Pub Rants

Category: publishing contracts

So last week when I was out in New York for the Writers Digest Conference, I gave a talk on why successful indie authors might want to partner with agents.

As I was putting together my talking points, I actually came to the conclusion that why they partner is the wrong question. The real question might be when should indie authors partner with an agent.

If  indie authors are becoming successful, an agent can accelerate their exposure in a big way. For example, I couple of weeks ago I took on self-publishing phenom Jasinda Wilder. On March 16, she released her 18th novel FALLING INTO YOU.

In less than one month, she sold 140,000 digital copies of this title.

Yes, you read that right.

That’s a crazy number of copies in a short period of time. She hit the NYT and USA Today list for several weeks in a row.

She decided to partner with me. My job is now to accelerate her exposure in any way possible. Within a week Publishers Weekly did a feature story on her and I imagine this won’t be the last coverage given her extraordinary success.

Would Jasinda get coverage without me? Sure. But there is no doubt I’m stomping on the gas. This can be incredibly beneficial in talking with publishers and for foreign deals.

On Thursday I’m flying to New York City to give a presentation at the Writers Digest Conference on Friday morning. My topic is why a successful indie self-publishing author might want to partner with an agent.

If you are an indie author that doesn’t see the value in having an agent, I’m not really going to change your mind so there really is no purpose in reading my next several blog posts where I share my thoughts. However, if you are curious, I’m happy to share several reasons on why they do. Now of course I can only speak to why several indie authors have decided to partner with me. It’s going to vary depending on the author and the agent.  But I represent several and they find our relationship invaluable.

Thought 1: People are complaining about the archaic nature of publishing and why doesn’t it change.

Okey dokey. Let’s quit complaining and start having conversations to instigate change because how do you think change happens?

In May of 2012, I had Hugh Howey fly out to New York to sit-down with publishers. I thought it was important for them to meet him in-person just so they could see for themselves what a reasonable, personable, and forward-thinking author he was. He was not, and has never been, anti-traditional publisher. In fact, he’s fairly pro-publisher. But a partnership has to make sense and there is a lot of stuff from traditional publishing that doesn’t make sense.

Before Hugh got on the plane, we both knew that it was very unlikely that the meetings would result in an offer that we’d be willing to take.  Yet, WE DID IT ANYWAY. Why? And this might be kind of silly but both of us felt kind of strongly that having in-person conversations with publishers about our sticking points (ebook royalty rate, sales thresholds in out of print clauses, and non-compete clauses) was necessary in order to facilitate possible change in the future. In other words, we weren’t going to see the benefit of it but maybe a future indie publishing author would because we had started the conversation.

And these conversations could only occur via a reasonable author partnering with a reasonable agent who were meeting with affable and reasonable publishers and editors and having frank, smart, and intelligent conversations with them about current contractual sticking points.

For Hugh, it resulted in a very unexpected print-rights only offer five months later (much to our surprise). That was way sooner than either of us had ever thought to hope.

I imagine that in the not-so-distant-future other indie authors (and who might be unagented) might be thanking Hugh for having partnered with an agent (way) back in 2012 so as to have these meetings. Just as they might be thanking Bella Andre and her agent for pulling off one of the first print-rights only deals (that was publicly announced -there might be others I’m unaware of).

 

 

If You Remember One Thing, It Should Be This: Never Sign An Unnegotiated Boilerplate Contract With Any Publisher

STATUS: I feel like I need to flex my brain muscles to get back into shape for daily blogging. 

What’s playing on the XM or iPod right now?  DANCE HALL DAYS by Wang Chung

I recently talked to a writer who had signed a small publisher’s boilerplate contract.

Shudders.

Let me start by saying that the signed contract was with an established and reputable small publisher. Still I shudder.

Let me highlight here that I wouldn’t want a writer to sign the boilerplate contract with any publisher -be it a small one or a big six publisher. All boilerplates are terrible. That’s why agents negotiate the heck out of them.

Pitfalls of Boilerplate Contracts

1) Every publishing boilerplate I’ve seen grants the publisher all rights. Oh boy. Honestly folks, you never want to grant rights to a publisher for things they won’t exploit effectively such as dramatic rights (film/tv), merchandizing, theme park rights etc. The rights will just sit there. And you can’t earn money unless those rights are sold.

