My little box of annoyances, Part I

Every now and then, it so happens that I get to see the contracts offered by publishers to (mostly) debut authors. And, for the most part, they look much the same. Long. Written in Legalish. Needlessly complicated.

And one-sided.

For obvious reasons, I most commonly see contracts when the writer concerned doesn’t have an agent. And, again for obvious reasons, publishers don’t feel obliged to play nice if they don’t have someone scary and experienced negotiating opposite them.

And, look. If I were an unagented author keen to get into print, I’d be willing to sign pretty much anything. Publishers know this, so they don’t exactly try to play nice.

But you don’t have to sign the contract that is put in front of you. You really don’t. It’s not poor etiquette to negotiate. Doing so marks you out as a smart author, not a difficult one. You just have to know where and how to direct your fire.

This email will start to give you a map. It’s not a complete map and I don’t know your specific circumstances. So caveat the first is simply that you should get your contract checked out by the Authors Guild (US) or the Society of Authors (UK).

The second caveat isn’t really one of those modest legalistic qualifications. Think of it more like someone shouting at you, using a bright red bullhorn, from a distance of about eight inches. It’s simply this:

IF YOUR CONTRACT INVOLVES YOU PAYING THE PUBLISHER, WHAT YOU HAVE IN FRONT OF YOU IS A VANITY PUBLISHING CONTRACT.

AVOID, AVOID, AVOID.

But let’s say you get an offer from a totally legitimate publisher. Maybe a big 5 firm, maybe a reputable independent, or maybe a digital-first imprint of some sort.

Now, OK, you are probably nice and somewhat uncomfortable with confrontation. Which is fine, but you’re not going to be confrontational. You’re going to be professional. And remember: editors are perfectly well used to literary agents hammering away at every detail of a contract. So negotiate. 

With that said, let’s take a look at my little box of annoyances. First up, we have:

The Right of First Refusal (RFR)

This is one of those clauses that has a perfectly innocent and acceptable idea at its heart, but can quickly morph into a beast.

The innocent idea is simply this. You and Megacorp Publishing Inc work happily together on your book. It’s published. It sells reasonably well. You write another book. What then?

Well, it would probably make sense for Megacorp to take first look at your new book and, potentially, make you an offer. If that offer is acceptable, you take it. If not, you politely refuse and take the book elsewhere.

That arrangement recognises that Megacorp are in the front of the queue, thanks to your prior relationship with them, but doesn‘t bind you into a longer term relationship that you may not want.

That innocent RFR clause, however, turns into a fang-toothed beast as soon as it starts to take on more layers.

So for example, you’ll sometimes see clauses which say that you may not accept any offer which is of a lower value than that first Megacorp one. Well, why shouldn’t you? Suppose your experience with Megacorp has been universally bad. And suppose that a brilliant and passionate indie publisher is desperate to publish your book. Why wouldn’t you take a lower offer from the latter if you want to? It’s your book, your life.

Or take another (very common) example. An RFR clause might say that Megacorp has the right to match the top-bid in any auction and walk away with the book.

Now that might sound almost fair, except that the existence of the clause will kill any auction. If other big publishers know that Megacorp can just swoop in and take your book, their incentive to make a play for it collapses.

Think of this from the editor’s point of view. To get a firm on board with an aggressive bid for a book, your putative editor is going to have to do a lot of internal marketing, potentially soliciting support as far up as the CEO. It’s one thing to do that if you stand an equal chance of success. It’s quite another if you know you are handicapped from the very start.

So: the naked RFR is fine. Anything else is a big no-no. 

The Non-Compete Clause

Let’s say you are an expert in family law. You have just written The Big Book of Family Law and sold it to Megacorp. Megacorp don’t want you selling The Jumbo Compendium of Family Law to a second publisher and Divorce for Dummies to a third.

So they put in a clause saying that you can’t sell competing titles to third parties. Then some corporate lawyers look at that clause and point out that it’s a bit ambiguous as to what is and isn’t a competing title, so they add a rider like “which, in the judgement of the Publisher, may compete with the Author’s Work …”

And boof: at a stroke, they give themselves an ironclad protection against you selling work to others.

The corporate lawyer goes home thinking, “What a very clever lawyer I am and how well I have protected our well-stuffed corporate coffers.”

But you hope to make your living (at least partly) by selling books about family law.

So don’t bind yourself. If other rival publishers want to publish books on family law, they will find people to write them. So Megacorp has not, in fact, done anything at all to protect itself from competition. They have just severely curtailed your chance to earn a living.

Don’t be bound.

If you are writing fiction, then there just shouldn’t be a non-compete clause in your contract at all, ever. I can’t think of an exception to that rule.

If you are writing non-fiction, then any non-compete clause needs to be very narrowly drawn – for example, it might expire after three years, or once book sales have dwindled beyond a certain point.

Again: a non-compete clause offers almost no benefit to the publisher and it does, potentially, do a lot of harm to you. So just say no.

The next thing to fly out of my Little Box of Annoyances is …

Movie rights & other land grabs

A publishing contract is there so that someone with a clear intention to exploit a particular right (namely: publishing your book in all the normal formats) has the ability to do so.

But Megacorp didn’t get to be the giant corporation is it by being timid. So let’s say your digital-first publisher plans to:

• Publish your manuscript in e-book form in the English language, worldwide
• Do the same in a print-on-demand edition
• Consider the possibility of issuing a hardback or trade paperback
• Maybe consider an audio version, if sales seem promising

That’s quite likely it. In effect, they’re saying “We need to be able to publish your book across all normal book formats and we’re the right people to do it.” That’s probably true, and that’s why you’re in the happy position of having a contract offer in the first place.

But Megacorp may also seek:

• The right to sell your book worldwide in any language
• Movie / TV and other dramatization rights

But why should they get these? They’re yours. If they have a specific, defined plan to exploit these rights – and they can share it with you and give you a named person to talk to on the subject – then fine. You may well wish to sell these rights under those circumstances.

Nearly always though, the company has no plan for these rights. Yes, Megacorp will go to the Frankfurt Book Fair with a list of books available for translation in its suitcase. But you won’t have any direct contact with the person selling. You’ll get no regular updates. You’ll have absolutely no way of knowing if any serious selling activity has ever been undertaken.

So simply reserve those rights. Say – politely, professionally – that if Megacorp presents you with a plausible plan for the exploitation of those rights, you’ll be very happy to consider selling them. But – no plan, no rights.

You wouldn’t normally hand something over for free just because someone asks for it, so don’t do it here.

Oh yes, and a literary agent selling those rights on your behalf would earn a 20% commission, so that’s the right amount to offer a publisher. Quite often publishers will demand the rights and ask for a 30% commission on sales. Which is greedy. And greed is bad, right?

***

This email is already ridiculously long, which means – alas – that I haven’t yet told you about the thing you most need to know about.

Ah well. I will come back to this subject next week. Until then, I shall just sit on my Little Box of Annoyances and try to stop it flying open.