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[process] Contracts - Lakeshore
An author of no particular popularity

Jay Lake
Date: 2007-07-17 16:53
Subject: [process] Contracts
Security: Public
Location:coffee house
Tags:books, process, stories, writing
Another question which crossed my inbox recently was about what to watch out for in contracts. I've posted on this before, but I'm too lazy to look through my 17,246 back posts to find it, so I thought I'd take it from the top.

First of all, I am not an attorney. This is not legal advice. I am not a literary agent. This is not business advice. These are my opinions and experience, presented as possible thinking guide. With luck, smarter people than I will contribute in comments to correct my errors and misstatements and present further wisdom.

New York novel contracts are much bigger than short story contracts in pretty much every sense of the term. Rule number one of a novel contract is to have an agent. If you don't have an agent, go get one. (This varies widely with independent press novel contracts, which tend to be much more modest and resemble short story contracts.)

However, even with an agent, you are responsible for your own career. No one cares more about your work than you do. That means you have to read and understand every damned word of those things.

If you have an eye for this sort of work, go find the appropriate SFWA model contract and read it. That will help.

Also, remember that while contracts are inherently adversarial (that's how our legal system works), they do not have to be inherently exploitative. The role of a contract is to preserve and protect the interests of both parties.

Know what it is your contract is doing. In a very loose sense, a literary contract is a license you grant your publisher to reproduce a copyright of which you are the owner. (This is different for work-for-hire, which is a whole 'nother animal about which I know even less than I know about original fiction. If you're doing work-for-hire, go research that very carefully.) Copyright licenses are divisible, but not in a statutory way. This means there is no legally defined meaning of "First rights", for example. There are certainly customary meanings, which are reflected in contracts, but the specific rights you are licensing to your publisher are always negotiable.

Note that in this sense, "negotiable" means they can say "no." So can you.

So look carefully at what rights you are licensing. English only, or foreign language rights? United States, North American, or world English rights? Those are pretty often subjects of negotiation.

Look even more carefully at derivative and subrights — electronic reproduction, film, television, gaming. Don't give those away to a print publisher ever, without a damned good reason that I can't imagine right now.

Make sure you understand exactly what you're licensing.

Look at the reversion clause. When does the book or story come back to you? If it comes back a certain length of time after a book is declared out of print, is "out of print" defined in your contract? What precisely does that mean?

Look at the exclusion clause. (As far as I know, this mostly applies to short fiction.) How soon can the story be resold? Are there exceptions for Year's Best or single-author collections? Is there a generic exception with written permission of the publisher.

In my case, I always look carefully at copyrights, and usually insert language about by-lines and promotional mentions. This is because my cover name, "Jay Lake", is not my legal name. There's nothing nefarious here, "Jay" is a nickname, but all my copyrights and contracts are held by some character named "Joseph E. Lake, Jr." (You can find him at the front of all my books.)

There's other fairly standard stuff, audit clauses and indemnification clauses and so on. Read and understand those.

As for payments, royalties, that sort of thing, I won't presume to give business advice here. It would be meaningless in the abstract if I did, and likely wrong in the specific even if I knew the specifics. That's what your agent is for.

Advice of counsel is a wonderful thing, but if you run your literary contracts past an attorney, you want to be sure you're dealing with an attorney who normally handles such things. A software intellectual property attorney, for example, will go nuts on a literary contract, waste a lot of billable time to you, and really irritate whoever you're negotiating with.

One last thing. Everything is negotiable, but that doesn't mean people will negotiate everything. You need to know what's important to the people you're negotiating with. For example, payment schedules might be flexible (cash flow) but royalty rates might not be (revenue). Understand what's reasonable, and act reasonable. I've never gone wrong trying to be nice about things, even when I have been irritated or upset.

Let the corrections and flaming begin in comments.
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Caitlin Kittredge
User: blackaire
Date: 2007-07-18 00:26 (UTC)
Subject: (no subject)
One thing I'd add for book contracts is look at your option clause: whether or not your current publisher has an option on your next book-length work of [x] words in [x] genre.
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Jay Lake
User: jaylake
Date: 2007-07-18 00:28 (UTC)
Subject: (no subject)
Oh, duh, of course. Thank you very much. I knew that, I swear.

And in that vein, I've seen exploitative book contracts that optioned the next five books for essentially nothing. This gets a new author excited, thinking "five book sale!", when what's really going on is the press is tying up their output in case they suddenly get big. You wouldn't see this from a New York press, I should think, but a few independent presses have tried to pull it.
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scarlettina
User: scarlettina
Date: 2007-07-18 00:30 (UTC)
Subject: (no subject)
Heh. Took a little too long writing my option clause comment there....
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scarlettina
User: scarlettina
Date: 2007-07-18 00:29 (UTC)
Subject: (no subject)
Nice coverage.

I'd also tell novelists to look carefully at the option clause. Such a clause usually gives the publisher the right of first refusal on your next novel-length work. Things to be aware of:

--Is the option for your next novel (which could be anything), your next novel in this series, your next novel in this genre? The more specific the option language is, the more control you have over your career.
--How long does the clause allow the publisher to retain the right of first refusal on your next work? I've seen options at 30, 60, and 90 days from submission of the required material. You need to decide what's right for you.
--What material does the option clause require, i.e., an outline, three chapters, a detailed paragraph?