2) Boilerplates have no recourse if the publisher fails to publish. Then writers are stuck in limbo forever! They can’t contractually demand the rights back for failure to publish. Writer is stuck. Not good.

3) Boilerplates often have no out of print clauses. I recently derailed a deal because I could not get the small publisher to insert one. They would have had the rights into perpetuity with the author having no way to ever get the rights back unless the publisher felt like it. Uh, no.

4) I’ve seen boilerplates that have a never-ending option clauses. If the publisher doesn’t take the writer’s next book, they still get to see the one after that and the one after that….. Yep, that author will never successfully be placed at a new home if that is the case as the new publisher would want an option for next work at the very least. That can’t be granted if the above is the case.

5) Boilerplate contracts don’t allow the author to see copies of sublicense deals. If that is the case, how can an author know what was sold and on what terms to verify the royalty statements? Good point, right?

And I could go on and on.

Importance Of Specifying Format Of Initial Edition

STATUS: Auction tomorrow. Always fun.

What’s playing on the XM or iPod right now? FADE INTO YOU by Mazzy Star

Here’s a contract tip that is both simple and yet can have a large consequence if not done.

As an agency, it’s been a long-time policy for our deals that publisher must specify initial publication format in the contract. For example, if a publisher wins a book at auction and part of them winning was a commitment to doing the book as a hardcover (for example), then when it comes time for publication, we don’t suddenly want the publisher to do the book as a trade paperback original instead.

One reason for this has to do with the author’s ability to earn out an advance. If a publisher paid a solid six-figures for something, the author is going to need the hardcover sales (with the higher price point) to earn out. Not to mention, with a hardcover initial edition, the author gets two publishing shots toward earn-out as the publisher, as a general rule, will publish the trade pb edition about a year later.

Makes sense.

Here’s another reason for specifying format of initial edition. As agents, we want to ensure that a publisher will do both a print AND electronic edition and not just publish a digital-only edition if that was not the original intent for accepting deal/contract. (Sidenote: Obviously, if an agent is selling a title to a digital-only publisher, then ebook only as initial format is understood.)

In this rapidly changing publishing landscape, and the rise of ebook sales, it is conceivable that a publisher buys a book with the intention of doing both formats and then decides later to not do the print edition and publish it only as an ebook.

I have not heard of this happening–yet. But why chance it?

Part of our job is to anticipate possible issues.

Scarier Than Halloween

STATUS: The last 70 degree day. Okay, I’ll admit it. I popped out early to play a round of really bad golf. The weather was beautiful. The company sparkling. Kristin shanked every shot into trees. Ah yes, I’m THAT horrible beginner on the golf course that you never ever want to play behind of.

What’s playing on the XM or iPod right now? THRILLER by Michael Jackson (I mean, duh, what else could possibly be playing on the iPod tonight.)

What’s scarier than Halloween? Writers signing publishing contracts not fully understanding what they are signing.

I figured I’d devote this entry to scary clauses in contracts that actual writers have signed.

1. The option clause into perpetuity.

Such a monster! I’ve seen this in too many small publishing house contracts to count. Any decent option clause will allow the publisher a look at the next project (usually narrowed down to specific type and genre) and that’s it. Unsuspecting writers have signed contracts where they literally have to show a publisher every work they do–even if the publisher doesn’t want it. The clause obligates them to then show their next project, and then the next project and so on.

I think any writer can get out of this (and the court will rule in the author’s favor) but probably not without some substantial cost and a good lawyer.

2. Low royalties based on net.

Don’t get me wrong, having royalties based on net isn’t necessarily egregious. It is when the publisher tries to pass off royalties based on net to be equivalent to royalties based on retail price. In other words, they offer they same as “standard” such as 10% to 5000 copies, 12.5% on next 5000, and 15% thereafter but it’s based on net receipts.

Sounds good until you calculate the math. 10% of net equals about 5% of retail price. Not exactly the same thing so do your monster math.

3. Warranties and Indemnities clauses where the author is on the hook for all the costs.

The author should only be fully responsible if they are found guilty and in breach of this clause. I’ve seen clauses where authors are on the hook for the full cost of even an alleged breach and yet they have no say in the proceedings. Oi! Even Frankenstein got a better deal.

