Wednesday, May 16, 2012

Editing Clauses in Publishing Contracts: How to Protect Yourself

Posted by Victoria Strauss for Writer Beware

Over the past couple of days I've gotten several emails and Facebook posts alerting me to a blog post by writer Mandy DeGeit about her bad experience with a small publisher called Undead Press. When she received her author's copy of the anthology in which her story was published, she discovered, to her dismay, that not only was there a mistake in her title (an inappropriate apostrophe), but...
They changed my story without telling me.

Let’s see: They turned a non-gendered character into a boy, they named the best friend, they created a memory for the main character about animal abuse. They added a suggestion of rape at the end…
When she complained about, among other things, the gratuitous addition of sexual content, she received this delightfully professional response from the publisher, Anthony Giangregorio:
on the contract, it clearly says publisher has the right to EDIT work. you signed it. are you saying you are a dishonest and immoral person and will now try to deny you signed the contract? well i have a copy right here
and as for the story. the editor had a hard time with it, it was very rough and he did alot to make it readable. despite what you think, your writing has a long way to go before its worthy of being printed professionally.
we did what we had to do to make the story printable. you should be thankful, not complaining. ah, the ungrateful writer, gotta love it
Ms. DeGeit's bad experience with Mr. Giangregorio, unfortunately, doesn't seem to be an isolated incident. Similar complaints are appearing in her comments thread, and other writers have reported the same kinds of problems with Undead Press and other publishing ventures run by Giangregorio--who, among other exploits, has apparently published and sold several unauthorized sequels to George Romero's Dawn of the Dead.

As egregiously unprofessional as Giangregorio's behavior is, however, that's not what I want to write about today. Today, I'm looking at editing clauses in publishing contracts, and how they can lead to the kind of situation in which Ms. DeGeit found herself. (I haven't seen an Undead Press contract, by the way, so I can't comment on it specifically.)

Editing clauses are one of those contract areas where there needs to be a balance between the publisher's interests and the writer's. A publisher needs a certain amount of latitude to edit a manuscript to prepare it for publication (assuming it's professional enough to do editing at all--you might be surprised how many small press contracts I see that don't include editing clauses). It also needs to have the right to final approval--it doesn't want to be forced to publish a manuscript that the author can't or won't revise to the publisher's satisfaction.

A writer, on the other hand, needs assurance that they will be a partner in the editing process, and that their work won't be changed in major ways without their permission.

Whether you're publishing an entire book or a story in an anthology, the editing clause of your contract should ensure that content editing (the kind of serious editing that focuses on plot, pace, structure, style, and content) includes your cooperation (ideally, the editor will provide revision suggestions and you will carry them out yourself), and that substantial alterations can't be made without your consent. For copy editing, on the other hand, the publisher usually has discretion--but you should have a chance to see and approve the copy edited manuscript before it goes to press.

Here's an example of an editing clause you don't want to see (this and other clauses quoted below are taken from actual contracts in my possession):
Publisher shall have the right to edit and revise the Work for any and all uses contemplated under this Agreement.
What's missing here? Any obligation on the publisher's part to seek your approval before making the edits and revisions. A clause like this allows the publisher to edit at will without consulting you or asking your permission. If you sign a contract with this kind of  language, you are at the publisher's mercy, and shouldn't be surprised if the publisher takes advantage of it.

The next clause is more elaborate, but has the same effect (this language is fairly common, by the way; I've seen it in a number of contracts):
The Publisher shall be entitled to develop, alter, edit, and proof the content, usage, format, capitalization, punctuation, and spelling of the Work to conform to the Publisher's style, the subject matter, and intended audience previously agreed upon by the parties of this Agreement.
Here's another bad one, which is explicit about the publisher's right to edit at will:
Publisher has the right of final approval of Author’s manuscript. Publisher will assign an editor to work with Author in making revisions. The Author agrees that Publisher can make editorial changes to the manuscript, including, but not limited to spelling, punctuation corrections, and abridgments of text without Author’s consent.
Less obviously a problem is something like this:
Publisher shall have the right to correct errors, and/or edit and revise the Work for any and all uses contemplated under this Agreement (collectively "Editing"), provided that the meaning of the Work is not materially altered.
Again, this is a very common formulation. Many authors skip right over it, because on a surface reading it appears to protect the work from major changes. Not so. "Provided that the meaning of the Work is not materially altered" can cover a huge amount of ground, including stylistic alterations, abridgements, additions, and all sorts of things that might not change your manuscript's meaning but could seriously change its tone and style. Plus, the publisher is not required to consult you or get your permission before making those changes.

