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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."
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.
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.
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
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.)
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.
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.