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I am the literary executor of my father's estate. A relative has started work on producing a (probably very) limited non-professional edition of my father's 1938-45 war diary. I need to strike a royalty agreement with her, so that in the extremely unlikely event of this edition becoming a bestseller, I have duly and diligently carried out my duties and obligations under the will.

I propose to strike a reasonable commercial royalty rate, but with a provision that it doesn't kick in until at least all her costs have been covered and something well over, say $10,000, has been received, which in my opinion is far beyond the bounds of probability.

But I'm wondering what exactly that royalty rate should be.

The labour on her part is considerable, as it involves transcribing tens of thousands of words of highly illegible handwriting, scanning photographs and newspaper clippings, executing typography and graphic design, and getting it printed and bound somehow.

On the other hand the text is not her property, and indeed it was possibly with some surprise that she learnt she could only copyright the edition, not the original text, which must bear its own copyright notice. And I have my obligations to the Probate Division of the Supreme Court and the residuary legatees.

So I'm looking for suggestions.

EDIT I am not looking for suggestions about how to deal with a literary estate. I am not the publisher. I am not carrying any risk or investing anything in the project. I am in the position of an author with a pre-existing text here, and I am asking what royalty rate I should be aiming at, in line with reasonable commercial practice, and given that my relative is not Scribners or Macmillan. I am thinking anywhere between 15%, which is what I get from Addison Wesley and Springer, and 40-50% given that the publisher won't have a large investment in stock or advertising.

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    Do you really want to do a royalty rate for this? That would mean that the estate would (theoretically) be receiving royalties in the amount of a few dollars a year for the next 70 years, all of which would have to be accounted for and distributed. Why not do a straight sale of rights for a nominal fee just to get it off the books? – user16226 May 26 '17 at 13:06
  • @MarkBaker If the thing becomes a bestseller and there are millions in play it would be derelict of me not to have made provision to collect it. If it doesn't radically exceed my expectations, there is nothing to collect and nothing to account for. I thought I had already made all that perfectly clear. – user207421 May 26 '17 at 23:35
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    But as long as there is the possibility of royalties, the estate, or some other entity, has to be kept in operation to receive them. You could make the same argument about a stock certificate you found in a drawer. It may only be worth $10 today, but in the future it might be worth a million and generate fifty thousand in dividends. It might, but its current value is $10 and you would not be derelict in selling it at $10 today, even if the person who bought it did subsequently make a million. What is anyone willing to pay for that diary today? That is what it is worth to the estate. – user16226 May 26 '17 at 23:51
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    @MarkBaker I am not selling anything, so the question of nett present value does not arise. I am granting a publication right in exchange for royalties, which by definition are a future value. It is open to me to sell the IP and its royalty stream any time I like for an NPV, but that's not the topic under discussion. None of this is relevant to the question I actually asked. – user207421 May 27 '17 at 2:34
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Normally the royalty rate you find online are calculated on the cover price, so 40% is very high. The "reasonable range" is more line 10-25% with 15% being the most common. (25% for ebook, where there are no printing cost)

But the single number is not really important: the rate you are asking could not (and normally is not) be a fixed number: often royalty rates increase according to the number of books sold.

For example:

  • from 0 to X copies: 0% (to cover the transcription labour)
  • from X to Y copies: 10%
  • from Y to Z copies: 15%
  • [...]
  • Thanks for reminding me about a sliding scales with more than two elements. 40% would definitely be too high for a commercial publisher, although Mark Twain got 50%, but this is a one-man band, and I don't see any inherent reason to just give away 80% or more. Even of nothing :-| – user207421 Jul 14 '17 at 10:36
  • Royalty escalators can also be based on value, rather than number of copies, which might be an easier way to deal with whatever nominal value is placed on the work of the editor. Either way, expect the rate to be based on the net sale price rather than the cover price. – David Aldridge Jul 15 '17 at 10:54
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I cannot advise you without more information. You need to trust each other as 'fair and reasonable' and agree to formalise any 'ballpark' agreement at a later date, or suffer the increased overhead of involving two lawyers (one each) negotiating an agreement on an unlikely outcome.

There a simple too many variables.

Scenario 1: The book is self-published on both digital and dead tree platforms. You promote the work via a nationwide tour. How are your costs considered in the agreement?

Scenario 2: The book is vanity published. You sell 3 copies and the other 19,997 are held (at a cost) in a storage facility until they are burned on Guy Fawkes night. - Who is liable for the loss.

Scenario 3: The rights are purchased by a major publisher. You accept a $20,000 advance. The money is split in accordance with your agreement. The book is a flop. The publisher goes bust. The liquidator demands the ADVANCE be returned. Who's liable?

Unless your father is a celebrity or a person of significant notoriety his diaries are of no value. Therefore, the success could be down to your relative's writing skills.

Your desire to publish this story may be deemed 'vanity' on your part and deemed as a 'labour of love' on part of your relative.

If it all went wrong I'm confident a judge (whether or not a contract is in place) would encourage you to 'work it out'.

Without more information I'd advise you not spend money on a contingency for unlikely event.

  • This is all off topic. The relative is publishing. The publisher bears all the costs and risks, by definition. If a commercial publisher picks it up it's another edition and we start all over again. Liquidators can't recover advances. The true scenario is more likely that 100 copies are printed and about 50 sold, but I am not asking for advice about whether or how to publish. I am simply asking for a commercial industry royalty rate. I am thinking anywhere between 15-40% but I need some outside data. – user207421 May 27 '17 at 0:08

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