This one throws the author a bone, in the form of notification:
Publisher has the right of final approval of Author's manuscript. Publisher will have the right to correct errors and revise the work for all purposes of this Agreement. The Author will be notified prior to any and all substantial changes.
But although this prevents you from being blindsided by enormous changes in your finished book or story (assuming, of course, that the publisher's definition of "substantial" is the same as yours), you have no power to dispute or refuse those changes. You're still at the publisher's mercy.

Are clauses like these an automatic invitation to badness? Not necessarily. It's entirely possible that the publisher will be conscientious and ethical and make you a full partner in the editing process, and everyone will wind up happy. The problem is that you have no contractual assurance of this. The letter of these clauses gives all the power to the publisher--and in publishing, the letter of the contract is the bottom line. If the publisher has a dictatorial attitude, or employs not-very-competent editors, or is just an obnoxious scumbag--none of which, unfortunately, are uncommon in the small press world--you could find yourself with a badly-edited manuscript and no recourse. I have gotten hundreds of complaints over the years from authors who've found themselves in this position because the editing clauses in their contracts gave them no rights and offered them no protection.

So what should you look for? Here are several examples of better editing language, taken from various book contracts I've seen, including my own:
The Publisher shall make no changes in, additions to, or eliminations from the manuscript, except for typographical, spelling, and grammatical errors, without Author's consent. Any other edits will be requested of the author and agreed upon between the author and editor prior to preparation for sale.

Publisher has the right of final approval of Author's manuscript. Publisher may assign an editor to work with Author in making revisions. The Author will be notified prior to any and all substantial changes, which will be made only with the Author's approval and participation...Publisher may make corrections of typographical errors without Author's consent.

If the complete manuscript for the Work delivered by the Author is not acceptable to the Publisher, the Publisher shall give the Author a written request for changes and revisions for such work...After the Work has been accepted by the Publisher, no material changes may be made in such Work without the Author's approval. However, the Publisher may copyedit the Work in accordance with its standards of punctuation, spelling, capitalization and usage. The Publisher shall send the copyedited manuscript to the Author, who shall make any revisions and corrections and return it within two weeks of receipt.

The Publisher shall request that the Author work cooperatively with the Publisher to make the Work satisfactory to the Publisher, in which event Author shall use best efforts to do so...Upon acceptance by the Publisher, no changes shall be made in the Work without the author's approval, except that the Author authorizes the Publisher to make the manuscript of the Work conform to its standard style in punctuation, spelling, capitalization and usage.
And from an anthology contract:
 The Publisher will make no major alterations to the Work's text or title without the Author's written approval. The Publisher reserves the right to make minor copy-editing changes.
What's common in all these clauses: the author's consent is required before serious changes are made.

What to do if the publisher that has just made you an offer has a bad editing clause in its contract? Try to negotiate. Ask that the publisher add a sentence about seeking your approval--a la the four clauses above. Many publishers will be willing to be flexible on this. If they aren't willing, hard as it seems, you might seriously consider moving on.

Obviously, with even the best contract language, things can go wrong. Really devious publishers can always argue semantics to justify their bad behavior--for instance, what's a "major" change? You might think it's hacking 25,000 words out of your novel; the publisher might claim to disagree. (All the more reason to research the publisher before you submit to make sure it's a professional operation.) But if you sign a contract that doesn't protect your rights in the editing process, you are really vulnerable. Just another reason to be smart and careful out there.

28 comments:

PT Dilloway, Superhero Author said...

I'm supposed to be getting my book back from the editor soon. I can't wait to see what sort of changes she made. I read someone else's book recently from a small publisher and despite being "edited" there were tons of typos.

Teresa Nielsen Hayden said...

I'm fond of the "author's consent shall not be unreasonably withheld" provision. I agree that it's important to specify that the author gets to look at edits, copyedits, and proofs, make changes, object to changes, et cetera. Both sides have to make their best efforts to come to an understanding. But at some point, that process has to end and the book has to come out.

There are a few more protections for the author you might want to consider.

First, the contract should specify the minimum length of time the author is given to go over a copyedit or a set of proofs. Two weeks or ten working days is the one I'm most familiar with.

You can take it as a given that Production will sometimes run late. This can lead them to send out a copyedited manuscript with a note on it directing the author to turn it around in three days. At a moment like that, you really want to have an explicit contractual provision saying they're required to give you time to go over your pages.

