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

Jay Lake
Date: 2008-06-12 06:11
Subject: [process] Contracts
Security: Public
Tags:process, publishing, writing

suricattus with a post on literary contracts. Go read it. I’ll still be here when you get back.

Got that? Good.

I accidentally got involved in a mailing list argument a couple of years ago when a fan made a mournful comment about how a certain writer had been screwed by a bad contract. Their point was that if not for the perfidy of the publisher, this writer’s books would still be available for readerly enjoyment.

Being the special kind of idiot that I am, I replied that a writer is always responsible for the contracts they sign. If they don’t understand something in the contract, they should seek reliable advice until they do understand. The point is that we as authors are responsible for our own careers.

(For my troubles, I received a scathing critique of my email .sig, as an example of how I was a fool who didn’t know what I was talking about.)

But we are responsible. Editorial ninjas don’t break into my house, place a pen in my hand and force me to sign a contract. Nothing is non-negotiable. That doesn’t mean the other party is required to negotiate, it simply means that a statement that a contract is non-negotiable is itself a negotiating position. Part of the trick is in knowing what’s reasonable to negotiate, and part of the trick is in knowing what your no-gos are.

In my case, I often have to alter contracts to protect my by-line, since my copyright name is not the same. I have only ever twice signed contracts releasing all my rights to a story, and in both cases it was work for hire short fiction with someone else’s intellectual property. I have asked for things I did not get, and I have occasionally gotten things I did not ask for.

The point is that your contract is yours. No one else understands your interests as well as you do, not your agent, your editor, your publisher, your mom, or your best friend. If you don’t understand your interests as represented in the contract, fix that before you sign.

Now go read suricattus‘ post again. She said all this much more elegantly than I could.

ETA: C.E.P. with an interesting legal comment on literary contracts here.

Originally published at jlake.com. You can comment here or there.

Post A Comment | 27 Comments | | Link






User: dirkcjelli
Date: 2008-06-12 13:38 (UTC)
Subject: (no subject)
While I agree with you entirely in terms of taking personal responsibility, there is also an obvious power differential between the author and the publishing house... unless the author also happens to have a crack team of lawyers in his or her sock drawer.
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Jay Lake
User: jaylake
Date: 2008-06-12 13:41 (UTC)
Subject: (no subject)
Sure. Unfortunately, that's life.

One of the terrific things about mailing lists, LiveJournal, etc., is the ability to reach out a tap a wide range of experience which provides some (at times considerable) offsetting power.
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squirrel_monkey
User: squirrel_monkey
Date: 2008-06-12 15:03 (UTC)
Subject: (no subject)
The writer always have the power to walk away from a terribly bad contract which the publisher refuses to negotiate.
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User: dirkcjelli
Date: 2008-06-12 15:06 (UTC)
Subject: (no subject)
But does the writer have the power to spot a single clause which turns a perfectly normal contract into a terribly bad contract?

I'm not saying the author can't walk away from a contract demanding their spleen in return for publishing the book they've spent over a year working on... I'm questioning whether they'll be able to insure there is no 'gimmie your spleen' clause.
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User: dirkcjelli
Date: 2008-06-12 15:07 (UTC)
Subject: (no subject)
And, yes, the internet now allows authors to point out "oh, by the way, be sure to watch out for 'spleen' clauses"... but they've got more pens and eyeballs on the ground, while the author and his/her agent only have themselves.
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Jay Lake
User: jaylake
Date: 2008-06-12 15:16 (UTC)
Subject: (no subject)
You are absolutely right. This is where "business trust" comes in. I have business trust with Tor. I trust them to maximize their return on the contract, and I work to maximize my return, which results in a (relatively) balanced deal. If they were seeking to screw me to the wall, they could probably manage that despite the best efforts of both me and my agent. Part of my business trust with them is founded on my perception that Tor is both historically and currently interested in building up authors over time to maximize their long term returns, part of it is founded on my experiences with them to date.

I mean, they could nix my career (in its current phase) by simply dropping me. Why do they need a bad contract?

