(Just a note, this post is from our archives. Some references and links may be from past years.)
STATUS: I feel like I need to flex my brain muscles to get back into shape for daily blogging.
What’s playing on the XM or iPod right now? DANCE HALL DAYS by Wang Chung
I recently talked to a writer who had signed a small publisher’s boilerplate contract.
Let me start by saying that the signed contract was with an established and reputable small publisher. Still I shudder.
Let me highlight here that I wouldn’t want a writer to sign the boilerplate contract with any publisher -be it a small one or a big six publisher. All boilerplates are terrible. That’s why agents negotiate the heck out of them.
Pitfalls of Boilerplate Contracts
1) Every publishing boilerplate I’ve seen grants the publisher all rights. Oh boy. Honestly folks, you never want to grant rights to a publisher for things they won’t exploit effectively such as dramatic rights (film/tv), merchandizing, theme park rights etc. The rights will just sit there. And you can’t earn money unless those rights are sold.
2) Boilerplates have no recourse if the publisher fails to publish. Then writers are stuck in limbo forever! They can’t contractually demand the rights back for failure to publish. Writer is stuck. Not good.
3) Boilerplates often have no out of print clauses. I recently derailed a deal because I could not get the small publisher to insert one. They would have had the rights into perpetuity with the author having no way to ever get the rights back unless the publisher felt like it. Uh, no.
4) I’ve seen boilerplates that have a never-ending option clauses. If the publisher doesn’t take the writer’s next book, they still get to see the one after that and the one after that….. Yep, that author will never successfully be placed at a new home if that is the case as the new publisher would want an option for next work at the very least. That can’t be granted if the above is the case.
5) Boilerplate contracts don’t allow the author to see copies of sublicense deals. If that is the case, how can an author know what was sold and on what terms to verify the royalty statements? Good point, right?
And I could go on and on.
Creative Commons Photo Credit: Best Picko
Yikes, good to know! Thanks for sharing.
Thanks for doing this post! I know little about publishing, and as a writer, I’d hate to get stuck that way.
I’ve noticed those things too, but it bears mentioning that I (as a writer and as a freelance editor for both fiction and non-fiction) have seen some magazine, small press, and short fiction contracts that actually aren’t guilty of all (or any!) of those issues.
Even so, I’ve seen some doozies. Some of which the company then tried to tell me the contract meant something other than what it explicitly said. Riiight.
And even in the good cases, it’s a business arrangement. There’s usually something negotiable in a contract.
Thanks so much for sharing this. I suppose this is where a good literary agent is especially helpful, right? I would hate to make this kind of mistake and regret the heck out of it.
Wow, thank you for this! Definitely opened my eyes; I’m so happy you are making all of us more informed and aware of the industry. It’s a huge blessing.
That is really scary. Thank you so much for posting this blog- I honestly knew little about boilerplate contracts, but I now I know that I just need to run away from these!
I signed a contract with a fairly new small press. For curiosity I compared it with the issues you raise and I don’t see any of these problems in it. Go me.
Thanks for posting this. I’m such a boob at legal jargon that I would never sign a contract without an agent looking at it first. That’s what we pay you guys for, right?
Thanks for sharing, Kristin.
All of this is why I’m holding out for an agent. I would never have known to even look for these pitfalls! Hooray for agents!
What’s a boilerplate contract?
This piece really upped my confidence in your representation and in your agency. I’m eventually going to submit here when I feel my work is polished enough, and reject or no reject, this piece sums up the type of smart representation I would be looking for!
I’m with Adam,
What is the difference between a usual contract and a Boiler Plate contract?
I’ve never heard of the term and I am new to the Book writing game.
They are all good points. But a lot of us just don’t have any choice but to sign them and hope for the best, especially those of us making money with small e-presses 🙁
To those asking above: a “boilerplate” contract is the publisher’s usual, standard, house-drafted contract. It’s the one they offer everybody, and it’s up to you or preferably your agent (if you have one) to negotiate for what you want to change in it before you sign.
And thanks, Kristin, for a helpful–if scary–post. (I sense a potential Halloween theme here. Agent shows up at office party wearing a sheet of paper that says “boilerplate contract.” All the other agents scream.) 😀
Just wanted to add this for people who didn’t know what boilerplate meant.
There is this thing called google. It’s a search engine. If you google “boilerplate” you’ll get multiple definitions. If you google “how many different way are there to prune a bush” you’ll get all the answers you need. There’s very little you can find through google or other search engines.
Authors who are serious about getting published need to know how to use the web and not be so needy al the time. I’m not trying to be snarky here. I’m just pointing out something that should be common sense.
I’m always glad for these posts. You’re doing us a great service by pointing out considerations we unpublished writers might never have imagined.
Great example of why agents are rock-stars and all writers need one.
You have the more informative blog posts and you don’t seem to mind explaining things. Thank you.
Yikes! Great info – thanks for breaking it down.
This is so useful and important. It makes me sad when authors sign deals like this. I really think respectable publishers should have a reasonable standard contract. I feel that the simplicity of a self-pub contract (not to mention the royalty rates) are going to drive talent away from traditional publishing.
I recently walked away from a contract that offered the following:
1. A term of “copyright” (ie the authors life plus X years).
2. A ceding of all rights (as Kristin says)
3. No right of termination for the author
4. First option on any book the author wrote.
ie. the author was contractually bound to the publisher for life with no rights of terminating the contract.
I offered to negotiate a set term, a right of mutual termination and first option on any “series” – the publisher declined to negotiate so I walked away with no regret.
A court of law would probably find the contract unconscionable but it should never get to that.
I once, when I was quite a bit younger and more naive, signed a contract with a major publisher for a short story in an anthology which forbade me from doing anything else with the story within a year of publication. Publication would be within 5 years … or longer. The anthology was put on hold (much more than 5 years ago now). As far as I can tell, that means the publisher still holds the rights to the story, and I can’t publish or sell it again.
After that experience, I swore never to sign a contract like that again. The terrible thing is that the editor had actually *said* that I could ask for amendments to the contract, but I’d been so excited to make the sale for a substantial amount of money, and so worried about losing that sale through awkwardness, that I didn’t ask for any changes.
I’m much more hard-nosed now. And thank God I only had to lose a short story to learn the lesson.
I’ve gotten a contract from a small press, and they will not negotiate on a decades-long first option. There were other contract concerns, but they refused to negotiate on that one. The offer stands, but the contract sits unsigned. I’m done crying over it now, so I really have almost no emotional attachment. I doubt this publisher wanted to become my backup plan, but I’m not sure I’d even use them then.
Those are very good points, and it saddens me that a post like that is necessary. Reading through the comments, though, I see why it is.
I would like to remind writers that – while a good agent can be a godsend – it is the author who signs the contract and takes responsibility.
I think every writer would benefit from reading blogs like Passive Voice plus at least one book about copyright. Reading “Negotiating a Book Contract” wouldn’t hurt either.
I usually just lurk – but I wanted to say thanks for blogging like you do. It gives a lot of hope and instruction to the more naive writers – like me. I always come away feeling informed and reinforced. Thanks so much.