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When Publishing Contracts Go Bad
drmofe writes: "It's not just recording artists who are getting screwed over royalty payments and publishing rights. MediaChannel has an op-ed piece asserting that standard publisher-author contracts are now so restrictive that they might in fact be "restraint of trade" under the US anti-trust laws."
Publishers have these terrible contracts because they can afford to lose authors over contract terms. My advice to authors: don't try to make a living from it.
Karma: Good (despite my invention of the Karma: sig)
Whenever somebody asks a "Why..." question that involves a large corporation, the answer is always "Money." If you start with that premise, everything a corporation does is 100% logical.
...phil
"For a list of the ways which technology has failed to improve our quality of life, press 3."
Yes, publishing contracts are exploitive. And they are probably exploitive no matter who you sign with.
One way to reduce your exposure to exploitive contracts is to sign with a small press. If you're a first-time writer, you're likely to get a level of support and effort behind your book that is better than what you get with the big houses.
And there's another advantage. If you sign with a small press, you develop a close relationship with the owner of the company. My first book was published by a small press, and I've since become good friends with my publisher. There's (sometimes) a limit to how badly you can be screwed by a contract, when you're not dealing with a monolithic corporation, but a person who knows you -- a person who signs your royalty checks and has to look you in the eye.
I've had pretty good success with my first book (25,000 copies sold.) For any writers out there, I strongly suggest you find a competent and energetic small press, or, better yet, publish the thing yourself.
I'm generally "Interesting," "Insightful," and even "Funny" here. What the hell happens to me at parties?
The biggest problem with online publishing is that anybody could do it. Hence, there is no quality control. Publishers won't publish any junk you send them.
My brother has recently published a book. If he had published it online, noone would have read it. But now the book has been read by much more people.
I, personally prefer getting my books online (or from the local library). But I won't read a book that wasn't recommended.
Make even shorter URLs - 8LN.org
Heck, you have the same issue with the various scientific articles being published on the internet: such usually require peer review to validate the conclusions, but the sites that are offering the run-around the traditional journal publishers found a way to still allow this.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
Do you like getting paid for your work?
There is nothing so silly as other peoples traditions, and nothing so sacred as our own.
GET AN AGENT
This is absolutely essential advice. Once you have a contract in hand, it's not terribly difficult to get an agent. (It can be very difficult to get one without a contact. It can also be very difficult to get a publisher to read your book without an agent. Both sides want to use the other as a filter. Catch-22!)
However, to elaborate on that advice:
Find an agent with experience in your field.
The best bet is to try and find out the agents of people who are publishing with your prospective publisher (most authors are very forthcoming, and industry publications often list author's agents...)
The clout of an agent lies with the number of clients he has with a given publisher. The agent's angle is that if the publisher tries to force an outrageous contract on a weak author, the agent will decide to yank more established authors away from that house. No editor wants to be on a powerful agents black list. (And almost every agent has a few houses they won't deal with because they damaged one of their clients...)
Your job is to find an agent who your prospective publishing house doesn't want to anger (and then persuade him or her to represent you).
Of course, an agent will cost you between 10-15% and there's a good chance that they won't make it up by increasing the advance. However, they can usually get most of the ridiculous conditions removed. They've been playing this field for a long time, so they know what's recent foolishness and what's "time-honoured" contract conditions.
It used to be that an author would sell specific rights to a publisher, such as the right to print the first US edition of a work. I understand that in some European countries, copyright may not be sold. That is, only the original author(s) may hold copyright; they may not transfer it to others for money. With such a system, the author maintains control of the work for his lifetime, only granting specific license to publish to a publisher.
This sort of system would actually be more in line with the US Constitution, which says, The Congress shall have power . . . to promote the progress of science and useful arts . . . by securing for limited times to authors and inventors the exclusive rights to their
respective writings and discoveries.
IMHO, the current US copyright system is in violation of the US Constitition due to the fact that it does not exclusively secure the exclusive rights for the author. Copyright legislation should be revised to prohibit outright sale or transfer of copyright to any other individual or organization. The author(s) should be required to own the copyright themselves. The only exception would be to voluntarily place the work into the public domain.
And getting into the limited times issue. Obviously the highest limit in such a system consistent with the Constitution would be the lifespan of the author, since transfer, inheritance, etc. would be prohibited. Copyright could also not be limited to less than the life of the author, as this would violate the Vth Amendment: nor shall private property be taken for public use, without just compensation. It would be most consistant just to make copyright endure for the life of the author, period. Any other solution puts the author at the mercy of the publishers.
As to the argument that copyright should be inherited by the author's heirs, I say this is complete and utter rubbish. Let the author invest the income from his/her copyrights, and will the results of those investments to his heirs, like anyone who earns money by employment has to...
Termination clauses
Contracts are a two-way street. The publisher promises to publish the book as long as the author delivers what he promised to deliver. There are a few set ways in which a contract can be terminated:
- The author fails to deliver the book. At all. Every contract stipulates a delivery date, and there is usually a grace period for extenuating circumstances, or the contract is renegotiated. If the author still doesn't turn in the manuscript, there really isn't any way the publisher can publish it.
- The author delivers something substantially different from the book that was proposed and agreed upon. In this case the author is pulling the old bait-and-switch on the publisher, and there should be no obligation to publish a different book from the one the publisher thought they were contracting for.