By contrast, if I were to make a deal in Hollywood, you know I'd be up to my years in $500/hr entertainment lawyers, because my business trust in the Hollywood studio system is absolute zero. I would expect to be screwed royally with fringes on, and pay accordingly to avoid that outcome. Either that or I wouldn't do the deal.

Edited at 2008-06-12 03:17 pm (UTC)
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(no subject) - (Anonymous)
User: dirkcjelli
Date: 2008-06-12 22:31 (UTC)
Subject: (no subject)
And how many authors can afford health care with the compensation you provide, assuming they work 40 hours a week?

You're exploitive (or rather, you work for an exploitive company, like just about every other company), and I'm unsympathetic... also, not an aspiring author.
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(no subject) - (Anonymous)
User: dirkcjelli
Date: 2008-06-12 22:43 (UTC)
Subject: (no subject)
Keyword:politics/culture
... and that is supposed to convince me you're not using your superior strength to exploit content creators how, exactly?
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REudaly
User: reudaly
Date: 2008-06-12 13:41 (UTC)
Subject: (no subject)
I totally agree with you.

I won't say that publishers won't try to sneak things in that make the deal as sweet as possible for THEM - heck, that's their JOB/. Just like it's my job to get the best possible deal for me.

Unless the contract is literally chisled in stone, nothing's permanent. And if you don't ask, how can you get?

Even in a "take it or leave it" choice, there's still a choice.
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(no subject) - (Anonymous)
Jay Lake
User: jaylake
Date: 2008-06-12 15:22 (UTC)
Subject: (no subject)
I used to know a mortgage broker who dreaded working with engineers. She called it "the engineer close", when the BSME or MSEE or whatever would sit down and read every word, comma and space of the 50+ documents in a real estate closing. And question many of them...
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User: dirkcjelli
Date: 2008-06-12 15:35 (UTC)
Subject: (no subject)
Perhaps this has colored my interpretation above... I've literally heard them telling the Harvard Business School types that their job is to exploit engineers... after all, they can always find more engineers. Similarly, they can always find more authors... though I'm glad to hear Tor has a somewhat more benign business philosophy.
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Jay Lake
User: jaylake
Date: 2008-06-12 15:50 (UTC)
Subject: (no subject)
Authors are more like movie stars or musicians than engineers -- they are not freely substitutable, and the brand value is highly distinctive to the individual provider.

Of course, the movie and music business are legendary for screwing the content providers, so maybe that's not a good example.
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User: dirkcjelli
Date: 2008-06-12 15:52 (UTC)
Subject: (no subject)
Here's hoping they don't think to do the "Prince" thing, and create a fictive author's name for which authors write... actually, I seem to recall they already do this with romance novels.
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Laura Anne Gilman
User: suricattus
Date: 2008-06-12 16:03 (UTC)
Subject: (no subject)
I seem to recall they already do this with romance novels.


It's done for romance, for mystery, for men's action adventure, etc. The term is "House Name" and it's legend in, for example the Hardy Boys/Nancy Drew series, not to mention most if not all series westerns. Some folk look down on it as being beneath them, but it keeps a section of the reading public reading, and gives writers with the ability to write to a series style the chance to pay down the bills and put a little aside, too. Same as with media tie-ins, which are sometimes down under our own names, and sometimes not.

You still get a contract that spells out your rights and renumerations, and it's often a reasonable (although not overly-generous) deal for the work required.

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Jay Lake
User: jaylake
Date: 2008-06-12 16:34 (UTC)
Subject: (no subject)
That would be work for hire...a different beast.
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REudaly
User: reudaly
Date: 2008-06-12 15:33 (UTC)
Subject: (no subject)
I stand corrected... but at least with chisled in stone, it takes many years for it to fall apart - if one is very lucky.
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(no subject) - (Anonymous)
REudaly
User: reudaly
Date: 2008-06-12 15:37 (UTC)
Subject: (no subject)
Sorry... I would LOVE to have an engineer check over contracts...

Break things, put them back together (hopefully better than they were before).

