Pub Rants

Category: Publishing Deals & Contracts

A Contract Whine

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

The Great Contract Delay?

Status: Freakish. It’s going to be 60 degrees tomorrow in Denver. Uh, winter, what is that?

What’s Playing on the XM or iPod right now? ALWAYS ON MY MIND by Willie Nelson

In the last 6 months, there has been a radical shift in the amount of time it will take to complete a publishing contract. At first, I chalked it up to the new contract boilerplates publishing houses are feeling the need to implement. Any time an agent has to pretty much negotiate from scratch, it’s going to take a lot more time to establish a new agency boilerplate that is fair and reasonable for the author.

But that’s not always the case. For example, for one recent deal, it took (literally) three months to get the first draft of the contract—and the publisher had not changed the boilerplate. Having recently done 4 or 5 contracts with this house, I rather assumed this latest one was going to be a quick process. It took 6 months before the author signed the final contract.

And it’s not like I’m snoozing at my desk. This is after repeated calls, emails, follow up, and constant nagging on my part to prod the process along.

Agent job description: Nag.

Trust me, I didn’t know that was part of the job qualifications when I got into this biz.

For another contract from a publishing house that has always been very prompt in the past, I was stunned to have to wait 4 weeks between responses. (By the way, I responded within 3 days from any communication from the publisher; it was not languishing on my desk.)

It’s enough to make you wonder if it’s me! So I started bringing it up in conversations with other agents I chat with. Lo and behold, they had the same complaint!

So I don’t know what’s up. Are the contracts departments besieged? Understaffed? Combination of of things? Is this the great contract delay conspiracy? If you’ve recently sold a novel, get ready to hurry up and wait in order to sign on the dotted line.

Fun Facts On NLA Clients—Take 5

STATUS: I think my telephone’s handset is permanently glued to my left ear. Way too much phone time over the last few days.

What’s playing on the XM or iPod right now? THE LOVECATS by The Cure

Wrapping up the fun facts tonight!

Mari Mancusi—It took me over two years to convince her publisher to buy the fourth book in the Blood Coven Vampire series. Then they did, repackaged the back list with new covers and now the series is doing great and we are up to having recently sold book eight!

Lisa Shearin—who has well over 100,000 copies in print for her Raine Benares series had a ton of passes while on submission for MAGIC LOST, TROUBLE FOUND because the editors didn’t like the “fun voice.” It wasn’t the “norm” in fantasy.

Shanna Swendson—Gets regular royalty checks for her Enchanted Inc. series even though the first book published more than 5 years ago. Talk about evergreen!

And I have a ton of other facts that will probably never see the light of day but this has been fun to recap.

More The Cure music on iLike

Most Favored Nations

STATUS: Just finished up two contracts today. Always a great feeling.

What’s playing on the XM or iPod right now? CHRISTMASTIME by Stevie Wonder

With all the changes in the publishing world, this might be a buzz word you’ve heard thrown around lately. Agents are often including Most Favored Nation clauses in publishing contracts where it relates to electronic books.

It’s actually an odd term for it but including it often protects our clients. A quick stop at Wikipedia will give you an in-depth definition of the term. It’s most often used in international economic relations. In short, it means that if the US has a most favored nation status with a state, that state will not be treated less advantageously than any other country the US has trade relations with. They would get the same tariffs, quotas, or breaks etc.

And yes, it’s more complicated than that but you just need the cliff notes version for how I want to talk about it. Great. Most Favored Nations. International economics. What does this have to do with publishing and electronic books?

I’m getting to that. There are various ways to structure the clauses but in general, when an agent includes a most favored nations clause, it means the author will not be subject to a less advantageous electronic royalty rate than any other author at that Publishing house.

TGIF! Have a great weekend.

Importance Of Tracking World Rights

Status: Ah, worked on royalty statements some today. Hence, this entry!

What’s Playing on the XM or iPod right now? SUNSHINE ON MY SHOULDERS by John Denver

Even though as an agent I rarely grant World rights in a deal, I occasionally do if the monies are right. If the agency sells UK and translation rights, it’s easy to track the deals/monies as all info will be moving through the agency.

However, if a Publisher holds World, then all the info and monies move through the Publishing House’s subrights department. Sometimes editors are good at staying on top of the info and sometimes they aren’t. That’s why when I do grant World rights, I make it a point to contact the subrights person in charge of selling the rights for my author’s title.

It’s absolutely essential to know what foreign rights have sold and the terms of the deal. Why? If the royalty statement comes in and the subrights sales aren’t on it, then it’s clear something is amiss with the statement.

Case in point for a royalty statement I was reviewing today. We had on-file the deal memos and dates of all foreign deals done so far. Now foreign monies can often take 6 to 12 months to show on a statement so we don’t expect them to show immediately. However, if more than 12 months have elapsed since the close of the deal, it’s time to start asking questions.

In our case, the subrights monies were there but tied to a dummy ISBN that was created when the books first sold and not to the actual ISBN. This glitch kept them from showing on the statement.

Easy as pie as one phone call fixed the problem, but the issue can only be fixed if an agent or author knows to ask the question—which is why one should always track World right sales when the publisher holds those rights.

When Errors Are Found In Royalty Statements

STATUS: Not really liking how dark it gets so early.