4. Joint accounting.

Publishers love joint accounting. That means they link the monies of multiple books together. In short, an author doesn’t see a penny of royalties until ALL books in the contract earn out and only then are royalties paid. You might be waiting years and years to kill that zombie.

5. Unmodified competing works clauses.

If you aren’t really really careful, you might be legally obligated to not pursue any other writing work until the books in your contract are out of print and the rights revert back to you.

This is definitely worst case scenario but depending on the language in the contract, you might have backed yourself into this corner. Talk about hamstringing your career as a writer.

For me, in this digital age, the above are way scarier than anything that might go bump in the night.

Singing To My Choir!

STATUS: Monday it was 80 degrees. Today it’s snowing. Tomorrow it will be sunny and in the high 50s. And beautiful again by the weekend. Not sure what shoes to keep out or put into storage.

What’s playing on the XM or iPod right now? CHINA GIRL by David Bowie

So last week, in my status, I mentioned that we had received three covers and nixed three covers. So needless to say, it’s been nothing but cover talks, phone calls, and strategy ever since.

For the newer writers out there, an author does not get approval over covers unless he/she is at a very high level as an author. At NLA (and I imagine this is true for most agents), we always put cover consultation in the contract.

However, the definition of “consult” can be very loose. I’ve had some editors involve the author from the very first illustrative sketch to the final version. I’ve had some editors send it to the author when complete and simply say here it is. (To me, that’s not consult and I argue it.) For most editors, they are really invested in the author liking the cover so they actually allow a lot of input.

I’ve been lucky this week. The editors were fully supportive, nixed the covers and sent them back to the drawing board.

And then this morning, one of my authors sent me this link to PW’s Blog Shelftalker. I immediately read it and felt an overwhelming urge to say “Amen!” and “Keep singing my song!”

In the past weeks I’ve said everything mentioned here:

1. Misleading cover image that doesn’t remotely match the novel’s content.

Please, I beg you, for women’s fiction, no more pictures of pastoral objects like a bike or a hammock on a lovely sun porch. Debbie Macomber already has that cover thank you.

2. Same Old Cover Designs That Fit The Popular Trend.

I echo Elizabeth, please, no more covers of models in gowns, young women lying down, partial face images. When we got the ARE mailing of the “hot summer books” from a variety of young adult publishers, it was clear that any one title sent in that bunch was going to have trouble standing out. Every single one had a picture of a girl in some kind of dark, mysterious background or in a dark nature setting.

But I would like to add one to the list. No more jarringly ugly covers. I literally got a cover where the colors clashed so badly, I couldn’t figure out why somebody thought that color palette was a good idea.

Trust me, I’m not an art major or graphic designer but I am an avid reader and have seen my share of art through the ages. I know ugly when I see it.

In talking to one editor recently, I said, “all I have is my immediate gut reaction and right now, my gut says Oh Please No.

I could have kissed the editor when she said, “no prob; we’ll throw it out.”

Tales From The Contract Wars

Status: It’s pouring rain and the temps feel anything like spring but I’m eating ice cream right now anyway.


What’s Playing on the XM or iPod right now? DON’T GIVE UP ON ME NOW by Ben Harper


Today we officially wrapped up our negotiations on the new Macmillan boilerplate contract. It only took 6 months, 2 weeks, and 3 days from start to finish. It was worth it to get a decent contract.


Oddly enough I was excited to sell yet another book to a Macmillan imprint. THAT contract will only take several weeks. All the heavy lifting is done.


Then I get a new Random House contract in. Basically the same except for 2 rather key clauses that come at the very end of the contract but are referenced throughout.


Great. Publishers will certainly let you reserve rights but are now inserting clauses that hamstring the author from exploiting those reserved rights.


This seems to be the latest fashion.


And I’m Still Talking About Derivative Works

STATUS: My goal today is to work through ALL emails in my inbox. I probably have 8 hours of work ahead of me just on that. It’s very sad when I get a little behind on it.

