STATUS: The last 70 degree day. Okay, I’ll admit it. I popped out early to play a round of really bad golf. The weather was beautiful. The company sparkling. Kristin shanked every shot into trees. Ah yes, I’m THAT horrible beginner on the golf course that you never ever want to play behind of.
What’s playing on the XM or iPod right now? THRILLER by Michael Jackson (I mean, duh, what else could possibly be playing on the iPod tonight.)
What’s scarier than Halloween? Writers signing publishing contracts not fully understanding what they are signing.
I figured I’d devote this entry to scary clauses in contracts that actual writers have signed.
1. The option clause into perpetuity.
Such a monster! I’ve seen this in too many small publishing house contracts to count. Any decent option clause will allow the publisher a look at the next project (usually narrowed down to specific type and genre) and that’s it. Unsuspecting writers have signed contracts where they literally have to show a publisher every work they do–even if the publisher doesn’t want it. The clause obligates them to then show their next project, and then the next project and so on.
I think any writer can get out of this (and the court will rule in the author’s favor) but probably not without some substantial cost and a good lawyer.
2. Low royalties based on net.
Don’t get me wrong, having royalties based on net isn’t necessarily egregious. It is when the publisher tries to pass off royalties based on net to be equivalent to royalties based on retail price. In other words, they offer they same as “standard” such as 10% to 5000 copies, 12.5% on next 5000, and 15% thereafter but it’s based on net receipts.
Sounds good until you calculate the math. 10% of net equals about 5% of retail price. Not exactly the same thing so do your monster math.
3. Warranties and Indemnities clauses where the author is on the hook for all the costs.
The author should only be fully responsible if they are found guilty and in breach of this clause. I’ve seen clauses where authors are on the hook for the full cost of even an alleged breach and yet they have no say in the proceedings. Oi! Even Frankenstein got a better deal.
4. Joint accounting.
Publishers love joint accounting. That means they link the monies of multiple books together. In short, an author doesn’t see a penny of royalties until ALL books in the contract earn out and only then are royalties paid. You might be waiting years and years to kill that zombie.
5. Unmodified competing works clauses.
If you aren’t really really careful, you might be legally obligated to not pursue any other writing work until the books in your contract are out of print and the rights revert back to you.
This is definitely worst case scenario but depending on the language in the contract, you might have backed yourself into this corner. Talk about hamstringing your career as a writer.
For me, in this digital age, the above are way scarier than anything that might go bump in the night.
Thank God my small press contract didn’t have any of this in here. But having some of these explained is really helpful!
Skip things that go bump in the night. This contract and the legalese that accompanies it sounds downright frightening.
EEEK! Scary indeed. And I can see someone like me…who will be so excited to even have a contract…not pay attention to these details. Thanks for heads up.
Thank you. Thank you. Thank you.
This scary post was worth the price of admission. Oh yeah, you don’t charge.
Did I say thanks.
Good post.
But one thing to consider is that small presses, especially e-presses nowadays who are facing heavy competition, are so intent on maintaining their “image” they usually bend and sway to the author’s needs…in most cases, not all. In other words, the slightest scandal on the interwebs can, and sometimes does, cost them huge sales, which isn’t something they are willing to risk.
Authors without agents have to know how to play the game and work everything to their own advantage. And when it comes to “image” these days, everyone is concerned about what’s put out there in public. Once the image is tarnished even slightly, small presses lose readership and potential authors who might have submitted to them.
When I read something like this, I wonder why anyone would EVER attempt getting published without an agent.
Karen Peterson–
I totally agree! I don’t know any legal jargon, how in the world would I be able to tell if I’m getting screwed over??? I think getting an awesome agent is the best thing to do.
The agent *will* know to tell the publishers to revise if they see these things right?
And they’re at it again. Folks, please see Victoria’s (Writer Beware’s) post on The Write Agenda, and decide what should scare you here.
The Write Agenda and Writer Beware
Kristin, thanks so much for the contracts post. Unfortunately, I’ve heard of real horror stories where noncompete clauses were concerned, and the same with options. Your words of warning are appreciated.
Yikes. I’ve been reading agent blogs for a few years and thought I had heard of most of the big clauses to avoid, but these ones are new to me and quite scary. Agreeing with Karen Peterson and questioning why anyone would accept a contract without an agent or at least someone very versed in legal matters looking over it.
@Anonymous 3:22
So quit listening, or go create your own blog to combat them (or at least own up to any you already have) rather than leaving anonymous comments that don’t give anyone any perspective of your authority on the manner.
