Looking at Your Contracts (Compendium Post)
This is a compendium post to refer back to. The original posts are here: Part 1, Part 2, Part 3. Plus my own contract templates.
All of what I'm about to say is in my capacity as a fellow writer giving writing advice to other writers. I am NOT a lawyer, I am NOT giving you any legal advice. I do NOT represent you or your legal interests in any way. Please do not give me any confidential information. Any such information will not be privileged.
Contracts are a Big Deal in publishing. Unfortunately, they're also ... well, contracts. They're filled with legalese and confusing terms. Sometimes you can be absolutely sure it means one thing... but it really means something else.
That happened to me last week. I sent out my contracts to authors and got quite a few squawks back. This surprised me - because I'd been using contracts like this for years and never heard a complaint. I've even gotten compliments on how clear they were.
It turned out that some of the people who call themselves "publishers" are more evil than I even considered being. And there's others who are in the same position I was in - well-meaning, but unaware of what was going on (and what impact it could have for the authors they publish).
Over this week I shared some of what I learned - to benefit authors, editors, and well-meaning publishers. I'll tell you what I did right, where I messed up, and I'll share an (anonymous) example of a bad contract. I want your comments, corrections, and horror stories. That way we all know what to look for, and hopefully a bit of why.
And for the rest of you "publishers" who used contracts to screw over everyone else...
What I Did Right
There were some things I did right - and they're things I look for in contracts.
• Contracts should explicitly grant rights, and all others should stay with the author. I largely did this - for example, stating that I only wanted print rights. Audio, film, or any other rights to the story stayed with the authors - unless they're going to use those rights. I erred by not explicitly stating that the rights were only in the context of the anthology.
• Contracts should state how long they last. I clearly stated a one-year exclusive period. Where I erred was in asking for non-exclusive print rights for the life of copyright.
• Contracts should explicitly state what each party gets Whether this was in terms of money, author copies, or the like, it was spelled out in the contract. Digital author copies and a print copy (or not). What percentage of royalties? When are payments due? All that kind of stuff is really important.
• Contracts should have a publish-by or revert clause If a market holds your story (after the contract is signed) and they don't bother to publish it, all rights should go back to the author automatically.
• Contracts should be clear, but not contain extra clauses I had clauses for third-party sales that simply were not needed. If some amazing opportunity comes up later, then you create a contract rider (or even a separate contract). Adding in clauses for unlikely situations makes the whole document more confusing. At the same time, you want everything to be explicitly defined and explained and obvious.
• Contracts should be clear about how they're going to use your work If you are granting, say, short story rights without it clearly being limited to use within a single anthology, the publisher might be able to just sell your individual story as a single or put it in another anthology altogether!
Bad Things Happen
I hinted at one of the bad things above - that publishers have started trying to sell individual stories out of anthologies without explicitly telling the authors what they're doing. This is so horrible on so many levels that it makes me furious just thinking about it.
More and more publishers are wanting full exclusive rights to anything they touch... and if a publisher has a non-exclusive right to that story, then there's a big problem. But it's worse! Think about this - how many Stephen King novels and movies started out as a short story? There is a real possiblity that a publisher holding on to that non-exclusive of the inspiring short story might throw a wrench in that future sale. This means there is no such thing as "just a short story" any more.
Also, a disturbing number of small publishers are using the sale of author copies to generate income for themselves. Here's your superpower, authors and editors: You can look up how much it costs them. CreateSpace, for example, lets you plug in the numbers so you can see what the publisher pays.
Please note: That difference between cover price and the buy author copy rate is NOT what I make for each book you buy from Amazon, B&N, or even directly from the website. if you poke around more, you'll also see that selling copies through Amazon or "expanded distribution" is considerably more expensive. I price my print books so that the authors make about the same as with the digital book. Only my authors get copies at cost - largely so that they can make some money if they decide to sell books at a signing or convention. I think that's pretty fair.
I've managed to get this far doing a lot of work on a handshake - because I know the people I've worked with. But as I "level up", I'm working with more people who have barely heard of me. So I do a lot of work to ensure that my contracts protect against the horror stories and sneaky publisher tricks that I hear about (or experience).
The Bad Contract
So let's look at some bits of a contract that was passed to me. Publisher and source name excised, of course - I am presuming that the publisher simply doesn't know any better.
Owner hereby grants to The Publisher a worldwide non-exclusive license to reproduce, publish and display the Material, in whole or in part, and to incorporate the Material, in whole or in part, into other works (the “Derivative Works”), as determined by The Publisher.
