Pub Rants

Category: publishing contracts

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.

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.

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.