Pub Rants

Category: Publishing Deals & Contracts

Aggressive Competitive Works Clauses

STATUS: Fun picture of the week. My cousin was in Washington D.C. with her family and they visited the International Spy Museum and guess what they found in the gift store there? It just tickled us pink.

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

As y’all know, I’ve been working on a lot of contracts lately. One contract was with a new publisher (Macmillan) that I had never sold a book to before so there’s just a lot of extra negotiation necessary to hammer out the boilerplate.

When I started reading the contract for the first time, I was pleasantly surprised at how normal it was. There were lots of elements already included that normally we would have to request and fight for. But it wasn’t so…until page 16 when I reached the Competitive Works clause.

I think my jaw dropped open and stayed that way for a good 15 minutes. I even rang up my contracts manager because I couldn’t believe how aggressive it was. Until this moment, I had never seen a publisher contract where the Competitive Works clause was more than one short paragraph.

CW, by the way, is where the publisher tries to limit what other books an author is allowed to write while working with this publisher. Needless to say, as an agent, I’m pretty aggressive in removing a lot of elements to this clause or adjusting them appropriately because if you don’t, it can really interfere in how an author can write for a living.

This clause had four sub-paragraphs in it, each one worded slightly differently but amounting to the same thing.

My fav is this one, “the Author will complete the Work and submit it to the Publisher prior to beginning work on any other book for INSERT GENRE (excluding only other books that may already be under separate contract to the Publisher).”

My goodness. And then there were three more paragraphs…

Uh, that will need to be changed.

Doing Foreign Rights Deals

STATUS: Contracts and more contracts. I have four total that I’m working on. A fifth one just came in and I just started negotiating a new deal for a current client. Busy.

What’s playing on the iPod right now? DON’T GET AROUND MUCH ANYMORE by Natalie Cole

Last year the agency did 29 foreign rights deals on behalf of our clients and I have to say that the sales remain unabated into 2008. We are doing several a week for various clients. All great news.

But I had an interesting thing happen last week. I turned down a foreign offer for one of my clients (and obviously with the client’s permission) because I didn’t think the offer was on par with where it should be in comparison to other foreign offers and the client’s current sales etc.

This is a first for me. Because so many of my clients are (or were) debut authors (as my agency is only five years old), most often we are thrilled to get foreign interest at all. And yes, we always negotiate up the foreign advances etc. but you only have so much leverage when the client hasn’t got a sales track record.

But obviously the agency has reached a new level—especially for established clients with success. Yet another threshold we are crossing as we finish up year five and head into year six of our existence.

Prelude to An Auction

STATUS: It is really freakin’ cold here in New York City. They think we have winter in Denver. Oh please. It’s six degrees. Wet. And the wind is blowing like 30 knots or something crazy like that. It’s never that cold in Denver or if it is, the sun is shining and everyone is happy. Although we went on a walk today, Chutney was unwilling to pose.

What’s playing on the iPod right now? DANCING WITH MYSELF by Billy Idol
(uh, I actually don’t own this song but the radio is playing at the moment…)

I know that blog readers love to hear the inside skinny on agent stuff. So how does an agent know that an auction might potentially unfold?

Easy. When a manuscript is sent out, some editors will take a look right away (especially those editors who know me and have had the experience of submissions from me moving fast). They tend to get on it quickly.

And if they like what they see, they email or call almost immediately to say that they love what they are reading and that they are either going to finish soon (like over the weekend) and get second reads or they are already doing so. They want me to keep them abreast of any new information regarding the project (as in other interest, an impending offer, etc.)

When this kind of communication happens from more than one house (and it has to be different houses because in-house imprints can’t bid against each other), then the agent knows it’s shaking. The project has it going on and an auction might unfold.

Now, that doesn’t always happen. Sometimes multiple editors from different houses show interest and those editors aren’t able to get the support to buy (support being other readers who love it as much as they do or an editorial director or publisher on board). And yes, I have had that happen.

But when there is a lot of interest early on, it usually means multiple offers and the agent has time to get her deal game plan in place.