This is bad on multiple levels. The contract says they can take a short story and repackage it in any anthology (or drop it from anthologies, add to another anthology, etc) however they want, whenever they want, at their discretion. It also says they can create other works based on your work - audio? film? a novel? - without telling anyone. It isn't clear that it's English language only, or that it's print only. Without clearly defining audio rights (or English language rights), it could be seen as granting translation, audio, film rights.
Owner acknowledges that The Publisher is under no obligation to publish or use the Material submitted for consideration in any way. The Owner further acknowledges that no compensation is due from The Publisher should The Publisher choose to use the Material.
The second part is kind of horrible - but is hopefully due to the specific project that this contract was for. But let's note that this contract says they can use it however they want, whenever they want, as much as they want, without paying you a cent. But the first part is bad enough - there is NO POINT in signing a contract if they're not going to use the material.
This Agreement constitutes the entire and only agreement between the parties and all other prior negotiations, agreements, representations and understandings are superseded hereby.
This is a dangerous clause for a simple reason - it does not specify for this project. So if you signed a multi-book deal with them first, then signed this puppy, I think there's an argument that this contract makes the rest of them moot regardless of the project in question. If anything, this clause hurts the publisher - but it's a good example of how omitting a single bit of detail can radically change the meaning of a clause.
That any works submitted become the exculsive use of The Publisher until January 1st the year after The Publisher prints the work in question.
There's no publish-by or revert clause, and especially when combined with the "we don't have to use your work" clause above, the publisher could hold onto your work and legally keep you from ever publishing it.
On the first January 1st to follow any printing of material by The Publisher the work in question may be used by the original owner as he/she sees fit but must inform any other agency that The Publisher continues to have rights to print any submitted or printed material in whole or in part for advertising purposes.
Rights reversion should be clearly stated as such - and should be phrased as limiting the publisher's rights. That is, THE AUTHOR IS granting the rights, the publisher's rights EXPIRE after a certain length of time.
A horrible contract does not mean that a publisher is trying to take advantage of you. It just means they could take advantage of you, whether intentionally or due to ignorance. (Again, that's one of the reasons I'm writing this series of posts.)
Of course, even if the contract is great, they might not be providing enough value (in terms of exposure or money) to be worth what they're asking for. Or they could otherwise behave badly - paying late, trying to do digital versions without asking, or generally being scum-sucking vermin.
But luckily, the Internet is changing publishing so that doing that sort of thing is getting harder and harder.
And be sure to check out Writer Beware for a lot more advice on this sort of thing. They're an invaluable resource.
[EDIT 18 August - I realized I'd linked to the contract template post, but not included it in this compendium. My apologies.]
So I realized today that it doesn't make a lot of sense for me to talk about contracts without actually offering up my templates for contracts. Most of what I've learned has been through looking at other contracts, and sometimes the examples I've had... well, they were a lot worse than I thought they were. They were worse than the publisher thought they were, probably because they were all deriving from a crappy template.
So, I thought of open source software. Sharing information has always been the best way for me to learn more. Each person's expertise and insight helps make the software better - and you're free to do your own thing if you like. Sounds perfect.
But I didn't know how to do it. The problem, I always thought, was that I couldn't show the way my contracts updated and evolved as I learned more in a transparent way.
And then I realized that I wasn't thinking enough like a geek. I forgot about git.
Git is version control. That means that changes to things (like, say, a text file) are saved publicly, and you can track changes over time. Take a look right here - the + means it was added (a - would mean something was deleted), and you can see the comment above as to why that commit (change) was done.
Of course, there are some disclaimers and such that I have to do:
- These are under the MIT license. One portion of that license expressly states "THE WORK IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE work OR THE USE OR OTHER DEALINGS IN THE WORK." So yeah, no guarantees. This could totally blow up in your (and, therefore, my) face.
- I'm not a lawyer. I don't pretend to be. Don't think I am. I could be horribly, horribly wrong.
- You can sue someone for breathing. No contract, no matter how well-written, will completely protect you from lawsuits. They sure help, though.
- Please note that these templates are NOT finished contracts, and currently contain contradictory information and clauses to cover a majority of instances. I will cut and modify clauses as applicable for each individual contract. For example, some books I've published pay a flat fee. Some are royalty-only. And some are a mix depending on the length of the work in question. So if you get a contract from me, it may have different elements than these templates. Read the damn contract carefully.
- Not all contracts from Alliteration Ink will contain all of these clauses.
- These contracts do not supersede or preempt existing contracts.
- Feedback on these contracts is welcomed. The goal of sharing these contracts is to improve the knowledge of authors, myself, and hold publishers (including myself) to a higher standard. If you have a question about why something is written the way it is, please feel free to ask.
The contract templates are hosted on GitHub here: https://github.com/uriel1998/ainkcontracts
Thanks for reading all this, and I hope it helps you as a writer, publisher, or as both!