What’s playing on the XM or iPod right now? LIGHT MY CANDLE from the Soundtrack RENT

Yesterday I highlighted the top 3 culprits regarding errors in royalty statements. So what happens if errors are found?

It’s pretty simple. We call our main contact in the royalties department. Since rarely an accounting period passes without some error being found on any one of the hundred + statements we receive, we talk to the royalty managers pretty often. First name basis actually.

We usually call first to discuss the errors and then follow up with an email so there is a paper trail. In all our instances, the royalties contact has corrected the errors promptly and regenerated the statements so we have correct ones for our files.

We make notes in the client’s royalties file so we can track past issues and be on the look-out for future issues (as sometimes it’s the same error that keeps reoccurring). Do I think the errors deliberate? For the big publishers, no. For some of the indie smaller publishers, it depends on the company.

Now there are definitely other things Publishers have done that haven’t been above board (as there have been lawsuits etc) that could impact royalty statements but they weren’t issues on the royalty statements themselves per se.

Top 3 Culprits

STATUS: It can’t be 2:30 in the afternoon already.

What’s playing on the XM or iPod right now? NEVER, NEVER GONNA GIVE YOU UP by Barry White

One of the issues of writing a blog for so long (since 2006 for me) is that I often forget what topics I’ve covered and what I haven’t. And sure, I could scroll through some of my tags but I’m too lazy. *grin*

April/October is our biggest royalty period. It’s when we receive the most statements. So right now I have quite a pile on my desk so it’s first and foremost in my mind. And for one major publisher, their October statements always come the first week in November.

So after reviewing the umpteenth one today, whether I’ve already discussed this or not, I wanted to highlight the top 3 culprits regarding errors in royalty statements that I’m seeing:

1. Returns at a price point that didn’t exist with the original published edition.
If a book was published for let’s say $13.99, then returns have to be at $13.99. Any other number is a clear error.

2. The wrong percentage recorded for electronic books
This can happen in a variety of ways. Perhaps the royalty is supposed to be on retail price and it’s showing on net or it’s just the wrong percentage altogether.

3. A royalty escalator has kicked in but the statements don’t reflect it.
In deals, there are often royalty escalators at certain break points. For example, for an adult hardcover, a standard is 10% to 5000, 12.5% to 10,000 and 15% thereafter. The royalty statement might have an error putting all copies at 10% but let’s say 6000 copies have sold so 1000 of those copies should be at the 12.5% level.

If You Think A Publisher Will Be Filing…

STATUS: First day of fall. Makes me kind of sad. I want summer to stay awhile longer.

What’s playing on the XM or iPod right now? WONDER by Natalie Merchant

…for bankruptcy, what is the best thing an author can do?

My answer? Get your rights reverted before the filing so the books aren’t tied up indefinitely by the court as non-reverted titles will be deemed assets of the company.

By the way, this is true even if you have a bankruptcy clause in your contract specifying that rights automatically revert. Bankruptcy courts don’t perceive it that way and they trump contract clause.

I also suggest you get a full accounting, if you can, of what is owed to you. You want this for several reasons: 1) if you have to file a claim as a creditor in the bankruptcy, you’ll know for how much. 2) you might be able to take the amount loss as a tax deduction (but ask a tax expert first).

Sometimes It Pays to Pay…

STATUS: Life in the fast lane…not. Sheesh. Where has this day gone? I’ve got three more things I absolutely must do before leaving tonight.

What’s playing on the XM or iPod right now? AMERICAN PIE by Don McLean

For professional advice. Having been an agent for 8+ years, I’ve certainly dealt with interesting events in publishing. Bankruptcy is just one of them.

A couple of years ago, an independent sports publisher filed for bankruptcy to re-organize. One of the first books I sold in my agency’s infancy was impacted.

What I learned? Most publishing contracts have bankruptcy clauses and ALL of them are useless. If a company files for bankruptcy, even if your contract stipulates that rights revert automatically, the bankruptcy court sees it differently and the rights can be tied up—sometimes for years.

Luckily for my author, I was able to negotiate the rights back with the help of my IP attorney and another attorney specializing in bankruptcy.

Sometimes it pays to pay for a professional assistance when it comes to specialized events like the one I describe above. If you’re an author facing similar and going it alone (sans agent), don’t ask friends or google the web. Get the facts. And in a lot of cases, it’s information only an expert can provide so you might want to consider it.

Publishers Behaving Badly–Again

STATUS: Okay, if I don’t blog in the morning, it looks like it’s not happening so more early morning blogging to come.

What’s playing on the XM or iPod right now? HER FIRST MISTAKE by Lyle Lovett

Several agent friends have confirmed that Macmillan sent a letter over the weekend asking authors to sign amendments that gave them electronic rights to backlist titles.

Oh Shades of Random House hegemony!

By the way, these letters went out to authors—not to the agents or agencies who represent them.

Tsk, tsk. I wag my finger at you Macmillan.

If you are an author and you received this letter, do not sign or return it without consulting with your agent or attorney first. If you haven’t got either, then pick up the phone and call the Authors Guild. I know the lawyers over there and they’d be happy to take a look at this amendment that has been sent out (if they haven’t seen it already).

Whatever you do, make sure you have a complete understanding of your rights and what you’d be granting if you signed the amendment and what other options exist if you don’t.

This has been a public service message from Agent Kristin… *grin*