Interminable Length Of Time

STATUS: Don’t mind me. I just took an extended MLK holiday! Seriously, I just forgot to blog yesterday. I had 3 meetings and the third one didn’t end until 8 p.m. I kept thinking I was forgetting something but it didn’t occur to me until this morning that it was the blog entry.

What’s playing on the iPod right now? ORANGE COLORED SKY by Natalie Cole

Very few of my blog readers probably suffer from the misassumption that publishing moves quickly once an offer is made.

But just in case you do think that, let me make it clear for the record that publishing moves at a snail’s pace that probably wouldn’t be tolerated in other industries. And lately, it seems, publishing houses are moving at an interminably slow pace when it comes to mailing out contracts for deals recently made. Ninety-five year old grandmothers on the highway in their Buicks move faster than publishers. And personally, I don’t think claiming “the holidays” is enough of an excuse.

Let me give you just a sampling of what agents like me are dealing with.

In November (2007), I concluded the deal points for two offers. Just this week I received a contract for one of those deals, and I’m still waiting on the contract for the other. And trust me, it’s not like this delay went unnoticed. I’ve been prodding since early December.

So what I’m saying is that my job often entails loud and frequent whining.

Here’s another example. For a deal “concluded” in late October, I received the contracts the first week in December (which isn’t too bad actually). It took my contracts manager and me about a week to review and then write up the letter to the contracts director at the publishing house.

Now we have been waiting a month and three weeks for a response. Yes the holidays were in the middle of that and yes, I can be flexible but when we are three weeks into the new year without a response, the you-know-what has hitteth the fan.

So what can an agent do? Well, we can give an ultimatum (as in if I don’t have the contract by XYZ date, the deal is off) but that is rarely what an author wants. After all, they have accepted this offer for a reason. Sometimes, it’s necessary though and when push has come to shove and a deadline has been given, response time quickens remarkably.

Funny how that happens…

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.

MISTS Auction: The Lowdown

STATUS: I’m feeling good because I’m actually tackling the big items on my TO DO list.

What’s playing on the iPod right now? THE CHRISTMAS SONG by The Carpenters

I can finally talk about my big day from last week or should I say my big days since the auction lasted for two days.

Here’s the announcement from Deal Lunch:
FICTION: MIDDLE GRADE
Helen Stringer’s debut HOUSE OF MISTS, about a girl who lives with the ghosts of her parents in the north of England and when they disappear, along with all the ghosts in the world, it’s up to her, an always-in-trouble classmate named Steve, and the one remaining ghost (from 1912) to find out why, to Jean Feiwel at Feiwel & Friends, in a significant deal for two books, at auction, by Kristin Nelson of Nelson Literary Agency (NA).

This is the very first middle-grade project I’ve ever taken on so I was rather heartened that it caused quite a stir and lots of interest. As an agent I probably shouldn’t admit this but because it was my first middle-grade ever, I was kind of nervous when I submitted it. I obviously feel quite confident about my YA abilities but middle-grade is a whole other ball of wax so to speak. Now I can rest easy. At least in this case, I got what it takes!

So here’s how the auction went down.

1. Project was sent out on Wednesday. The first offer came a week and a day later.

2. All editors were notified of the offer on the table.

3. Several editors expressed serious interest, which signals that an auction might be imminent.

4. Another house makes an offer (but not a pre-empt), so now there are two offers on the table. Auction date is scheduled and that information is sent to all editors interested in participating.

5. A house with an offer already on the table attempts to pre-empt with a new offer. The Interest at this point is too high, the pre-empt is declined.

6. Agent sets auction rules and asks all interested parties to declare if they plan to attend or not. The rules are emailed to all auction participants.

7. Auction day comes and it’s a round robin one (which means participants can bid in subsequent rounds). Four participants are bidding. Auction continues until there is a winner but in this case, it came down two main bidders. As the auction continued on Friday, the publishers were asked if they wanted the option to put their best offer forward instead of doing subsequent round robin bidding that might last several more hours. Participants preferred that. Final offers were presented to the author and ultimately a final choice was made.