What’s playing on the XM or iPod right now? WHO’S CRYING NOW by Randy Crawford

I do find it funny that when I talk about contracts, I get the fewest number of comments to the entry. Now I understand that folks may still be reading the blog entry even if they aren’t commenting but I do equate number of comments with general interest in the topic.

But I’ve got one more entry on derivative works before I lay this topic to rest (for a little while anyway). And that’s to talk about fiction. For me, I rarely do nonfiction so I wasn’t as worried about the ramifications of this clause in regards to that. It’s also more conceivable to figure what could be considered a derivative work in the NF realm.

I do fiction. So I’m particularly interested in what might be considered a derivative work in this realm. I had a sneaky suspicion that I already knew.

And I was right.

For fiction, it could be conceivably argued that a comic book or graphic novel is a derivative work based off of the original novel.

Not that I agree even remotely. But it could be argued and that’s exactly what I did not want to hear.

Because to make it clear whether it would or would not be considered a derivative work, my guess is that would have to be challenged and determined in a court of law.

Once again, let me add my disclaimer that I’m not a copyright attorney, and I’m not dispensing legal advice or legal opinions here. These are simply my musings on how this clause could be interpreted.

Let’s Continue Talking About Derivative Works

STATUS: Two years and two months after initial publication, HOTEL ON THE CORNER OF BITTER AND SWEET cracks the top 10 again on the NYT list. Time to celebrate.

What’s playing on the XM or iPod right now? YOU NEEDED ME by Anne Murray

I can tell by the overwhelming number of comments on my last post that discussing copyright is definitely whipping my blog readers into a verbal frenzy.

How many of you used the copyright act as a sleep aid on Monday?

But I do think it’s worth continuing the discussion. As I mentioned Monday, I could see how derivative works could be created for nonfiction work.

For example, and this is just off the top of my head and probably not the best example out there but I think it will give you a sense, is to think of a nonfiction work on decorating for the holidays. In this work, let’s say there is one chapter on table place settings. The publisher than decides to take one aspect of holiday place settings from this chapter and create a whole new gift book on holiday place settings.

That would be a derivative work, created by the publisher and they would own the copyright (at least according to this clause 6.b. in the Macmillan contract.)

In talking to my lawyer, we discussed at length how a derivative work could be a book trailer. Definition of derivative work is based on one or more pre-existing works, such as translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted.

In talking with Macmillan, this is an example they gave as something they could create that would be covered under this clause 6.b.

More on fiction tomorrow. Hopefully I won’t run out of time.

So Let’s Talk Derivative Works

Status: These dang computers. I want to bang my head on my desk.

What’s Playing on the XM or iPod right now? MARRY ME by Train

About two weeks ago I mentioned that the most problematic issue in the new Macmillan boilerplate was the new clause 6. b. that granted the publisher the right to the copyright in any derivative work created by the publisher.

Just for the record, I’m not a copyright attorney and I don’t pretend to be one on TV or if I stay at a Holiday Inn Express. In other words, I’m not dispensing legal advice here; I’m simply sharing with you my general musings regarding the clause.

Since I don’t have the expertise, I sent it to my IP attorney. Now he’s not a copyright attorney either but his law firm certainly has an expert in-house so we looped him on the conversation as well.

A virtual copyright party at NLA!

His biggest concern was the broadness of the clause and how derivative works is not clearly defined. If you’d like some light reading before you go to bed tonight, feel free to click here. This will link you to the copyright act in all its glory. You’ll want to click on Chapter 1 and peruse sections 102 and 103 that particularly discuss derivative works.

He also let me know that there are currently lawsuits in process that examine the scope of derivative works and what can or can’t be defined as such. Fun.

So two thoughts:
1. It’s obviously better to remove the clause and any reference to derivative works from the contract. And, if you have leverage, it can be done. But if you don’t…

2. How best to restrict this clause in such a way to make pursuit of derivative works impossible without expressed approval of the author?

Now we’re talking. My lawyer gave me some good insights and if you want to pay my lawyer fees, then I could share them on the blog. *grin*

This is why you have agents by the way.

My other big question was this: I get how a derivative work could be done fairly easily with a nonfiction project, but I wasn’t certain how it would apply to fiction. Now I am.

More on that tomorrow. Stay tuned.

More Train music on iLike