Second, your contract should not just give you the right to be sent first-pass galleys when your book is initially typeset. If it's re-typeset at some point in the future, you should also get to proofread those pages. Ditto, if it's converted into some other form such as ebooks. Bad things can happen to text at any stage.

Third, you should have the right to be consulted on any editorial changes in later editions. Some things you don't want them to do without asking (none of which happened at Tor):

-- Selling product placement rights by inserting scenes where your characters are sitting around enjoying the advertiser's instant soups.

-- Shortening a book by stripping out its extensive frontmatter, backmatter, footnotes, and part titles, including acknowledgments and copyright notices for images and text that were used with permission.

-- Repackaging a story collection to give the false impression that it's a novel, or engaging in any other mendacious repackaging that misrepresents the nature of the work.

Under pressure from some moral crusader who's threatening to prosecute them for indecency, or from corporations which are trying to assert rights they don't have over mentions of products, characters, amusement parks, titles of works, et cetera, going through your book and changing dates, locations, product names, character names, character ages, what's playing in the background, who does or doesn't smoke, who does or doesn't take the name of the Almighty in vain, or any other details of that sort.

You wouldn't think it would be necessary to specify that a publisher isn't allowed to insert sex scenes into a story or novel without prior consultation and approval from the author, but Undead Press is only one of four different imprints I know to have done that. Tom Whitmore even came up with a word for it: impurgation.

Teresa Nielsen Hayden said...

Bah. Left out the em-dash at the beginning of the second-to-last paragraph.

Leslie said...

Wow! I went through pretty much the same thing as Ms. DeGeit. Wasn't the same publisher, but it was a horror/bizarre/etc anthology publisher. They took my beautiful story and ruined it. Fortunately, the stakes were pretty low for them (I guess) and they pulled the story from the anthology at my insistence -- and then told me I didn't have the right to publish it because they had the sole rights for 18 months.

Really, it's a tempest in a teacup but golly did it *hurt*.

Karla Gomez said...

My, now we know the importance of understanding contract language. Great post!

Kristin Laughtin said...

GREAT post on understanding contract language. My heart froze for a second reading about the changes made to this author's work; I'd freak out in a similar situation. I'm tucking this away for future reference and offer my thanks!

Jessica L Buike (AuthorJess and Operation Relax) said...

so far I've only self-published, so I haven't dealt with editing contracts yet. But now I know what to look out for! Thanks for sharing such an awesome post. I linked to it on my blog today: http://authorjess.blogspot.com/2012/05/whats-up-wednesday-playing-blog-catch.html

Annalisa Crawford said...

You have to wonder, if the publisher thought the story was that badm why they accepted it in the first place. What a horrible reply to that poor author!

C.J. Listro said...

Wow, thanks for this post! I hadn't really been aware of how important the wording of this clause is. It's definitely something I'll look out should I get to those stages.

C.J.
cjlistro.blogspot.com

Brandy de Cusack said...

I had a run in with the same 'publisher'. I submitted a short story for an anthology to his other outlet 'Open Casket Press'. He responded, saying my story needed no editing as it was so well written. I should have known then a farce was about to unfold.

The contract I subsequently received was questionable, to put it politely. The indemnity clause nearly gave me a heart attack (and I'm an ex legal secretary who used to work in commercial contracts and copyright/IP, and there were other clauses which gave me cause for concern.

I withdrew my story with a polite email and stated the indemnity clause was the main reason. I received a response similar to Ms De Geit. In contrast to his earlier email the 'publisher' complained he had spent a considerable amount of time and effort editing my story and accused me of being paranoid. Apparently it 'served him right' for dealing with an unknown writer. "Lesson learned."

The lesson, and the learning, was all mine. Now I never submit to anyone without doing a vast amount of research first. Googling the 'publisher' will bring some surprising information.

Tracy said...

Thank you for this post. I'm bookmarking it for the future.

I'm beginning to think that when the time comes, I’ll need to run any contract by someone with the right legal expertise to make sure all clauses are fair.

Lucy said...

Thanks, Victoria and Teresa! A good comprehensive list there when put together. I'm bookmarking this one for future reference.

C.K. Garner said...

Just heard about Undead Press and the underhanded way the editor is playing his authors. Came here to report it, but you're on the ball already.

Victoria you're dead right, and I add for people to read closely.If it seems fishy, run it by Writer Beware or Absolute Write for clarification of a point before you sign.