There can only be one publisher after all. Although I have to say, when all parties are excellent, it’s tough to call the “losing” publisher and potentially break that editor’s heart when he/she obviously has tons of enthusiasm for the project.

Including But Not Limited To

STATUS: I don’t know about you but I plan to be downloading Paul Potts’ first CD called ONE CHANCE from iTunes this week. If you want to buy the actual CD, here’s a link. I had to watch it again today. It’s like a little moment of sudden inspiration each time I watch it.

What’s playing on the iPod right now? TIME PASSAGES by Al Stewart

Whenever I do a deal, I always send a deal memo to the editor to verify the deal points. In this memo I always include a rights reserved clause with a little phrase that goes like this, “including but not limited to” and then a big list of what’s reserved so everything is clear.

And do you know what I’ve been noticing? There has been an interesting trend lately in publisher contracts. If a right wasn’t specifically discussed during negotiation, it’s showing up in the publishing contract as a right granted to the publisher—even though it was never mention by either me or the editor.

I think my favorite was this one. I had reserved all dramatic rights (motion picture, TV, radio, you get the picture) and the contract came with this: non-dramatic: motion picture, TV, radio and allied rights.

Uh, I’d really like to know what a non-dramatic motion picture is. I honestly didn’t think to reserve it because I’ve never heard of it.

Ended it up that the publisher wanted that to refer to educational documentaries. I’m like, no, that’s a dramatic right. It ended up being no big deal (and it was deleted from the contract) but now I have to add it to my list of rights reserved (which is kind of getting ridiculously long).

I think “including but not limited to” should cover it just fine but no, I’m being forced to spell it all out. Okay then. I can be super anal if that’s what it takes.

Read Your Contract

STATUS: I’m trying really hard to be good. My copy of HARRY POTTER AND THE DEATHLY HALLOWS came on Saturday. I know that once I start reading, I’ll ignore everything else and I don’t think my clients would appreciate that with all that’s going on this week. So, I must wait until Friday night but then, look out.

What’s playing on the iPod right now? CAN I CHANGE MY MIND? By Tyrone Davis

When it comes to contracts, I’m incredibly anal. I can easily spend hours on one contract making sure that all my boilerplate items are included and that nothing has changed in terms of a clause changing or something being included (or being deleted–Simon & Schuster comes to mind).

Even with this, I live in fear of simply being human and missing something, so that’s why both my contracts manager and I read all the contracts that come in.

Even so I would prefer that my clients also read their contracts (one more set of eyes can’t hurt). Whether they do or not, I couldn’t say since they have never pointed out an error.

I recently heard a rumor from a reliable (but will remain unnamed) source that some agencies got caught not reading the new S&S contracts carefully and missed the change in the out of print clause.

Clients received those contracts and might have even signed them. Now I also heard that the errors were corrected but yikes, that thought alone makes me want to admonish writers to read their contracts!

A Two-Tiered System?

STATUS: It’s going to be quiet all week. Lots of editors aren’t in the office. I’m working on two submissions that are going out in the next 2 weeks. I am so excited about both that I can’t keep from bouncing in my seat while I write up the submit lists and the cover letters. Can’t wait to share with editors.

What’s playing on the iPod right now? MISUNDERSTANDING by Genesis

Earlier this week I received an email from AAR (Association of Authors’ Representatives) that our contracts board is going to meet with S&S in the near future in order to discuss how recent developments in print on demand technology is affecting publisher out of print [OOP] clauses, etc.

I’m very glad that both sides are undergoing a dialogue.

For my impacted contracts, we are moving forward. I basically argued that these contracts were negotiated before the change and thus the previous boilerplate OOP language should be honored. And it was.

But I honestly can’t tell you what it will be like for future contracts and I’m worried about a two-tiered system. If a project is hot and the agent has leverage or there is an auction going down, I see there is flexibility with the OOP language. But if an author is mid-list and it’s option material time… it might be a whole difference experience. Too hard to say yet but it has me very concerned.