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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."
could lead to substandard literature. I think what we need as something akin to the GNU Public License for writers as well but with some kind of a modification that enables them to collect what little royalty that can come their way at least then. The best way for writers out of this exploitation is to collectively refrain temporarily from bringing out any books through such autocratic ham-handed corporations and GPL their works instead. That way, they also reach out to a larger and (may I say) a much more enlightened audience. Not only will that emphasize their importance to the publishers but it will also, I am sure, succeed in exposing their misdemeanors.
If the Internet is supposed to free musicians to produce without the middlemen of publishers with unfair contracts, just imagine what it can do to writers to avoid contracts like these.
I've been an online-only amateur author for the last ten years (here's my current project, in fact). I do all my work on the web, which gives me huge advantages in terms of reader feedback, online draft publishing to get comments and criticism, and as much graphical/multimedia extras as I feel are appropriate to each product. I haven't felt the need to seek out a publisher yet -- the Internet gives me a much richer experience as an author in every respect except for money and mass-audience exposure.
It makes good sense. Writing is a form of content that's perfect for a text based web medium, and it runs up lower bandwidth charges than indie musicians manage with MP3 libraries. There are no distribution costs whatsoever except for bandwidth; all you really need to spend major money on is promotional muscle. The cons are the typical "I want a real solid paper thing in my hands" attitudes, but print on demand services would take care of that.
I'll admit, right now, there is no economic model to make it happen. Gotta be practical about it; I couldn't start making the kind of money off my work that I could be by publishing traditionally. But I see the potential there, and once a good system is developed, this could be the way to free authors from the constraints of publishers once and for all.
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?
There's a long story on Michael Moore's page about how he managed to get his book in print in spite of the best efforts of his publisher.
Basically, his publishing company was either a) gonna reprint the book (at Michael's expense) with more PC language or b) sit on it forever. There was nothing he could do about it, legally speaking. A letter writing campaign by a bunch of librarians (and the promise of considerable bad press) evidently forced Harper Collins to capitulate.
As regards the argument that the publisher was right, and that the book was fundamentally flawed, the onion seems to agree. I am not saying that the Onion would condone censoring it on that basis, merely that they agree with the substantive portions of the publisher's complaints, and that POV deserves to be aired, as well.
I'm think that Michael Moore would agree that it his notoriety that saved his book, and that a less-well-known author would have had no such recourse, since their reamed-being would not have made a splash in the press.
The good and new comes from no quarter where it is looked for, and is always something different from what is expected.
Because people have learned, in Old Media, all the way they could have screwed the author, the consumer, and the public, if only they had known. But they accidentally let all these roadblocks, legal and social, arise that raise expectations in Old Media. Ahhhh, but in New Media, there are no such blocks.
Precedent will be allowed to apply only and exactly to the extent it helps maximize the profits of the corporations. Otherwise, it will be used and discarded -- just like those artists, those consumers, and that public.
The Mongrel Dogs Who Teach
There already is one. I use it on my work, "The Japanese Art of War." I think the real upshot of this story is that more and more people will consider using vanity press. It would be difficult to publish as many books that way, but if you are not going to get paid for it, then what is the problem? If you make more money selling 10,000 books via vanity than selling 1 million books via a publisher why wouldn't you accept the risks of a vanity pressing? At least you get total control of your book before, during and after publishing. Look at ID - those guys did great selling doom on their own. In the end they made more money selling via Activision -- but I think the deal they got there was much sweeter.
I've written a couple of computer books. On my first contract, there were a few clauses which made me uncomfortable. I raised these issues, certain that the publisher would just look elsewhere. To my surprise, they DID negotiate, and (after a month of stonewalling), they CAVED! This knowledge made negotiations for the second book much easier.
Don't just accept these terms. Without authors, publishers have nothing.