Kristen, since you’ve written this(thank you, by the way)I’m curious as to your thoughts on the situation with L.J.Smith, the author of the vampire diaries. a friend recently told me that L.J. Smith is no longer allowed to write another Vampire diaries book and any new ones will be ghostwritten by others without her input. How could something like that happen? How did she lose the rights to her characters and books?
Anonymous @ 9:54pm
I can answer this. Smith never owned the rights to the books in the first place. She was hired on by the publisher in order to write those specific stories. Her contracts stated that everything–characters, the whole package–belong to the publisher.
From what I’ve heard (take this with a grain of salt), the publisher didn’t like the direction she was taking with the books, therefore decided to hire someone else to continue the series.
Thanks for the helpful post, Kristin. Apart from having a good agent and/or hiring a suitable lawyer to look over contracts, is there any other way authors can protect themselves from these nightmare clauses?
P.S Miss Snark rulz, ok?
Great advice, Kristin…
Most ebook authors can’t get agents (or don’t need them yet) and they sign contracts that they don’t understand. I recently had a offer on a novel, and after trying to make heads or tails out of it, I ended up asking questions on writer loops. I got some great advice and ended up red-lining through the contract. They didn’t like my terms and we parted ways. I’m really happy I didn’t sign, and now that same book sold to another ePub. This ePub had a simple contract, two pages long, and words even I could understand and live with.
Don’t sign if you are not sure. Do your homework. Even better, talk to the pubs authors and see if they are happy.
Thank you thank you thank you for the education. 🙂
Incredibly helpful – thank you for providing author holy water! (Not that all publishers are $sucking vampires but…)
Info like this re-affirms why agents are so important.
And I love that you have a “career suicide” tag.
Thanks for the warnings!
How about the clause that says the book doesn’t go out of print if they still have an ebook “available”?
It should say “in print” for “two years” and if the unit count falls below X (100 copies, 300 copies, whatever) per royalty period, or if sales fall below $N per royalty period, it’s OOP and rights revert automatically to the author.
This is a fantastic post. I’m kind of a nerd for contract stuff like this so I’m always excited when I read your legal posts. You have a great way of explaining them to make sense.
Thanks, Kristin.
Great post.
A good IP lawyer should be a must every time a writer gets a contract (even if the writer has an agent) and a better choice that a agent, who might know the standard clauses, but if there is anything out of the ordinary they won’t catch it. They are agents, not lawyers.
Make sure your out of print clause is super specific too.
Bad ex: The said Work shall be considered to be “in print” if it is offered for sale by the Publisher in any edition.
Really wish I would have had a pass through clause as well (any proceeds for foreign rights are sent immediately instead of waiting for the next cycle).
I have to wait months to recieve my foreign rights checks.
Oh my gosh, I’m going to be screwed if I ever get a contract. I don’t understand any of this, and I’m sure this was simplified.
Scary and informative post! And also a sign of the times.
A side note and a question: I, too, live in Denver, and I am in the very early stages of transitioning from my job of teaching middle school to (hopefully!) a career in publishing. I will be applying to DU’s Publishing Institute this year. Any advice for a novice?
@ Anon. 11:25
A good agent will know the standard AND non-standard clauses as well or better than an intellectual property lawyer–it’s part of their job to be aware of these things. Also, some agencies have their own contract specialists on staff.
I would not worry about using an IP lawyer unless I decided to represent myself directly to a publisher; and even then, I would want to know that that lawyer was specifically familiar with publishing (not music or entertainment, which can be entirely different critters).
Wow, this is very… ahhhhh. I even read parts out loud to my husband. Thanks for helping us to understand.watch out for these things. I already thought I wouldn’t want to pursue publishing without an agent in my corner and this definitely supports that.
This has given me chills up and down my spine.
“For me, in this digital age, the above are way scarier than anything that might go bump in the night.”
Right. Thank God it’s possible nowadays to make a small amount of money publishing articles in a liberal environment of the Internet and do not feel stranded by scarier than hell clauses.
Kristin
Firstly, thank you for your advice here and throughout your site. I’m writing to ask permission to reproduce this blog article (and one other from your 101 series) at http://www.writersdock.com. I come to you via the comments area as I can’t locate an email contact for you. If you’re open to my request, I can be found at the site above (reply to any post there for private comment moderation, as your site is also set up). I will, of course, link back to your site if you agree to the request.
Thanks.
Joel
(Editor)