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December 19, 2014

Evaluating Publishing Contracts: Six Ways You May Be Sabotaging Yourself

Posted by Victoria Strauss for Writer Beware

As I've followed the discussion (for instance, here, here, and here) over the past couple of days about literary ezine The Toast's demand that writers surrender copyright (the demand was first reported by me, and The Toast has since announced that it's eliminating the demand from its contracts), I've been struck by the number of comments from writers who seem to think that a bad contract clause is not so very awful if (pick one) the publication is great; the people who run it are great; the bad contract clause is not always enforced. (See especially the comments thread on The Toast's post about the controversy.)

That's all very well. But (and I'm speaking generally here, not in particular about The Toast) this is exactly how writers get screwed: by making assumptions about a publisher's intentions, by letting their emotions overrule their business sense, and by forgetting that, in the author-publisher relationship, the publishing contract is the bottom line.

Here are some suggestions for changing those damaging ways of thinking.

  • Don't assume that every single word of your contract won't apply to you at some point. You may think "Oh, that will never happen" (for instance, the publisher's right to refuse to publish your manuscript if it thinks that changes in the market may reduce your sales). Or the publisher may tell you "We never do that" (for instance, edit at will without consulting you). But if your contract says it can happen, it may well happen--and if it does happen, can you live with it? That's the question you need to ask yourself when evaluating a contract.
  • Don't mistake "nice" or "responsive" or "professional" or even "crazy about my work" for "author-friendly." Remember, the lovely, enthusiastic editors you deal with when you submit your work probably didn't create the contract (they may not even be fully aware of its provisions). It's a sad truth of the industry that wonderful publishers can have shitty contracts. Don't let your warm fuzzy feelings push aside your business sense.
  • Don't make assumptions about what contract language means. If you don't understand the meaning of a clause, or aren't sure about its implications, don't guess. Get advice from someone qualified to provide it.
  • Don't rely on your publisher's assurance that objectionable contract language won't be enforced. Your publisher may be telling the truth--at least, up to the point that they give you the assurance. But even if they aren't just trying to get you to shut up and sign, circumstances may alter (what if management changes? What if the publisher sells itself?) and internal policies may shift. Promises that contradict contract language offer you absolutely no protection or guarantees (especially if your contract contains a clause like this one). Never forget that by signing a contract, you are giving your publisher the full legal right to enforce it.
  • Don't accept your publisher's claim that contract language means something different from what you think it means. This is a response you may receive if you attempt to negotiate changes, or bring a troublesome clause to your publisher's attention. Your publisher may be correct: the misinterpretation may be yours. But your publisher may also be unscrupulous or ignorant (many small presses don't properly understand their own contract language). If your publisher's explanation doesn't sound right, don't just take their word for it. Get a second opinion.
  • Don't let your publisher convince you that asking questions is a bad thing. Dodgy or incompetent publishers don't like pro-active authors, and may try to blow them off by claiming that asking questions is unprofessional, or ungrateful, or something similarly bogus. But asking questions is your right. Walk away from a publisher that won't let you exercise it.

No contract is perfect. You should always be able to do at least some negotiation--but even under the most favorable circumstances, you'll probably be giving something up. You may even decide to swallow an objectionable clause because of a great opportunity (I don't know of any writer, including me, who hasn't made this decision on occasion). But if you do decide to sign a contract with unfavorable language, do so in full understanding of the possible consequences. Not in ignorance, or assumption, or fear of annoying the publisher by being too inquisitive.

I'll close with an excellent tweet from author and editor Jane Friedman (if you aren't following her, you should be):

Words to live by.


C. M. Albrecht said...

I understand that some Chinese, in the past, had the practice of signing notes and contracts with paint that would soon fade away. Maybe some still do. Anybody who could invent the back scratcher has to be pretty smart.

Claude Forthomme said...

You make a crucial point here. I hope writers are listening to you!

Karen said...

I agree, not every writer is qualified to interpret the language of a contract. With that said, please allow me to clarify my previous post. I did not mean to suggest a clause - such as the one in the previous blog post - will unlikely be enforced by the publisher, I meant it will unlikely be enforced by the courts - and publishers know this. I dare say that no court in the USA will enforce a clause that limits rights worldwide and to perpetuity. And yes, I believe I am well-qualified to make this opinion given I am a writer and an attorney (albeit, not all attorneys are created equal) :)

Sue Bursztynski said...

I remember my very first publishing contract. It was long and complicated. I had no idea what half of it meant. So I paid some money to my local Society of Authors, who have lawyers to look at these things for you. It was actually not a bad contract, but there were bits that bothered me, so I asked my publishers, who cheerfully cut them. It was a big publisher, not a small press. One micro-press I dealt with had a contract I would never have signed if I'd seen it before the book was written, but I had a deadline to meet and the woman waited till the book was written before sending the contract. Then she ended up not having the money to publish it or the others she had commissioned anyway - and publishing was the ONLY commitment she had in that dreadful contract. So she gave us all our rights back. I guess I should be glad that the odds "permanently" and "irrevocably" weren't in there. But don't worry, I will never again write to commission without seeing the contract first. Education publishers have some awful contracts, especially here in Australia, where they need a lot of rights so that the American publisher can get on with it - but nothing quite as bad as the one you mention, Victoria.

tonyl said...

Thanks for this. I followed the Passive Voice here.

I hope people who need this information see it. To that end, not that I have a following that a) needs it or b) is very large at all! I’ve reblogged it at my blog, tony’s miscellenaia,

Anonymous said...

And remember, a hastily signed contract may be in force forever. When I got my PhD degree, I was told I had to sign a contract giving a microfilm company the right to make my dissertation available at libraries. So I signed. It sounded like a non-profit, scholarly arrangement. Then, during the dot-com boom, an entrepreneur bought up the rights to those dissertations and started to sell them for profit. I was really appalled... but I had signed the contract.

Jean Wilson Murray, MBA, PhD said...

Another to add to the list: Don't ASSUME (we all know what that stands for) that something the publisher said has the same force as what's written in the contract. In a lawsuit, what someone promised but didn't put in writing can't be used. As I always say, "If it isn't in writing, it doesn't exist."
If a publisher promises to do something for you ("We'll make sure your books get onto Amazon"), make 'em put in writing.
<a href=">Why business agreements should be in writing</a>

Britni Patterson said...

This is such an important thing for authors to know and read, especially in today's publishing climate!

Unknown said...

An excellent post. People all should remember this doesn't apply just to writing but to all contracts, all the time. Trusting the kindness of strangers is sweet at times, but not when you have signed a legal document.

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