I've published 17 books professionally, through everyone from McGraw-Hill to Microsoft to the old (and recently resurrected) M&T Books. Five years ago, I ended a successful ten-year career as a full-time write to re-enter the "regular" workforce. Draconian contracts were a major reason for my career detour.
Modern publishing is about the control of intellectual property.
Publishers want to own copyright (i.e., control), something I am unwilling to give up. I wrote the damned thing, and for better or worse, it is my intellectual property. I would rather give away my work than sell it into corporate slavery. Once, the relationship between author and publisher was one of mutual benefit; now, writers are largely treated as property by corporate publishing houses.
And, to be less idealistic, the pay rate for writing sucks. Even the magazines pay pitiful amounts for articles that take considerable effort. I was doing pretty good as a writer -- 40-60K %US in a good year -- but I doubled that going into industry. And the paychecks now arrive with some reasonable regularity. I can't begin to enumerate the ways in which corporate publishers (every one I've worked with, with the notable exception [so far] of O'Reilly) rip off authors, by twisting terms, demanding future rights, selling books through third parties, and "forgetting" things. Ugh... the "freedom" that comes without a day job was great, but at least now I know how much I'm being paid and when!
Not that I wouldn't sign with a publisher who was interested in a mutual relationship. I just haven't met one recently.
I love writing; I love sharing with my readers. Today publish through the web and other venues, where I can write what I want, when I want, about what I want, without ignorant marketers, semi-literate editors, and corporate lawyers mucking about in my product. My readers decide what they like and don't like; I can update material as necessary, and no one is telling me to change what I write for "marketting" purposes.
In the end, giving up "professional" writing has given me unexpected freedom -- and that's a Good Thing.
All about me
Grievance & Contract Division
of the
National Writer's Union
Well worth it.
Sig: What Happened To The Censorware Project (censorware.org)
GET AN AGENT.
Yes, the publisher will screw you if you sign that contract. That's because they don't seriously expect you to sign it; it's the first step in the negotiation process. If you get an agent, that agent will know all about this, and will get you a much fairer contract in practically no time. That's what the agent is for.
A good agent can get you a far better deal than you can. All professionals use agents. (Unless they're lawyers writing in their spare time... does happen.)
GET AN AGENT.
(Disclaimer: IAmNotAnAuthorIJustPretendToBeOne.SeeALicensedProf essionalIfSymptomsPersist.)
At times when engineers have more clout, they can do something about it (although I think most people just shrug and sign the forms without any negotiation, which could be part of the problem), but if you need the job, and they have it, you have to sign.
Why is Grand Theft Auto a much more serious crime than Reckless Driving?
Do you like getting paid for your work?
There is nothing so silly as other peoples traditions, and nothing so sacred as our own.
If the future book lends itself to self-publishing, why not?
The most successful self-publisher I know about is Edward Tufte. He has sold hundreds of thousands of copies of his three books. There is an interview in which he tells why and how he self-published.
An excerpt from that interview follows:
It turned out that all self-publishing required was a really good book designer, some money, and a large garage. For capital, I took out another mortgage on my house. This also concentrated my mind, in part because interest rates were 18% at the time. The bank officer said this was the second most unusual loan that she had ever made; first place belonged to a loan to a circus to buy an elephant!
My view on self-publishing was to go all out, to make the best and most elegant and wonderful book possible, without compromise. Otherwise, why do it? If I wanted to mess it up, I could have gone to a real publisher. And I also wanted a reasonable price so that the book would be widely accessible. It all worked out, dreamlike
There are three rules that I have learned in business... they have helped me a lot. One of them applies in this one.
Currently one is in effect in my life right now. I am in a restraint of trade situation myself right now. My company made me sign a non-compete contract after I spent the money and effort to move, two days into the job, and I couldn't afford to walk out on those bastards. What do I do that warrants a non-compete contract? I'm a news photographer, figure that one out. I always thought of my job as interchangeable with others. But I couldn't afford to not sign and take my stuff back hundreds of miles. As usual with contracts, one signs reluctantly or under duress, while the other one smiles all the way to the bank.
