Pub Rants

Category: Publishing Deals & 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.

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.

Negotiation Day

STATUS: Today was basically a day of working on negotiations. Fun.

What’s playing on the iPod right now? PARADISE BY THE DASHBOARD LIGHT by Meatloaf

Whenever I have multiple negotiations going on, I take extensive notes on each offer. What has been covered, what’s resolved, what’s outstanding. It’s too easy to think an issue has been handled because you’re remembering the conversation you had with the editor who was on the phone 10 minutes ago and is not the editor for the deal you are currently discussing.

This is why I also like to confirm everything by email as well. Then there is a written record of everything discussed.

So some interesting stats on Negotiations

1. Agents rarely negotiate on the same day an offer is made (unless it’s a pre-empt).

2. Negotiations rarely conclude in one day. I would say the average length to negotiate a deal (as in the deal points—not the actual final contract) is 4 or 5 days—and that depends on if an auction is going to unfold or a pre-empt offered. Mostly is just takes that long to work out the language if there are special instances that need to be handled in the contract or just general questions that need to be answered before the real negotiation can even begin.

3. Negotiation can be involved but they are rarely contentious. Truly, it’s usually about two people discussing solutions on how both parties can get what they need. Usually that’s resolvable but not always. I’ve only ever had one editor yell at me during a negotiation and quite simply, I won’t deal with that person anymore.

4. The heart of the negotiation isn’t always about the advance. Trust me, it’s always about the money to some extent but there are certain contract elements that are more important to have (or not have) in the contract.

5. When to start a negotiation may actually be the most important factor to consider. Does one negotiate for a new project before the numbers are in for the current book or does one wait until those numbers are available?

And that’s a whole other discussion for another day.

Accidental Omission Is A Part Of Life

STATUS: Super busy and I hit the road to New York City tomorrow. Blog might post late.

What’s playing on the iPod right now? I NEED TO KNOW by Tom Petty and the Heartbreakers.

I’ve been working on three different contracts for the past couple of weeks. Finally we get the final versions in and sure enough, some requested changes didn’t quite make it in.

This is pretty normal and it’s almost always a simple oversight on the part of the contracts director at the publishing house. A quick phone call solves the problem but ultimately there are only two solutions.

Handwrite the changes into the contract and have the author initial next to the change or have the publishing house regenerate the contract.

If the changes are minor, we always handwrite them in.

This time they weren’t. There were three whole clauses missing. Three clauses that had to be handwritten into three separate contract copies.

Normally I would opt for the publishing house regenerating them and resending but I didn’t want to delay any further—especially when I’ll be out of the office for the next 10 days and I personally prefer to review final contracts before sending on to the author.

Just a great reminder that this job is mostly about attention to details.

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.

Agenting 101 Revisited: Author Warranties

STATUS: On Friday it was colder in Denver than most cities in Alaska. Today it’s 60 degrees and gorgeous. But never fear, it’s supposed to snow again on Friday—therefore not breaking our snow streak.

What’s playing on the iPod right now? IT’S MY LIFE by Talk Talk

All publishing contracts have a clause that basically asks the author if the work is original and whether the author has the right to enter in this agreement.

That’s reasonable.

The clause will read something like this:

“The Author warrants, represents and covenants: that the Author owns all rights and licenses herein conveyed and has the full and sole right and authority to convey all such rights and perform its obligations hereunder; that the work is original with the Author in all respects, except for any portion which has been previously published and is identified as such; that, with respect to works of nonfiction, all statements contained in the Work as published are true or based on reasonable research for accuracy: that the Work is not in the public domain and is or may be validly copyrighted or registered for copyright in the United States and…”

And the clause will go on to make sure the Author hasn’t defamed anyone or invaded privacy. That there is no litigation pending or a claim outstanding. That the work won’t cause harm etc.

You can see where Mr. Frey ran into some difficulties with lines 5 and 6. Ahem.

To me, these are all valid considerations and the Publisher has the right to ask an author to attest to the above and sign his or her name to it in agreement.

What I don’t like, as you well know, is when the Publishers sneaks a little phrase in that reads something like this, “that the Work will be the Author’s next book-length work (whether under the Author’s own name or otherwise)”

This usually comes in line 3 after “rights and perform its obligations hereunder.”

Basically the Publisher is asking that the author warrant that this Work will be his or her next published work.

You know my take. That’s none of the Publisher’s business. The real issue is that the Publisher doesn’t want the work they’re buying to have to compete with a myriad of other titles by this author upon publication.

That’s not a true warranty. That’s a no-compete clause and it irks me to have this little sentence buried in with all the other elements of the Warranty clause that are actually relevant and justifiable by the Publisher.

Not to mention, embedding this phrasing is a recent occurrence (at least for the contracts I’ve been seeing).

So my advice is, if you are going it alone, to read carefully. There are some changes we as agents ask for when negotiating and dealing with the warranty and indemnity clauses but as you can guess, these are the two clauses that publishers show most reluctance to negotiate since the point of them is to protect the publisher. Yet, if you don’t deal with this pesky little sentence, you may find your career a little constrained.

Agenting 101 Revisited: No-Compete

STATUS: It’s colder in Denver today than in most of the cities in Alaska. That’s just wrong.

What’s playing on the iPod right now? SWEET LOVE by Anita Baker

Get out your notebooks. I was a little too cryptic earlier this week. So let’s talk about the no-compete clause and the Author’s Warranties in publishing contracts.

A little background. Publishers like to include a little clause that is usually called something like “Conflicting Publication” or “Competitive Works” in their book contracts.

To sum up, this clause will usually say something like this:

“During the term of this Agreement, the Author shall not, without written permission of the Publisher, publish or permit to be published any material based upon or incorporating material from the Work or which would compete with its sale or impair the rights granted hereunder.”

Fair enough.

But then the publisher likes to continue. The real crux of this clause is in the next section that will state something along these lines:

“Subject to the terms above, the Author agrees that in no event will the Author publish or authorize publication of any other book-length work of which the Author is credited under his/her own name as an author, contributor or collaborator until six months after the publication of the book under this agreement.”

Therein lies the problem if the author wants to have a prolific career. This clause would severely limit the variety of books the author could publish at any given time (if they have to wait 6 months after the publication of the book in this agreement or their other agreements). Just imagining the scheduling conflict alone is enough to give me a headache and if the author writes nonfiction as well as fiction or young adult as well as adult novels… you can see why this clause would inhibit a writer’s career.

So, agents limit the clause. “Any other book-length work” is too open-ended. We dig in and start defining that book-length work. Now how we define this can vary depending on what the author writes, what they have going at the time, and what they plan to write in the future. If the author already writes in let’s say an adult genre but now we are doing a contract for YA books, we force the publisher to acknowledge their upcoming adult books in this clause as well so it’s clear that even though those books are out on the shelves at the same time, they aren’t “in competition” with the book in this contract.

Why do publishers bother? They want to protect their investment and not have a diluted market when releasing their book. That’s the argument I’ve heard anyway.

Of course what’s not taken into consideration is the synergy and buzz that can be created when an author has multi-books out on the shelves at the same time.

You can probably also see that the bigger the author is (i.e. Nora Roberts or Dan Brown) the less of an issue multi-books become because there is room for all with his or her avid fan base. The no-compete clause becomes a moot point of the publisher wants that author on the house list.

We’ll tackle warranties on Monday. This is a too brain-taxing way to end a Friday. Happy weekend folks.

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.