C.K. Garner

Chef E said...

I wonder how many new authors are so excited to get that acceptance notice and 'float' through the process, not reading the contract. Then its 'Oops' and anger afterward. This did have me go back to a contract I received a week ago...

I feel for the girl, but not knowing what the contract said...it is here say...but I am glad it has brought this issue to surface...Thanks! (it also gives me a lot to think about in my own work as an editor down the road)

EAS
Z-composition
Cowboypoetrypress

Anonymous Author said...

Ouch: "he did alot to make it readable..."

This guy sounds like a real jerk, and I'm wondering if changing the contract languge would really have made any difference. Except perhaps to have unleashed another ad hominem attack against the hapless writer.

Ekko Johnny said...

Just curious...If the story ended up so completely different, wouldn't that change the basic copyright?

Jim Kukral said...

Ugh! Just self-publish. There's no need for a publisher. Cmon people!

Anonymous said...

I published about 20 short stories in magazines before I quit submitting. One of the reasons I quit was that none of the magazines I dealt with (and most were high profile) did their job in a remotely professional way. They (a) ruined the punctuation, (b) changed characters' names without permission, (c) published one story under my real name rather than the agreed-upon pseudonym, (d) sold reprint rights to school testing companies without my permission, and (e) offered a contract (with deal points agreed to on the phone) and then switched up the written contract and sicced their legal dept on me when I complained. It was unbelievable. Most of the people I dealt with didn't appear to understand what rights they were buying.

Anonymous said...

Sometimes even with a contract that states the piece will not be published unless the author agrees to the changes, the opposite happens. I sent in corrections, was told they would be made, then the book came out without any of the corrections. The editor quit over the publishing house's editing rules. They were not quite literate, but I was never alerted to this style sheet. The editor just lied to me.

The attorney I consulted told me it wasn't worth the trouble to get the book corrected. I didn't see what the problem would be with an eBook. I was willing to let the print copies go through until the next printing. The attorney told me that for a big press contract, the only thing NYC would be looking at was numbers sold.

Sometimes publishers don't follow their own contracts and authors can only afford to insist when they can actually afford to insist. Most of us can't.

C.G.Ayling said...

Though I encourage MS. DeGeit to simply remain silent in response to Mr. Giangregorio, as an interested observer I feel no such compulsion to refrain from commenting on several of his remarks.

“are you saying you are a dishonest and immoral person” – No, I am saying I made a mistake in assuming you were honest and moral.

“despite what you think, your writing has a long way to go before its [sic] worthy of being printed professionally” – I am forced to accept this. Perhaps one day I will obtain a contract with a professional publisher.

“we did what we had to do to make the story printable” – You did what you chose to do, without due consideration or conscience.

Anonymous said...

What a nightmare!

Wasn't there an X-files episode about something like this? (where the cigarette-smoking man of all people was taken in by a scam like this?)

But the horror of having your story published with substantial changes you disapprove of -- my heart goes out to the authors.

Mona Karel said...

Looks like Undead Press mostly publishes the editor's books.
RE: Articles. On occasion I write for dog publications,often as a favor to the publishers, sometimes for real money. Funny thing is, the less I'm getting out of the deal, the more they think they can change my words. And the fights over copyright are not to be believed.

Adeline Ross said...

I wonder if the Undead Press publisher would let me edit his writing. He could use it.

Anonymous said...

As an author, I am NOT a copy editor. As a writer, yes, I try to keep improving on my grammar. And yes, I sign off on the final proof but I am not in the profession of copy editing. This is the publisher's editor's job to ensure no typos -otherwise why go through a publisher? Lesson learned here from small press experience. Of course, once your book is out there with typos its unfortunate, but if not a print run at least correctable if POD.

lena said...

Shocked at the publisher's response!

Katherine Traylor said...

Thanks! This is really helpful.

Nicole J. LeBoeuf-Little said...

I have just had the opportunity to check a story sale contract against this fantastic post and TNH's comment. (I'm happy to say the contract measures up.) Thank you so much for this valuable resource!

Anonymous said...

Just a thank you. I'm working, agentless, right now on a small press contract with a terrible editing clause and I'm cutting and pasting your good example wholesale as a proposed replacement. If I don't get what I want, I will indeed "move on."

It's hard (this is my first all-the-way publication offer) but I want to be good to myself and make smart career moves as much as I can on my own until I find that agent.