Pub Rants

A Very Nice Literary Agent Indulges in Polite Rants About Queries, Writers, and the Publishing Industry

Category: boilerplate items

How #MeToo Movement Impacts All Authors

For NLA’s March newsletter I wrote this article but hadn’t had a chance to post on the blog. Then PW recently ran this article on 4/27/2018 about how Publishers are increasingly inserting language into their contracts that allows them to terminate based on an author’s behavior. 

In further analysis and examination, I truly wonder if this is just a “change in market conditions” masquerading as a morality clause. 2018 is going to be an interesting year for contract negotiation!

AGENT KRISTIN’S ORIGINAL NEWSLETTER ARTICLE.

In October 2017, the #MeToo hashtag went viral on Twitter. Thousands of women shared their stories of sexual harassment, misconduct, and injustice in the workplace. The momentum began with the allegations against film titan Harvey Weinstein and then morphed into movements across other industries.

It hit publishing in a big way in February 2018 with Anne Ursu’s  bombshell of an article on Medium about sexual harassment in the children’s book industry.

It engendered a lot of conversations here at NLA, as I imagine it did for a lot of authors out there. But I wonder how many authors realized that the #MeToo movement would directly impact them in one very specific and unexpected way: in their contracts.

It was no surprise to me when we received a Penguin Random House contract recently, and lo and behold, there was new language in clause 7.c, which deals with publication. There is a new “morality” clause that cites that if the author’s reputation materially changes, such changes could be cause for termination of the publishing agreement.

Every non-author-friendly clause in publishing contracts is there because of some other author’s previous bad behavior. But in general, I don’t subscribe to the philosophy that NLA clients have to contractually pay for the mistakes of others.

Personally, I fully understand why PRH wants to add this language given recent current events. I certainly support the intention! As an agency, though, we are going to negotiate this clause to be more fair for an author who isn’t guilty until proven innocent.

My sense is that PRH will not be alone in amending boilerplate language. We’ve got several other agreements coming our way in the next two weeks. We’ll definitely be looking for the addition of these types of morality clauses.

Creative Commons Photo Credit: Luke Hoagland


A Contract Whine

Status: The high tomorrow is going to be 3 degrees. Oh Joy. And Chutney will still not thank me when I make her wear her fido fleece.

What’s Playing on the XM or iPod right now? HEROES by David Bowie

I think this is definitely more of a whine than a rant. I’m finally negotiating the new Macmillan boilerplate because just recently I sold a novel to that publishing house. And yes, I know that they implemented that new boilerplate many moons ago. Even though I reviewed it at that time (to see what I was in for) it’s not relevant until the first negotiation happens at that house. Although many of our boilerplate items were transferred into the new Macmillan contract, so much of the language has changed (or new clauses created), it might as well be brand new.

So to be generous, I reserved 4 hours to give it a solid read and to write up my requested changes letter. After 2.5 hours of diligent labor, I had only hit page 11 of the 28 page contract.

Oh, this is going to be fun one to negotiate.

More David Bowie music on iLike

Calling All You "Angels"

STATUS: Grumpy. I’ve been doing contract discussions for the last two months with various publishing houses regarding the changing digital landscape and monies associated with it. Most publishers demand that electronic rights be sold at same time as the print rights but they don’t want to answer bothersome questions such as the Google Partner Program or the Google Settlement.

What’s playing on the iPod right now? UP THE JUNCTION by Squeeze

Or maybe another word that begins with an “A” and has exactly 6 letters as well. I have to say that the digital landscape is changing publishing and publishing contracts almost daily.

Take the most recent Penguin contract I received about four weeks ago as an example. Now publishers always reserve the right to change their boilerplate at any time. I get that. All I ask is the courtesy of being notified when they have done so.

Remember the whole S&S furor last summer when they deleted the crucial last four lines from their out of print clause—thus eliminating the absolutely critical sales threshold that allows rights to revert back to the author—and didn’t tell anyone that they had done so?

Well, this isn’t quite as egregious as that little contract fiasco but I’m miffed all the same. This time, Penguin has inserted a new clause that has become 9. (b) ii. of the contract and didn’t mention it.

Nope. Found it because I scrutinize every contract closely.

This new clause is what I would call a kitchen sink clause for electronic uses of a work. So broad it’s meant to cover anything currently in existence and things we can only imagine for the future. It’s also going to set a strong precedence of reducing the split of monies to authors for electronic display of rights—and yes, I’m talking about Google here (or any other entity of like nature) and all the revenue generated by electronic microtransactions or click-thru ads in association with electronic content etc.

The prevailing philosophy has been that the electronic display of content was a subright use of an author’s electronic/display rights. Handled under sublicense, standard split for this is 50/50 between author and publisher. This new clause treats this income not as a subright but as a sales channel with a royalty structure of 30% of net amounts received given to the author.

There’s a big difference between 30% of net amounts received and 50%. And I don’t care that right now I’m talking about pennies, really, because who knows what this revenue will look like 10 years from now. Twenty years from now.

