I’ve been reading a few posts from others recently about how
much more savvy/strict traditional publishing houses are being with regards to
contracts. Kristine Kathryn Rusch
mentioned this when she talked about how easy it used to be to get back the
rights to your work after a few years.
Now, however, most publishing houses are holding onto them in accordance
with the terms of the contract, which usually specify rights pertain to the
length of the copyright(life of the author plus 75 years). This kind of digging in struck me as
absurd. It may be in the best interests
of publishers to do this, but it’s not in the best interests of writers. So here are a few red lines I believe writers
should insist on if they enter contract negotiations.
1. Never, ever, ever forfeit the rights to your work in perpetuity. If the publisher decides that your work is no longer profitable, you have no legal recourse to regain those rights. Yes, maybe you’ll run into a nice person who will revert them to you, but that’s unlikely because it’s not in the best interest of the publisher. There are various ways you can get the rights back. One would be to insist they be returned to you after ten years. Another might be to include a clause that reverts the rights back to you if the book fails to sell a certain number of copies in a certain period of time(10,000 in five years?). This gives you a way to “fire” the publisher and possibly bring your work out independently to see if you can do any better.
2. Similarly, never agree to a non-compete clause. These are put in by publishers to ostensibly make it so that your work isn’t crowding out other work by pushing too many novels at once. I’ve never bought this hogwash because books aren’t fungible. Such a clause limits your right to earn a living. As a corollary, right-of-first-refusal clauses indenture you to a publisher since they can hem and haw and never print your work, yet give you the impression they just might. They can keep you on a thread forever. If they want right-of-first-refusal, insist that it’s time sensitive, ie – the publisher has three months from the postmarked date of submission to accept or refuse your work, and failure to meet that deadline constitutes refusal, meaning you can look elsewhere to publish.
3.. Insist on being paid more than twice a year. Most publishing houses pay on a semi-annual basis. This is ridiculous since they don’t earn money semi-annually. At worst, insist on being paid quarterly, preferably monthly. And demand to see the payment statements from your agent so that you know exactly how much the royalty rate is and how much is going where.
4. Always, always, ALWAYS have the contract reviewed by a third party…and your agent doesn’t count. The relationship between publishers, writers, and agents is not what it once was. It is in the agent’s vested interest to stay in the good graces of the publishing houses, so they’ll often tell you things are hunky dory when they’re not. Remember, they need publishers to buy their clients’ work, and since there are now so few publishing houses, they can’t just take that work somewhere else. Also, all of these publishers know each other, so if an agent pisses off one house, others will hear about it. At the very least, have an intellectual property attorney look at the contract and explain it to you. It’ll cost several hundred dollars, but it’ll be worth it.
5. Hold onto as many rights as you can. Traditional publishers are good for getting your hardcover into stores, but they have no more access to the digital market than you do. You need a publisher for editing and paper, not for the digital medium. Additionally, seeing as there’s not yet any movie offer, why does the publisher need any movie or TV rights to your work? Shouldn’t your agent be dealing separately with any studio or producer? At the beginning of a contract negotiation, publishers will seek out rights that aren’t currently relevant, hoping you’ll either not care or will be so desperate to get signed that you’ll give away the farm. Don’t do it. If they insist on grabbing some of these rights, at least demand a higher royalty rate.
Going into contract negotiations can be scary, especially when you’re a newbie who is pining to be signed. Publishers know this, so they’ll use what they perceive to be a superior bargaining position against you. You have to be willing to walk away. Twenty to thirty years ago, the market was more closed, so you had to deal with their leverage, but there were also more of them. While it could be difficult, you could seek out a different publishing house and try for a better deal. That’s no longer the case in either instance. There are fewer houses, but there is more access to the market. If you won’t walk away when they want to cross one of your red lines, then just go ahead and put shackles on your wrists. Sorry if that’s harsh, but that’s what you’re doing if you’ll agree to anything just for the sake of saying you’ve been published by a major house.
1. Never, ever, ever forfeit the rights to your work in perpetuity. If the publisher decides that your work is no longer profitable, you have no legal recourse to regain those rights. Yes, maybe you’ll run into a nice person who will revert them to you, but that’s unlikely because it’s not in the best interest of the publisher. There are various ways you can get the rights back. One would be to insist they be returned to you after ten years. Another might be to include a clause that reverts the rights back to you if the book fails to sell a certain number of copies in a certain period of time(10,000 in five years?). This gives you a way to “fire” the publisher and possibly bring your work out independently to see if you can do any better.
2. Similarly, never agree to a non-compete clause. These are put in by publishers to ostensibly make it so that your work isn’t crowding out other work by pushing too many novels at once. I’ve never bought this hogwash because books aren’t fungible. Such a clause limits your right to earn a living. As a corollary, right-of-first-refusal clauses indenture you to a publisher since they can hem and haw and never print your work, yet give you the impression they just might. They can keep you on a thread forever. If they want right-of-first-refusal, insist that it’s time sensitive, ie – the publisher has three months from the postmarked date of submission to accept or refuse your work, and failure to meet that deadline constitutes refusal, meaning you can look elsewhere to publish.
3.. Insist on being paid more than twice a year. Most publishing houses pay on a semi-annual basis. This is ridiculous since they don’t earn money semi-annually. At worst, insist on being paid quarterly, preferably monthly. And demand to see the payment statements from your agent so that you know exactly how much the royalty rate is and how much is going where.
4. Always, always, ALWAYS have the contract reviewed by a third party…and your agent doesn’t count. The relationship between publishers, writers, and agents is not what it once was. It is in the agent’s vested interest to stay in the good graces of the publishing houses, so they’ll often tell you things are hunky dory when they’re not. Remember, they need publishers to buy their clients’ work, and since there are now so few publishing houses, they can’t just take that work somewhere else. Also, all of these publishers know each other, so if an agent pisses off one house, others will hear about it. At the very least, have an intellectual property attorney look at the contract and explain it to you. It’ll cost several hundred dollars, but it’ll be worth it.
5. Hold onto as many rights as you can. Traditional publishers are good for getting your hardcover into stores, but they have no more access to the digital market than you do. You need a publisher for editing and paper, not for the digital medium. Additionally, seeing as there’s not yet any movie offer, why does the publisher need any movie or TV rights to your work? Shouldn’t your agent be dealing separately with any studio or producer? At the beginning of a contract negotiation, publishers will seek out rights that aren’t currently relevant, hoping you’ll either not care or will be so desperate to get signed that you’ll give away the farm. Don’t do it. If they insist on grabbing some of these rights, at least demand a higher royalty rate.
Going into contract negotiations can be scary, especially when you’re a newbie who is pining to be signed. Publishers know this, so they’ll use what they perceive to be a superior bargaining position against you. You have to be willing to walk away. Twenty to thirty years ago, the market was more closed, so you had to deal with their leverage, but there were also more of them. While it could be difficult, you could seek out a different publishing house and try for a better deal. That’s no longer the case in either instance. There are fewer houses, but there is more access to the market. If you won’t walk away when they want to cross one of your red lines, then just go ahead and put shackles on your wrists. Sorry if that’s harsh, but that’s what you’re doing if you’ll agree to anything just for the sake of saying you’ve been published by a major house.
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