Pub Rants

Category: Publishing Deals & Contracts

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.

Kristin’s Cheat Sheet

STATUS: I was a working machine today. I got a lot accomplished. Makes me wonder why I haven’t even made a dent in my To Do list for tomorrow.

What’s playing on the iPod right now? WHY CAN’T I BE YOU? By The Cure

Three days into the new year and it’s already clear that I’ll be negotiating some deals in the very near future. Now remember I did that whole Agenting 101 series starting back in late June 2006. So search the archives if you want to see the whole run-down on how to negotiate a deal.

Today I thought it might be fun to share my Deal Points check list. It’s my quick and dirty reminder of all the points that need to be discussed in the initial negotiation. All agents have one. It helps to keep an electronic paper record of all the points—especially if there is a lot of back and forth during the negotiation with points changing.

Once the deal concludes, I email the editor a copy of my deal points memo for written confirmation that our negotiations match.

I tell you. It’s saved me once or twice when an editor has left a house after contracting for a book but the contracts hadn’t been generated yet or were generated but something’s missing. In general, I just like being anal and detailed-oriented.

Ask what editorial changes will be needed.
Ask for potential pub date.

1. Rights Granted (If World involved, ask for confirm of splits, reversion in 18-24 months. If audio is involved, ask for a reversion in one year if publisher hasn’t sold it)

2. Advance
3. Payout
4. Royalty structure

5. Bonus clauses (I have a whole separate notes section for kinds of bonuses I want to ask for etc.)

6. option clause (Limit option clause to one name/pseudonym/next in series/or type of work)

7. No US-only Spanish language (however, if must give, ask for 1 year reversion clause, same royalty percentage, and for it to be excluded from the option)

9. Publication time frame (as in 12 months, 18, or 24)

10. No Joint Accounting if multi-book deal

11. Discuss non-compete clause/second option for smaller work (see publication house specific notes below) –These I’m not sharing because it would take too long to include.

12. Add reserved rights clause: “All rights not specifically granted hereunder are reserved by the Author, including, but not limited to US-Only Spanish Language, translation, motion picture, television, radio, calendar, commercial merchandising, audio, video, electronic, multimedia and/or interactive electronic rights.” (This sentence changes depending on rights granted.)

We Have A Contract Boilerplate?

STATUS: It was a good day—even though I didn’t quite get as much done as I had hoped. It’s always good when a deal for a new project closes. One contract negotiation is literally moving at the speed of snail.

What’s playing on the iPod right now? RUNNING ON EMPTY by Jackson Browne

I did a really great online chat last night for a group of already published authors. That’s always fun because published authors just have a whole different set of questions that they ask. But I also learned something last night. I learned that I often make assumptions about what authors already know about the business and that became apparent during our chat.

One published author was a little surprised that my agency has its own boilerplate contract with all the various publishing houses. She thought that only the “big” agencies had that benefit.

Shocked me silly. Of course the Nelson Literary Agency has its own agency-tailored boilerplate with hard won clauses fought for by my amazing contracts manager. All agencies have their own agency-specific boilerplates with the houses (and chances are they look pretty similar to each other but are still agency-specific).

Now here I might be making another assumption just by tossing around the word “boilerplate.”

What exactly does it mean? Well, when a new deal is done for the first time with let’s say Random House, RH sends out their standard boilerplate contract with all the clauses more or less in its favor. (And all houses do this by the way.) Then the agent negotiates the deal and fine tunes all those contract clauses to make it more in the author’s favor. Obviously to a point that’s acceptable to both parties so the deal can close. Now, when I make a new deal with RH, the contracts department doesn’t go back to scratch with the original Random House standard boilerplate. Instead, the already negotiated Nelson Agency RH contract boilerplate is used. That way there is no wasting time negotiating already agreed upon clauses and both parties can concentrate on deal-specific clauses for this new contract.

Does this make sense?

And it’s not just the big corporate agencies that have this set up—it’s all of us. Last night, this published author didn’t know that. Thank goodness I can clear up that misunderstanding otherwise that would certainly be a point against signing with an agent at a smaller agency.

And then there are author-specific boilerplates for the agency at the different houses. Do you think Nora Roberts has the same clauses in her contracts as a debut author with the same house—even if both authors are represented by the same agent/agency?

Of course not.

There are special “Nora” clauses (or special John Grisham clauses or insert special NYT best-selling author name here). The more clout you have as an author, the better the clauses your agent can incorporate into the contract—thus creating a special, author-specific boilerplate.

Plain and simple.