The digital landscape is literally changing publishing daily and as usual, it’s up to we agents to fight unfair clauses that don’t allow the author of the work to participate equally in the revenue generated by their content.


Boilerplate Item Du Jour (take 2)

STATUS: TGIF! I have so much to do this weekend…

What’s playing on the iPod right now? CRASH INTO ME by Dave Matthews Band

The best defense is a strong offense.

What do I do about Publisher insistence on assuming that graphic novel rights is a boilerplate item? I immediately make it clear that it is not at the BEGINNING of each negotiation so there can be no misunderstanding early on.

That also establishes to the publishers that regardless of what they think, where my agency is concerned, graphic novel rights is not a boilerplate item.

I do the same thing at the beginning of a negotiation for a possible multi-book deal. Right when the editor calls, I announce that my agency does not do joint accounting so are we talking about one book or two?

And that takes it off the table right from the start. It won’t be a point of dissension for later.

Now graphic novel rights aren’t quite the same thing as joint accounting so I still expect a discussion or argument but my position is at least clear from minute one.

Have a great weekend.


Boilerplate Item Du Jour

STATUS: Every day it’s another piece of good news for Ally Carter and her Gallagher Girl series. Today, it’s the news that she just debuted on the Publishers Weekly Top 15 children’s bestseller list (Jan. 14th issue) and if that weren’t enough, I’D TELL YOU I LOVE YOU has just landed on the USA Today Top 150 bestselling books (granted at #148) but that’s still big news because this list encompasses children’s and adult fiction titles. So quite the coup.

What’s playing on the iPod right now? HOME by Michael Bublé

Sometimes I just want to shake my head. About a year ago, Random House did a big push to say that US-only Spanish language rights would now be a “boilerplate” item on all their contracts. Do you remember this? Maybe some enterprising reader can look up that entry or series of entries and provide the link.

Agents pushed back and said, no, it’s not a boilerplate item; it’s a granted right—just like UK, translation, audio etc. It’s not automatically granted to the publisher. It must be specifically requested and included when discussing the event.

So the new boilerplate item du jour is graphic novel rights. A year ago, never saw this. It was never even mentioned or brought up in the deal points negotiation. Now, I’m starting to hear publishers say that this is a “boilerplate” item and corporate policy.

Here we go again.


I Can’t Go For That—No Can Do

STATUS: Here is some fabulous news I finally get to share. It’s official. Walden Media (Chronicles of Narnia) has bought I’D TELL YOU I LOVE YOU BUT THEN I’D HAVE TO KILL YOU from Disney. This is great news because Disney had decided to sit on the project (never what we want) and now things are finally moving forward. Now the big news will be when it goes into production. Then I’ll believe that the film might actually be made.

What’s playing on the iPod right now? WATCH YOUR STEP by Anita Baker

Just a little note to add to yesterday’s blog. Did the Authors Guild over-react regarding the news just in from S&S?

Folks, I have to say that I’m not sensing that. I didn’t just get that AG alert and then blog about it. I’m pretty interconnected with a lot of agents and we are all talking to each other.

My S&S contracts haven’t hit my desk yet but they have hit the desks of agents I know and those folks are currently battling for sales threshold language that used to be a standard negotiated item. (Side note on how it works: Publishers have boilerplate contracts that agents renegotiate and that renegotiated contract becomes the agency’s standard boilerplate with that publisher. That way we don’t have to reinvent the wheel every time we do a new deal with that publisher. Our previously negotiated language is automatically included.)

Today’s Publisher’s lunch reports that it is Authors Guild executive director Paul Aiken’s understanding that S&S is no longer going to add sales thresholds to the Out of Print Clause and it is non-negotiable.

And from what I’m hearing from those currently dealing with S&S contracts, that’s not off the mark.

It’s fine if S&S wants to change their boilerplate OOP language. I don’t have a problem with that. They can have whatever language they want to include. It’s the “non-negotiable” part that’s potentially the issue.

(Side note here: both Random House and the Penguin Group have already digitized their lists and neither has any problem including sales threshold language in their OOP clauses.)

Lunch also reports that “agents are prepared to pushback vigorously if presented with such a change.”

Blaster or light saber anyone?


That’s No Moon; That’s A Space Station

STATUS: A new client said YES and came on board today! Hooray! It was stiff competition to but I’m so excited about this novel. When I can talk about it more, I will. I also spent a lot of time on the phone today and the receiver is now glued to my left ear. Chutney is still struggling because she’s having trouble keeping food down. At least she is willing to eat plain white rice and that seems to be settling her stomach.

What’s playing on the iPod right now? SOMEBODY HAVE MERCY by Sam Cooke

How can I not have thoughts about an evil empire when word comes down (mainly through the Authors Guild) that Simon & Schuster would now like to change their boilerplate language for their Out of Print Clause and let me just tell you that it’s not in an author’s favor.

And to sum it up succinctly, they want to change the language so that the books they buy never go out of the print, the rights won’t revert back to the author, and they get to hold the rights into perpetuity.