Hey, get a crack team of engineers and doctors, you can have the $6 Million Contract... with all the nifty bionics included...
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Twilight: Imperious
User: twilight2000
Date: 2008-06-12 15:10 (UTC)
Subject: (no subject)
Keyword:Imperious
While I completely agree with you, it's fair to note that until relatively recently, writers (especially first time ones) had little recourse to learn what was good and what was bad about contracts from anywhere other than the publisher that gave it to them.

The 'net has completely changed how writers discover information about what's acceptable and what's gonna hurt them in the long run. Even the decently smart ones could get nailed with little outside input -- just ask Cherie Priest (a story she freely shares on a pretty regular basis about a less than scrupulous "publisher" (editor?) and a nightmarish contract as I remember).
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Jay Lake
User: jaylake
Date: 2008-06-12 15:19 (UTC)
Subject: (no subject)
Oh, it can be rough trade even now. There are a couple of independent presses I wouldn't touch with a barge pole. (No names will be mentioned for liability reasons, but when people come to me privately for contract advice, I am very honest and free with my information.)

The thing is, the trade press and their (rough) equivalents in the magazine/anthology business are in it for recurring brand value of the writer. In terms of their pure self-interest, a deal which builds the writer's name and keeps them loyal to the house is always a better bet than a one-off screw job.
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User: barbhendee
Date: 2008-06-12 15:33 (UTC)
Subject: (no subject)
I never even see our contracts until Ashley (our literary agent) has been in negotations with our publisher for several months. He reads everything first, and he always asks for changes.

I completely trust Ashley. He's been in the business for many years--and watched it go through many changes.

Twice in the past few years, a clause in a contract has been so convoluted, he took it to his own lawyer for clarification.

Gosh, Jay, I do feel bad that I can't follow all the language in these contracts myself (and I have a master's degree in English). But I really do need Ashley to go the contract line by line. I always read it carefully myself before I sign it, but I trust him to catch anything dangerous.
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Nathan: sky
User: mastadge
Date: 2008-06-12 15:40 (UTC)
Subject: (no subject)
Keyword:sky
That master's may be your problem. Legal documents rarely have much to do with anything you'll learn in an English lit or creative writing course.
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User: barbhendee
Date: 2008-06-12 15:44 (UTC)
Subject: (no subject)
Nathan, is this you? Goodness, I haven't talked to you in forever. I hope all is well.
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Laura Anne Gilman
User: suricattus
Date: 2008-06-12 16:07 (UTC)
Subject: (no subject)
Gosh, Jay, I do feel bad that I can't follow all the language in these contracts myself (and I have a master's degree in English). But I really do need Ashley to go the contract line by line. I always read it carefully myself before I sign it, but I trust him to catch anything dangerous.

Not being Jay but since I seem to have started this whole thing, jumping in wth my .02...

Absolutely you have your agent read everything over! That's one of the things you have the agent for. (and tell Ashley I said hi!) Hell, I used to sit on the other side of the desk, and I let Madame Agent (disclaimer: Jay and I are Jen Jackson stablemates) go over everything before I do my thing -- I'm checking the final product, not the pre-fiddly, pre-extended discussion version.

The point is, you have to know what it is you're agreeing to -- it's YOUR name on the dotted line, not your agent's.

(I also read through every line of every real estate contract I've entered into, even when I didn't understand all of it perfectly, because, again, is MY name on it...)
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User: tsheehan
Date: 2008-06-13 00:46 (UTC)
Subject: (no subject)
Agreed. Considering you can get a thirty minute free consultation with a contract lawyer (at least in Canada, I dunno about the States), there's no reason a writer should not understand their contract.
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User: (Anonymous)
Date: 2008-06-13 05:19 (UTC)
Subject: (no subject)
With all due respect, that's a very bad idea. Literary and intellectual property contracts are unique beasts. A "contract attorney" cannot understand them... let alone in 30 minutes.

This is one of those times that the fact that it's a contract is a lot less meaningful than the context of the contract. I'd go off on my usual rant against the bar associations and their collective refusal to allow lawyers to admit that lawyers are specialists... but I do that often enough on my own blawg.

— CEP
http://www.scrivenerserror.com
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User: tsheehan
Date: 2008-06-13 21:29 (UTC)
Subject: (no subject)
Hmmm, interesting…
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