This all assumes that your relationship with a publisher will be a productive and profitable one. Some options (long options, broad categories) can feel oppressive if things haven't gone well.

All of these elements are negotiable. The option clause is something I'd never heard of until I looked at my first contract, and it doesn't get discussed often which is why I bring it up here. There are more important clauses in a novel contract, but this one often gets forgotten.
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Sean P. Fodera
User: delkytlar
Date: 2007-07-18 14:29 (UTC)
Subject: (no subject)
This all assumes that your relationship with a publisher will be a productive and profitable one. Some options (long options, broad categories) can feel oppressive if things haven't gone well.

In all honesty, if things are not going well between an editor and an author, most editors will be loathe to take on an option work by that author. They are much more likely to pass on the option work if things have become unpleasant with an author. (This is not to say that some authors and editors don't thrive on a heated adversarial relationship, but that sort of thing is rare.)

A bad relationship with the editor is one simple way to break an option. There are any number of other ways. One very prominent literary agent once told me that he could list over 50 ways to break an option without even having to get inventive.

The key though, is as scarlettina says, to keep the option as narrow as possible, and for as short a time as possible.
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When life gives you lemmings...: Bucky the human
User: danjite
Date: 2007-07-18 00:34 (UTC)
Subject: (no subject)
Keyword:Bucky the human
OK, the option clause is covered.

I would harp more on the importance of defining technical publishing (not legal) terms in an appendix; words such as "first rights" or even "outline".

I would also add that when editing a contract, a tremendous amout of good can be done by judiciously adding the word "reasonable" as a modifier to clauses one doesn't like but that the publisher is hesitant to otherwise change.
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Sean P. Fodera
User: delkytlar
Date: 2007-07-18 14:16 (UTC)
Subject: (no subject)
Most large publishers will have most terms defined within the contract itself. Very few (none in my experience) will add an appendix of definitions.

The word "reasonable" is not always the best catch-all. What is reasonable to the author may not be reasonable to the publisher, and vice-versa. For example, if the contract states that the author will return corrected page proofs within a "reasonable time", and the publisher is set to go to press in two weeks time, is it reasonable for the publisher to expect the page proofs back in five days? Seven? Nine? Many contract departments and legal departments do not like the word "reasonable" for this reason. Unfortunately, alternatives to using this word vary depending on the nature of the clause where one might want to use it, so I can't really offer any other specific advice on how to remedy these sort of issues.
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Joanne Merriam
User: joannemerriam
Date: 2007-07-18 00:41 (UTC)
Subject: (no subject)
Here's some Canadian info.
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Keith R.A. DeCandido: writing
User: kradical
Date: 2007-07-18 01:21 (UTC)
Subject: (no subject)
Keyword:writing
It's a minor thing, but I always insist that my contracts include a byline clause. If nothing else, it gives them documentation on how to spell my name....
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Jay Lake
User: jaylake
Date: 2007-07-18 01:24 (UTC)
Subject: (no subject)
In your case, yah.

"Keith" is so easy to misspell.

:: ducks and runs ::

Seriously, I've been on a few ToCs and at least one cover as "Joseph". It's a smaller pain, but it's mine.
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David D. Levine
User: davidlevine
Date: 2007-07-18 02:38 (UTC)
Subject: (no subject)
you grant your publisher to reproduce a copyright of which you are the owner.

That's a copyrighted work, of course.
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Lawrence M. Schoen: Publicity shot
User: klingonguy
Date: 2007-07-18 11:53 (UTC)
Subject: (no subject)
Keyword:Publicity shot
I have considerable problems with editors who want to drop off my middle initial. I'm sensitive to this because there's another Lawrence Schoen who is also a psychologist. I first stumbled over his name when doing an database search of psych articles and came up with a title like "Deviant Masturbatory Habits of Mongoloid Chidren."

I've been using my middle initial on my byline ever since.
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Jay Lake
User: jaylake
Date: 2007-07-18 12:59 (UTC)
Subject: (no subject)
I think I wrote that...
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Sean P. Fodera
User: delkytlar
Date: 2007-07-18 14:31 (UTC)
Subject: (no subject)
And all this time, I thought you were that same Lawrence Schoen. I was hoping the Conroy stories would eventually lead to your follow-up to DMHMC.
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Sean P. Fodera
User: delkytlar
Date: 2007-07-18 14:24 (UTC)
Subject: (no subject)
Look even more carefully at derivative and subrights — electronic reproduction, film, television, gaming. Don't give those away to a print publisher ever, without a damned good reason that I can't imagine right now.

The problem here is that most publishers insist on electronic reproduction rights. Nearly all the major houses have ebook programs, and few are willing to go without these rights since it is obvious that they are going to become valuable during the course of the contract. Realize that most publishing contracts are for the full term of copyright. While there are loopholes that may allow you to get your rights back soon, these days it means that you've given these rights away until you are long dead and buried. The electronic rights may not be valuable today, but the publisher hopes to keep the contract profitable 5, 10, 25 or 50 years from now. Granted, noone is doing ebooks properly (ie: prices are too high, encryption is considered annoying, and most publish in proprietary formats), but most publishers will still fuss if you try to withhold those rights.
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