How will this be done? By 1) not allowing language that restricts the OOP definition in terms of X number of copies sold during a certain period, and 2) by also not allowing language that states that electronic versions only will not constitute the work being in print.

In the age of digitalization and Print on Demand, that means “into perpetuity” folks.

Here’s the sum up from the Authors Guild:
The new contract would allow Simon & Schuster to consider a book in print, and under its exclusive control, so long as it’s available in any form, including through its own in-house database — even if no copies are available to be ordered by traditional bookstores.

Red Squadron get ready since I’m expecting several S&S contracts in the next week or so.

I have to wonder what S&S is thinking because I know what I’m going to be thinking if they adhere to this “new” boilerplate language and that is that I might need to sell my projects elsewhere.


Reading That’s Not So Much Fun

STATUS: Just finished the contract. That’s a way to end a Friday.

What’s playing on the iPod right now? EVERY LITTLE THING SHE DOES IS MAGIC by The Police

And since I have contracts on the mind…

I pretty much have to say that a contract is agent reading that’s not so much fun. It’s slow and detailed work–even if you already have a boilerplate with the publishing house. You would think that an already-negotiated-boilerplate contract, even for a new client, would be a snap. Plug in the new items and away we go.

Nope. You still have to ascertain whether all your boilerplate items are included. Take today’s contract for example. I caught over 10 items that are normally included in my boilerplate for this house but were just missing in this contract draft.

And before you leap to any conclusions, I don’t think it’s the pub house being deliberately nefarious or anything. Chances are good that they used an older version boilerplate to create this draft instead of my most recent contract at the house which would include all of the most up-to-date clauses.

So even with boilerplates, every contract has to be viewed and negotiated like it’s the first time.

And I bring this up because some unagented authors do their own contract negotiations and if it’s time for a new contract to be generated for your next book, don’t just assume it will be exactly the same as your first. Don’t skim it. Read it just as carefully as your first. You might be surprised at what is missing.


Pesky Warranty Clause

STATUS: Warm snuggly because Chutney is sitting on my lap. I’m blogging from home tonight.

What’s playing on the iPod right now? AIN’T THAT A KICK IN THE HEAD? by Dean Martin

Nothing gets my blood boiling faster then when publishers embed a no-compete type clause in the warranty section of the contract. This is actually becoming standard as of late.

It’s usually one sentence that’s easy to miss unless you’re reading carefully. Especially if you just finished reading and dealing with the no-compete clause in the paragraph before the warranty section.

The sneaky line will read something like this, “”that the book will be the author’s next book length work (whether under the author’s own name or otherwise)…”

First off, I believe it’s none of the publisher’s business whether the soon-to-be contracted work is the author’s next published work or not. Authors should be able to write and publish as many books as their ability and careers can sustain.

Now publishers will argue that they are making an investment in this writer and that they are simply trying to protect that investment, blah, blah, blah, blah. Fine. That’s what the no-compete clause is for and that’s why we, as agents and editors, like to argue the terms of that clause. This is such an important issue that it’s usually brought up when negotiating the deal points so both parties are clear as to what the author is willing to commit to or not.

So, then you think it’s finished and boom, you hit the warranty clause and there’s another pesky little reference to what is really a no-compete issue.

And as an agent, you have to start the battle all over again with limiting it, massaging the phrasing, making sure it doesn’t interfere with the author’s ability to expand his or her career, etc.

But what really annoys me is that this line really has nothing to do with an author’s warranty otherwise outlined in the rest of the paragraph. So why is it there? Good question.


Wait Until I Lose 20 Pounds

Note: Blogger was down last night so even though I had created this entry, I couldn’t post it. Sorry about that.

STATUS: Just finished working on a contract so I’m a little cross-eyed.

What’s playing on the iPod right now? PUT YOUR RECORDS ON by Corinne Bailey Rae

This contract took a bit of time because it was my first at this particular publisher and as an agent, I have to establish by kick-butt boilerplate.

I was struck by one of the clauses though. It read, “The Author will deliver to the Publisher on or before the Delivery Date for the book a selection of color photographs of the author cleared of all necessary permissions.” Now my authors have always provided an author photo with cleared permissions but it’s never been a contractual clause before so I was a little surprised to see it.

Now I’ve had more than one client delay the getting of the author photo because they wanted to lose a little weight. I understand the desire, believe me, but with these kinds of clauses popping into contracts, there can be no more procrastination (or there can be up until the book is d&a so I guess set a diet/exercise schedule if you’re adamant about the photo weight you want).

One client even begged me to give her six more months to get author shot ready and I had to ask, very kindly of course, what the likelihood of her achieving that goal in 6 months if she hadn’t done so before now. Well, she had to laugh at that.

And you know what, she did the author shot a week later and she looked terrific. Outright lovely.

So I realize that we are all a little self-critical when it comes to our own body images but I say, stuff that. You are who you are. Be proud of the way you look and no more procrastinating on your author shot.

Besides, your contract just might not let you.


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