Pub Rants

Category: boilerplate items

Hey, The Publisher Might Need It Again. Someday.

by Kristin Nelson

Like your grandmother who couldn’t get rid of that semi-broken toaster because she might need it again someday, publishers have a surprising number of obsolete and defunct clauses hanging out in their publishing contracts.  Most just elicit a chuckle, but at least one can greatly impact an author’s earnings.

The publishing landscape has shifted so radically in the last decade, especially with the rise of ebooks and downloadable audio. Publishing contracts should shift to match. But like your Depression-era grandmother, publishers are loath to get rid of old clauses they’ve had for decades—even though the publisher will not invoke that clause in any foreseeable future I can imagine. Most of these clauses hang out in the subrights section of a publishing agreement. 

My favorite? The publisher’s right to sublicense electronic book rights. Back in 2002, when I first started in the biz, there was a scrappy little electronic publisher called Rosetta Books. Although hard to believe, in those early days right before the electronic shift, some publishers did indeed sublicense electronic book rights to this third-party publisher. In today’s landscape, there isn’t a publisher on the planet who would sublicense electronic rights when such a major chunk of their own profit comes from sales of this format. Why would they share? And yet, if you look at the sublicense section of our pub agreement, the publisher still has the right to sublicense this format to a third party (though we as an agency add “by author approval”). But hey, the publisher might need it again someday, right? So there it stays. 

Also going the way of the dinosaur (sadly, in my opinion) is First Serial. In short, first serial is the publisher’s right to license an excerpt from a novel to a major newspaper, magazine, or other outlet. Think back to when Cosmopolitan or GQ featured up-and-coming authors by printing a chapter or two of their forthcoming novels. But now so many magazines have disappeared (or gone solely online). With that, publishers shifted from licensing first serial to simply allowing an approved excerpt to be posted on top sites as a publicity push. That means no licensing fee. Yet lo and behold, there in the subrights section of a pub agreement is the first-serial clause with a 90/10 split in the author’s favor. (As an aside, you’ll also see a publisher’s right to sublicense mass-market rights—something I’ve never seen a publisher do in twenty years of agenting. But hey, might happen someday, right?)

But the one legacy clause that can bite the author in the you-know-what is the short-print-run clause. So be on the look out for it. What does short print run mean? Originally, after a publisher launched the initial print run into the world (which could be around 5,000 or 10,000 copies or more), it was expensive for a publisher to order a “short” print run, like 500 copies to ensure the title remained in-stock for buyers. Now with print-technology shifts (i.e., print-on-demand), the cost remains fairly static—even for a small print run. The clause originally allowed the publisher to reduce the royalty to the author for said short print run. But today, why should the author have to accept a lesser royalty rate when the publisher did not foot an additional expense? Right. They shouldn’t. 

Most publishers have removed that clause (finally acknowledging it no longer applies), but occasionally I spot that kind of language in a contract and it needs to be handled.

Also, if you missed this news, the Authors Guild made its model book contract public for anyone to read and access. So happy contract reading. 

Photo by 幻影 3D from Pexels

Publishing House Mergers: A Non-Love Story

by Kristin Nelson

As a demographic, veteran literary agents are partial to opening sentences that begin with “back in the day.” Nothing signals “old” more effectively than that phrase. It implies that the good ol’ days were somehow better. The reality is that we veterans probably just have selective memory and there is no such thing as good ol’ days. However, in the case of the great publishing-house contraction that is unfolding, I might be in danger of embracing the notion that “back in the day” truly was better. 

News just hit that Newscorp is buying Houghton Mifflin Harcourt. For those not super familiar with the various corporate umbrellas of publishing, Newscorp owns HarperCollins/Harlequin so buying HMH will significantly expand the HarperCollins footprint. In November 2020, news dropped that Penguin Random House (already the biggest publisher) is buying Simon & Schuster—which makes the biggest publisher even bigger. 

Well, back in the day (tongue firmly in cheek) when I first started agenting, I distinctly remember having conversations with then-twenty-year veteran agents who had fond memories of the early 1990s, when more than 300 separate and individual publishing outlets were available for client submission. That number kind of blew my mind. Many of the imprints we now associate with, say, Random House used to be private companies that have since been acquired and folded into the parent company. Macmillan is another excellent example. After all, Farrar, Straus and Giroux, St. Martin’s Press, Henry Holt & Co, and even Tor used to be individual companies before they were bought up to become part of what we now know of as Macmillan. 

By 2022, we will be down to The Big 4 (Penguin Random House, Hachette, Macmillan, and Harpercollins) plus a smattering of some mid-size but growing independents. And that’s it. 

This contraction significantly impacts writers an authors, and here’s why:

  • Merging companies always declare that the houses will be run separately. This was certainly the case when Random House bought Penguin more than five years ago. Now these “separate publishers” exist under the same roof, use the same publishing contract, and operate under merged accounting and royalty systems. It is, in essence, almost like one house even though agents can still submit separately.
  • When publishers merge, there are often new mandates regarding how those houses will participate in auctions and submit bids. Some houses stipulate that imprints can no longer bid against each other. So if several imprints are interested in acquiring a project, they communicate and form a “house bid” (which is where all imprints propose one bid to submit in the auction, and if it is the winning bid, then the author can choose which editor/imprint to work with). This removes competition from the auction and lowers advances, which translates to less money for the author.
  • The merging of publishers results in the must-acquire-blockbusters-only mentality. Tighter budgets means fewer books will be acquired, which makes editors less likely to take chances on unique, creative voices—authors with talent who might not break out until their fourth or fifth novel. In other words, there is less focus on building an author and more focus on acquiring the obvious “big” book—which limits the diversity of unique stories in the world.
  • Contraction squeezes out the mid-list author—the author who’s not a blockbuster but whose sales might be humming along nicely. How? Because it makes the publisher less likely to pick up their option material. This precludes the possibility that a mid-list author’s third or fourth book might have been the one to break out. Not to mention, if the agent must shop the author anew, the current house (and all those imprints) are off the submit list. That equals fewer outlets where an agent can place that author and relaunch that author’s career.
  • Contraction eliminates editorial positions. Smaller staff equals fewer editors equals less diversity and narrower taste in what gets acquired. Also, smaller staff equals fewer editors equals those editors getting way more submissions from agents. Editors are already strapped for reading time and inundated with submitted manuscripts. The sheer volume makes it hard for any debut project to stand out in the crush—reducing a new writer’s chances of getting a foot in the door.
  • Contraction equals less-author-friendly publishing contracts. Fewer houses at which to place a client means publishers have the upper hand when it comes to dictating the terms, and agents have less negotiation leverage. 

This list could go on and on, so these are just a few reasons why I’m not excited by the currently unfolding mergers. Publishing is a tough business. Publishers feel pressured to grow so as to create greater profits and stronger bottom lines and to compete against other behemoths such as Amazon. I get it, but I don’t love it. 

Back in the day, there were dozens of terrific outlets at which to place a new client, to reinvent and reignite a mid-list author, or even to move a big client if needed. I am waxing nostalgic for those good ol’ days. 

Creative Commons Photo Credit: Images Money

How #MeToo Movement Impacts All Authors

by Kristin Nelson

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

by Kristin Nelson

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"

by Kristin Nelson

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)

by Kristin Nelson

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

by Kristin Nelson

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

by Kristin Nelson

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

by Kristin Nelson

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

by Kristin Nelson

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.