Anyway, the three rules:
Rule #1. Any high profit industry is made high profit off of the backs of others. Expect lawyers. They are the luxury of high profits. The reason being that the people who get money in high profit industries immediately spend money on lawyers to insulate themselves and to rope in a permanent, high profit solutions against their customers and against their employees. Look at cigarettes, entertainment, alcohol, pornography, and the auto industry (personally, I am not surprised if soon cars come with waiver forms for the purchaser to get them out of the f'n lot... so an irresponsible company like Ford can so obviously produce top heavy, gas-guzzling deathtraps of excess that the American public so desires).
Anyway, the other two rules of note that will save you trouble:
Rule #2: Never work high up in a family business. If you are the same level as a family member, you're screwed. You will work forever. The family member will work to incompetence with 100% job security. You will make mention of it and get fired. Your options? Keep your mouth shut in an increasingly bad situation until you go nuts, think less of yourself and your life and continue working, or quit. Of course, never getting in that situation is the best. This rule also works for any business that works similar to a family business, meaning if your boss plays favorites a lot, say with a cute girl or something similar.
Rule #3: Good products and services sell themselves; it is the junk that you push. This is the most important rule of them all, one that after learning, makes you see the whole world of business differently.
You should be immediately suspicious of all sales tactics. If anyone is trying to sell something to you, you don't want it. REPEAT AFTER ME, "Salesmanship is the added cost to an inferior or overpriced product." If it was good, and you wanted it, no one would have to sell it to you... you would meet them at the checkout line with it in hand. Think about it. You are actively searching for things you like and want. This works in all things... including gettting jobs, cars, and yes, even dates.
...for a long, long time. What seems to be changing is the insistence on not changing the terms.
As far back as 1975, Frank Herbert (a very successful author) and Ben Bova (a fairly ethical editor) were telling young authors never to sign the first contract a publisher offered you. The contracts always included all kinds of outrageous clauses. (Well, maybe not all kinds, since this article points out some new ones.) Herbert said that even with all his experience the publishers were still sending him exploitative contracts and his agent was still crossing out sentences and sending them back.
Bova claimed that the publishers knew the contracts were outrageous, fully expected them to be rewritten by the authors, and continued to send them out in hopes of achieving the indentured servitude of a major talent. Some first-time writers told them they were afraid they wouldn't get published if they crossed out things on the contract. But Bova maintained that the publishers would agree to any reasonable change because their editors would already have decided they wanted to publish the book.
This last seems to be the thing which is changing, according to the linked article. Which seems strange to me, given the fact that writers have never been in a position of greater power. It has never been easier to self-publish, let alone the possibilities of publishing your own work on the Internet.
In summary, when you get an outrageous offer:
1) Read the Writers Union advice linked in an earlier post, cross out the things you should cross out, and send it back.
2) If you're not comfortable doing this yourself (or if you're tired of doing it yourself every time you get an acceptance), get an agent. Again, this is explained in an earlier post.
3) If your publisher refuses to comply, get another publisher or self-publish.
Life is too short to allow yourself to be enslaved by immoral cretins.
Eternal vigilance only works if you look in every direction.
From the article:
:-)) and pump them for advice...
In the past, when an author signed a contract with a publisher, he or she could safely assume that the book under contract would be published. However, as a general rule, most publishers now insist upon a clause that relieves them of that obligation. More specifically, if a publisher chooses for any reason not to publish a given book, the author can keep the portion of the advance that has been paid. But that's all. And in some instances, if the author resells the book to another publisher, even that partial advance must be repaid. In other words, the standard publishing contract today is nothing more than a one-sided option to publish--obligating the author, but not the publisher.
Actually, a clause like that has always been there. The difference is that before it took a catastrophe of major proportion to make a publisher actually invoke the clause. Nowadays, when a publisher is in peril (or at least its profits are), it invokes those clauses much more easily. A favourite for fiction publishers is the due date clause. Most fiction authors are perennially late, and this clause (which has always existed) can allow you to can a substantial number of books for only half their advance.