- The author can also terminate a contract if he has delivered everything according to the contract but the publisher fails to publish within a certain time frame (usually a year to 18 months -- typical lead time for a fiction/nonfiction work is 9 months from delivery of manuscript to publication). The author does have some recourse against the big evil company.
Termination clauses are never invoked casually -- before the contract is even drawn up the publisher has decided they like this author and their book, and they want to publish it. They've scheduled it for some future date and they're counting on the revenue it'll bring. So they may be amenable to stretching deadlines, or reworking a manuscript that doesn't come in as they expected, but they're rarely going to ditch it altogether. They've invested in the book, and if they terminate the contract they're out the money already paid to the author. Sure, the author has to pay it back if they manage to sell it to another publisher, but it's only fair since the second publisher will no doubt have paid him another advance.Options
The case presented in the article is one of many possible option clauses; not all are so "Draconian". Rarely is the entire manuscript required before the publisher needs to decide whether to take on the next book or not, though it's true they're unlikely to commit to another book from an author before they see the sales record of the first one. But then again, how often is the next manuscript all finished before the first book is out? In the case where another book is already in the works and destined for another publisher, there are often amendments to the option clause to allow for it. As for putting an author's career on hold indefinitely, that author'd be a fool to agree to an option clause that didn't give the publisher a time limit to make an offer on the option work.
Royalties
Book royalties may not be that impressive, but the truth is most books don't earn out their advances in the first place. So for all the haggling over royalty rates, most authors won't see a dime after their last royalty advance, and the publisher swallows the difference. In those rare cases where the book does earn out, the author will almost certainly negotiate a better rate next time.
Yes, you can negotiate the terms. You can even get an agent to do it for you if you're willing to part with 10-15% of the earnings in exchange for a better deal and most likely a better relationship with your editor, one that isn't soured by a rough contract negotiation. Don't want your book excerpted somewhere embarassing? Ask for approval on licensing; you may get it.
If you want to point out problems with publishing, look to the conglomeration of publishing houses into massive corporations that care only about the bottom line, guaranteeing that the majority of potential authors never get offered that contract in the first place. (Ironically, that approach doesn't seem to have made any more money for the publishers than simply putting out the books they love.) The focus on commercialism paired with the increasing ability of Barnes & Noble to drive the book industry from the creation of books through to sales is a bigger part of what's wrong with book publishing today.
A previous poster mentioned this but was marked as flamebait. But the point is valid.
I was not aware of the language in the Sherman Anti-Trust act that the article quotes:
the Sherman Act has a second component aimed at shared abuse of power. To wit: "Every contract, combination, or conspiracy in restraint of trade is illegal."
That's dynamite. The question has long been raised, why isn't RIAA a monopoly, why doesn't someone file an anti-trust lawsuit against RIAA. The answer invariably given is that RIAA is just a trade group, an industry association that acts on behalf of many recording companies but itself doesn't really do anything.
Screw fighting RIAA...they are a multi-headed hydra. We are pissing away time and effort trying to fight the Hillary Rosen beast.
I think we need to focus on the real target, the recording companies themselves. We need to work towards anti-trust investigations of BMG, Sony, AOL Time Warner, Virgin, etc.
Who could not look at their actions toward online music in the past five years and not see a compelling restraint of trade? In concert (read: conspiracy) the major groups have all withheld licensing from any third-party group that wished to create a value-added-service based on record company products.
This would be like Dell refusing to sell me hardware because I charge people to set the hardware up for them. Dell also sells installation services. So I would be robbing Dell of money while at the same time gaining profit based on Dell hardware.
The argument above is ridiculous. But somehow the argument makes sense when we are talking about intangible intellectual property instead of real physical property...even though the economics of the situation should indicate that there is less risk for the intellectual property!
After all...if Dell were to experiment with promotions...give away servers to try and encourage future business...that represents real risk and real, on the book, loses. But if a record company decides to experiment with the same promotion, give away electronic copies of music to try and encourage future business...there is no risk and no real loss. Oh sure they would argue loss of future profits while at the same time ignoring that this is exactly what radio has been doing the past fifty years.
So then, if there is no real, reportable on the book, losses, shouldn't a record company be MORE willing to engage in unproved or far-sighted enterprises, like online music? But they haven't. They, in concert (read: conspiracy) had their trade group shut down any online company that would seek to gain a profit by adding some new value (search engines, recommendation engines, collections, remote cacheing) that is based on record company products.
That is restraint of trade.
- JoeShmoe
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-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
As comfortable as it may seem to think otherwise, there are sometimes when you simply need the advice of counsel. Period.
Do not try this at home, folks. In addition to helping you to be alive to issues that the plain language does not clearly raise, an experienced professional "knows" which terms are truly written in stone, which are routinely dropped when you ask for it, and which are going to require some degree (or a lot) of negotiation depending upon the circumstances.
Get an agent. If its a big deal, get a lawyer just for you, as well as the lawyer the agent uses. Don't give this a second thought -- the costs of negotiating these properly makes all of the difference in the world. Get an agent. Really. Just do it.
Competent representation can alleviate much of these issues. As recently as my last book deal (two years ago), publishers were still following pretty much the standard "dance," with terms no more egregious after negotiations than you might responsibly expect. On the other hand, without advice of counsel, substantial research or experience, you may find the agreement something of a minefield.