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An author of no particular popularity

Jay Lake
Date: 2007-05-06 16:52
Subject: [writing] Contracts — You are responsible for your own career
Security: Public
Tags:process, writing
There has been a bit of a dust up over anthology contract funkiness on a mailing list I'm on. The details aren't mine to share, but the situation is sufficiently common that I thought it bore comment here. I can sum this up in seven words:

"You are responsible for your own career."

No one cares about your writing more than you do. No one cares about your copyrights more than you do. No one cares about your career more than you do. Not your mom, your significant other, your editors or your agent, should you be so fortunate as to have representation. When you sign a contract, you and only you are binding yourself to the terms of the agreement that's drawn up therein.

That's true whether you're a new writer with your first sale wriggling on the hook or a SFWA Grand Master with a bibliography from here to Cleveland.

This means that no matter how much you might want a sale or to be in a certain market, you need to read the contract. When you read that contract you have both a right and a duty (to yourself) to make sure it has the conditions which are right for your career.

I am not an attorney. I am not competent to give legal advice, and I am not giving it now. However, as writers we should all be prepared to read and understand our contracts. To that effect, on a peer basis, here's a few observations from me:

  • No contract is non-negotiable. A publisher can certainly decline to negotiate, but that's a specific business decision on their part, not "just the way things are."

  • Anyone who tells you a contract can't be negotiated isn't playing fair with you, and should not be trusted. Note this is different from declining to negotiate as noted above, which is them taking responsibility for standing by the terms they've offered.

  • A contract sets terms between two people with competing interests. It's not a matter of faith or trust or what everyone else in the anthology agreed to, it's a matter of you looking out for your career.

  • Common pitfalls in short story contracts1 include an excessive exclusionary period, a poorly-defined exclusionary period, no provision for exclusionary exceptions in the event of Year's Best selection or a single-author collection, excessive claim of rights, and oddities in copyright indemnification.

I'm not saying you should approach contracts with fear and suspicion. The vast majority of publishing contracts I've signed were clean and fair as presented to me. The contracts where I've asked for changes in exclusionary periods, rights claims and so forth have gone well. I almost always have to change the provision about copyright and by-line, because my copyrights are registered to "Joseph E. Lake, Jr." while my by-line is "Jay Lake."

It's easy for me to preach about holding firm on bad contracts. I've got bookshelves full of sales. When you're just starting out, the desire to be in print can be overwhelming. You might, as a matter of deliberate choice, sign a contract with one or more flaws if the publisher declines to negotiate. I don't recommend that, but I can't say what you'd do.

I can say, again, that you are responsible for your own career. Being pressured or shamed about asking for contract changes is at best unprofessional business practice, if not a signal of disaster or outright deception. In the long run, I can confidently predict you'll be much happier if you do it right.

1. Novel contracts are a whole different animal, though the principles about preserving your interests remain the same. I strongly recommend having an agent for any novel contract of substance, and especially any complex novel contract, such as those from a major house.
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User: kara_gnome
Date: 2007-05-07 02:37 (UTC)
Subject: (no subject)
What is an exclusionary period, and what would be excessive, do you think? Or maybe a better question is what do you think is fair? :)
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Jay Lake: writing-bookshelf
User: jaylake
Date: 2007-05-07 02:51 (UTC)
Subject: (no subject)
The "exclusionary period" is the time during which you can't resell the story as a reprint. It might be anywhere from three months to a year or two, depending on the nature of the market. Anything more than two years is just inane. (I've seen a contract with a ten-year period.)

I personally wouldn't sign on to an exclusionary period of more than a year without a pretty strong reason.

I also always ask for a clause acknowledging that the publisher will consider reasonable requests for exemptions from the exclusionary period. That's not binding on any particular outcome, but with that clause the publisher acknowledges that your story might be included in YB or a collection.
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User: jonathanstrahan
Date: 2007-05-07 05:06 (UTC)
Subject: (no subject)
I'd agree. You'd want to be paid a fairly extraordinary amount of money for an exclusionary period of more than 12 months. The only one I know of was for Silverberg's LEGENDS anthology, and they paid a LOT for that so the publisher presumably felt they needed time to recoup their investment. The normal period is anywhere from three to twelve months, and may or may not include an exemption for year's bests and/or your own collection.
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User: joycemocha
Date: 2007-05-07 02:51 (UTC)
Subject: (no subject)
One of the best stories I've read about taking responsibility for your own career comes from a source others might not think much about--Mary O'Hara, author of *My Friend Flicka.*

What few people know about O'Hara is that, before she wrote *Flicka* and the two sequels (Thunderhead and Green Grass of Wyoming), she'd been a successful scenario/continuity writer in Hollywood during the silent film era. *Flicka* was written as an attempt to break into Hollywood as an original film, after things got tough on her Wyoming ranch (she and her second husband had gone into sheep farming at the beginning of the Great Depression. She'd been writing and submitting short stories as an attempt to help pull them out of the financial struggle they were in.