Of course, publishers that play dirty games soon become publishers of last resort among those in the know. The name of the game here is to keep up on industry gossip! Join any author associations that you can and mingle with established authors.
Also note that the rules for bestselling authors are so different from beginning authors that there's not much to be learned from them. Find a midlist author (or three) who's work you like (most authors are very amenable to heartfelt complements
Why is it that all of the *new* media content has attracted so much bad practise
Because people have learned, in Old Media, all the way they could have screwed the author, the consumer, and the public, if only they had known. But they accidentally let all these roadblocks, legal and social, arise that raise expectations in Old Media. Ahhhh, but in New Media, there are no such blocks.
Actually, there's a slightly less pernicious possibility. Lots of companies are scared pea green that something they don't anticipate will slap them upside the head and destroy them in one fell swoop.
The only way to be able to handle the unforseen is to have all the power yourself, allowing you to react as necessary. Don't want to find out that new "mind-imprinting technology" that didn't exist last year is going to render your multi-billion dollar investment in books and movies worthless? Then make damn sure you own the rights to use the the content you publish in any new medium. Make certain you have the right to make any changes necessary in order to make the content compatible. Make certain you have clauses that can allow you to dump the content that is now valueless without forking over any more money than you've already paid...
Old media was based on the assumption of long-term stability. Technology has taken that away and made it possible to turn huge assets into so much waste in a matter of months.
[Of course, that's complete bunk, but have enough people yelling at you that you're going to go bankrupt because of this or that new technology and big suprise, you protect yourself.]
Of course, once you've got that power, it's pretty tempting to corporate executives (who now hold a lot more power over editors than in the past) to actually use it to boost profits. Absolute power and all that...
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...
This isn't news to me. I'm a novellist looking to get a first novel published, and have been hearing the same things. Publishers have realised that they can sign up more books than they can actually sell, and then keep some of them as perpetual bankers to fill slack spots. It's not really anything sinister, it's just that commissioning editors are more keen to justify their existence by signing up books than marketing managers are to dilute their budget stuffing the channel with no-namers. It's simple supply and demand: book buyers make their decision mostly based on the author name, then in decreasing order of importance, the cover art, the title, the cover quotes (from authors in the same stable, naturally), then the cover blurb and finally the author bio. Consider the shelves groaning under the weight of Koontz, King, McCaffrey and Pratchett, and anything featuring Josh Kirbyesque artwork for that matter.
I have been advised that my options for a first novel are:
I'm going for the multi-book option. If publishers want to sell trilogies, a trilogy they shall get (with outlines for five more). I stopped book the first a little prematurely at 90,000 words, and am 30,000 into book the second. I've pretty much accepted that I have to write another 120,000 words or so before I can approach a publisher from anything like a position of strength. As I said, this isn't a problem for me, writing is a hobby at the moment, and the long term payoff will be better. But this would be impossible for someone wanting to write for a living.
This is quite apart from the problem of stopping your work from going straight off the top of the slush pile into the outgoing mail (or the round file). What's making that situation worse is that many publishers are looking for The Next Harry Potter, which means they're prepared to throw their slender resources at promoting a very few new "personality" authors in the hope of making it big, while treating the majority of their current stable as shelf padders and rejecting the rest of the new authors out of hand. Publishers don't accept books any more, they accept authors and series. A slush pile submission really has to be accompanied by a colourful and illustrated biography; you're not submitting a well written novel, but an attractive sales pitch for an ongoing cash cow.
Bear in mind that I'm still optimistic enough to believe that if I put in the work up front, I can be one of those lucky breakthrough authors. Get back to me in a few years, and I might have even more reservations about the whole process. ;-)
If you were blocking sigs, you wouldn't have to read this.
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
.
-- 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.