Contracts And Other Snares

Selling Your Baby For A Handful Of Magic Beans

Let me state the obvious right off: I am not a lawyer, nor do I play one on TV. The comments in this file are based entirely on my own experience and those shared by others, so don't consider this legal advice. After all, it's free, and worth every penny you paid for it.

So: you have your MS finished, edited until Hell won't have it, all shiny and ready to go to the publisher. And, Lo! You receive a letter approving your work, Contract and Release Form enclosed. Your troubles are over! Your long struggle is finally paying off! Or is it?

Not so fast there, Bubba. That contract is the last of a long line of hurdles you must jump. In some ways it is the worst because now you are tangling with New York Lawyers who look on life as a 'zero-sum game' where there is a winner and a loser. Guess which you are. Its not to say these people, and the publishing houses they represent, are shysters who want nothing more than to carve their initials in your backside, but they are, in fact, shysters who want nothing more than to carve their initials in your backside.

A few years back, I actually heard the editor of a major New York brand admit, publicly at a convention, that, yes, they will take you for everything they can if you are not uber careful with your contracts. If one of the New York giants will do this (and admit it publicly!), we must assume they all will, to say nothing of the Small Press. The Small Press can receive some benefit of the doubt since most of them are amateurs themselves, but large or small, your signiture on a contract seals your fate. So ponder with care.

What about an agent? As an unknown newcomer, you can't expect to attract a literary agent unless you have a purchase offer from a New York house in hand (Good luck with that!) Few agents will show any interest in the Small Press, although it can happen. And of course New York won't give you a second look unless you have an agent. It's the ol' Catch 22 - what can you do?

Agents generally work on commission from your sale. This usually runs about 10% to 15% for established authors, but the sky's the limit for a newcomer. (Especially as the dollar figures on newcomer sales aren't that great.) As with the publisher, you need to ponder an agent's contract carefully since they can contain many of the same traps found in the publisher's contract. There is also the matter of how good an agent is. Your mileage will vary, so be alert for any clause locking you in with them, and don't hesitate to drop a poor performer.

As far as the Small Press is concerned, you can probably manage by relying on an attorney specializing in literary works, particularly the fiction market. Yes, attorneys cost money, and finding a literary specialist will take some digging, but getting it right the first time matters when you think of all the bear traps and tiger pits waiting for you. One good thing about an attorney is you can take their contract and use it as boilerplate for future sales.

Of course dealing with Amazon and Smashwords means accepting their boilerplate, good, bad, or indifferent. Generally their contracts are reasonable, but you need to go over them carefully to determine if you want to Take It Or Leave It.

Publishing contracts cover far more than the fact of a sale or the dollar amount. There are any number of details which can make a huge difference. Some obvious basic ones include:

Positioning: A retail outlet usually orders from a current title list each month, generally taking the most desirable titles first, then decreasing numbers as they work down the list. Where your title is on that list makes a big difference on your sales and, more critically, on whether your title does well enough for the publisher to continue supporting you. Your agent can work these deals for you.

Promotion: Advertising costs money, but is essential to your success. A well crafted contract will spell out any promotion costs the publisher will bear, as well as your contributions. You need to more or less figure on doing your own promotion in the early years, and even going to a convention costs. (But is tax deductable.)

Locking In: Here's a big one to look out for: a clause giving the publisher 'first rights to your next work at the same price and terms' sounds like a nice guarantee, but what if another publisher is willing to offer you more? What if your first title takes off, and you deserve better the next time? No less than Robert A Heinlein got caught by one of those traps, which locked him into an endless literary serfdom for years. (He finally broke out of it by offering a work the publisher couldn't accept, thus terminating that clause.)

Content: Another big snare is a clause requiring you to write more on your existing theme. Publishers, being only human, want to go with a sure winner, and if your first title does well, they'll want more of the same. If you are content to churn out an endless line of dreck, then Good Lord love ya'. But if, like me, you have a variety in mind, or if your one theme starts sliding, that's just too bad.

And, of course, there are any number of details which need to be spelled out, such as Deadlines: (Publishers work to strict press time limits, so you must be ready on time;) Penalty Clauses: (Miss your deadline, you tie up the publisher's printing plant: you will likely lose that deal altogether;) and Rewrite / Editing: (How much can they expect from you, and how soon?) There is at least as much involved in publishing your work as there was in writing it, so publishing contracts are an involved process requiring expert advice. Again the old trueism about being in business: 'You have to spend money to make money.' This is the critical moment in the life of your work: do what you must.

Related Topics:

Copyright And Copy Wrong
ISBN Numbers
Your Web Site
Contracts And Other Snares
Who Do You Trust?
Crunching The Numbers
Guerillas In Our Midst - Part 1: Conventions
Guerillas In Our Midst - Part 2: YouTube
Guerillas In Our Midst - Part 3: Networking
Guerillas In Our Midst - Part 4: Advertising

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