold money for authors in such circumstances, but getting away with it doesn't alter the statutes concerning "constructive receipt," and you may be liable for an adjustment in tax for that year plus interest and penalties.

Even if you are nothing more than a working-stiff type writer, it's still a good idea to get as much money up front as you can. A smart agent and a smart accountant will help you to structure your cash flow so that your hide is relatively intact every April 15th. Don't let publishers earn interest on your money. Remember, the sooner you get your hands on it, the sooner you can start blowing it on stupid investments.

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.

- Richard Curtis