She took the Flicka story to a trusted story editor friend in Hollywood. He advised her to expand the original short story into a novel, sell it, and have her agent sell the rights to the film. But he warned her to watch out for and cross out three words in any contract she might be asked to sign in New York--"and all rights."

O'Hara managed to scrape together the money to take a writing course from Whit Burnett, then the editor of *Story* magazine. Burnett liked the Flicka story, and said he would buy it. She got a recommendation for an agent (in those days, they had agents for short stories, without ever selling a novel), and by the time her course had ended, she'd sold two other stories besides the Flicka story.

Burnett tried to claim all rights to the Flicka story, based on a contract written on the back of her check. O'Hara's agent advised her not to do that, and sent it back. He sent her another check, with the same writing. She never signed the check. Burnett later admitted that if O'Hara had signed that check, he would have had half of all her anthology rights (and lord knows what else!).

Of course, O'Hara had eventually graduated from being a studio continuity writer in Hollywood to being a successful freelance continuity writer with a reputation for fixing problematic scenes. She had written her own contracts, and her first husband had been a lawyer. So she wasn't breaking into this contract business cold.

Nonetheless, it was an interesting story to read and ponder.

(Source: "Flicka's Friend," by Mary O'Hara, New York: G.P. Putnam, 1982)
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User: sidravitale
Date: 2007-05-07 03:19 (UTC)
Subject: (no subject)
I just want to leap on Jay's bandwagon here, as someone who'll be a lawyer in a few months, as well as being a writer, and reiterate what he says:

Contracts are always negotiable. You're contracting to provide X in return for Y (generally money). You have as much power, and as much say, as the publisher that drafted the contract. Now, since it's the publisher drafting the contract, you need to read it with that in mind. By way of example, I negotiated changes to my contract for the WOTF anthology, b/c I didn't want to give up certain rights. I didn't need the other side's permission to do that, we're two parties contracting together.

If you can't come to a meeting of minds and a contract that both of you agree to, then walk away.

If you don't know what stuff means, don't just sign off on it. (I want to just say "ask me", but it's more complicated than that: I'm not a lawyer *yet*.)

Side note: One thing I make a point of looking for when contracting with an electronic publisher is archiving. Are they asking to archive my story? If so, for how long?
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User: manmela
Date: 2007-05-07 06:57 (UTC)
Subject: (no subject)
I think a lot of this applies whether it's a writing contract or a contract for a new cell phone (except in the latter you probably can't negotiate). But my point is that it's important to know what you are signing up for. Read the contract and ask questions.

I recently had to sign an NDA for seeing some Doctor Who designs, and the PR person was a little put out when I started going through the contract checking it.
"It's just an NDA" she said, "everyone else has signed them"
And then I think she thought I was just being difficult, because she gave me one of those looks to say "You're not reading this, you're just being stubborn." However, I was scan reading it. I wanted to know what the BBC would sue me for saying... a pretty important piece of information to know. The PR person even sighed when I asked for a copy, but I think with any contract that's a fair thing to ask for.

The point is, don't be scared by contracts, even if they look like legal mumbo jumbo. Go in with the attitude of "I don't care how dumb I look, if I don't understand something I will ask", even if you get a person like my BBC PR person.

I would wager that most publishers (I only have experience with non-fiction currently) don't want to rip you off (word would soon get around if they did that), but they probably want to maximise their investment and lock your story down as "theirs" for as long as possible across as many formats as possible. How long and how much is probably the main area of negotiation.
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(no subject) - (Anonymous)
Jay Lake
User: jaylake
Date: 2007-05-07 13:24 (UTC)
Subject: (no subject)
Actually, you do every time you click "I agree" on a software or Web site registration.
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(no subject) - (Anonymous)
User: jtdiii
Date: 2007-05-07 22:52 (UTC)
Subject: (no subject)
Remember that little clause: "has the right to change this contract at any time by posting a new version at (insert location)"?

You have to wonder about that phrase, and wonder about whomever came up with it.
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