Home » Contracts, Passive Guy » How to Read a Book Contract – Contempt

How to Read a Book Contract – Contempt

18 March 2012

A reprise of an earlier post.

Passive Guy has so many other things on his plate, he should put his inner ranter on hold, but a rant’s got to do what a rant’s got to do.

As PG has read book contracts for his clients (Thank You!) and contracts contributed to his Contract Collection (Thank You!), one message keeps coming through loud and strong.

Contempt.

Contempt for authors.

Contempt from publishers for authors.

Contempt from agents for authors.

As PG has mentioned before, during his legal and business career, he has negotiated, written, revised and reviewed many, many contracts (Hundreds? Thousands? He never counted and it’s too late to start now).

Some of the contracts were tough – dividing lots of money and property to settle a bitter divorce, creating a make-or-break deal for a small tech start-up with a Fortune 50 giant.

Some of the contracts were devious with PG sometimes discovering deviousness and sometimes creating it.

Some of the contracts were enormously complex — not quite book-length, but stuffed with dozens and dozens of cross-references and pages of defined terms that meant something different than they seemed to mean at first glance, particularly when they were combined with each other.

One of the things an experienced negotiator tries to do is to discern what’s behind the contract’s language, what the intent of the other side is, what they’re really seeking, what’s important and not important to them.

PG recently reviewed a contract that was strangely schizophrenic – generous to PG’s client on one hand and parsimonious on the other. On his first read-through, PG felt a little whiplash. When he went through the contract a second time, underlining, circling, writing cryptic notes in the margins, PG realized what was going on.

Believe it or not, lawyers have writing styles. The contract included two different writing styles.

While it’s possible two different lawyers in the same firm contributed to writing the contract, PG is pretty certain opposing counsel did a cut-and-paste for the harsh portion of the contract, the part representing a subject counsel didn’t understand very well. Because he/she was insecure about his knowledge, counsel hunted up a tough contract from a colleague or friend or book, pulled part of it out and dropped it into the fairly-reasonable partial draft he/she had already prepared.

This discovery will affect how PG approaches the negotiation – a little low-key education instead of responding to a slap in the face.

Speaking of slaps in the face, that pretty much describes most of the publishing and agency contracts PG reads.

First, measured against other classes of business agreements, they tend to be pretty sloppy. Large publisher, small publisher, pretty sloppy.

Indicia of sloppiness are many and varied, but include paragraphs that conflict with one another, vague and undefined terms and, sometimes, places where it’s clear a non-lawyer rewrote a paragraph. Badly.

As a general proposition, when a contract is important to an organization, the contract is well-written. When a contract is between a publisher and an author, it doesn’t matter. Even if the author reads it, she won’t understand it and neither will her agent. At any rate, the publisher will bully the author into doing things the publisher’s way regardless of what the contract says.

Contempt.

Many publishers have their version of a clause designed to capture new book rights that will be invented one hundred years from now.

Publishers were blind-sided by ebooks and have had to brazenly claim their contracts included ebooks even when the contract never mentioned anything but hardcovers and paperbacks.

Publishers know that if an author takes them to court, a judge will ask a question something like, “Where does it talk about ebooks in this contract?” Publisher’s counsel will respond by talking about emanations and penumbras floating around paragraph 15 and subparagraph 21(d). The judge’s well-honed BS meter will quickly be pegged in the red zone.

A contract is supposed to reflect the intentions of the parties at the time it is signed. Copyright law includes a presumption that any right not expressly granted by an author is deemed reserved to the author. If an author requests a standard reservation of rights clause, even a publisher may feel embarrassed by refusing to include it.

So, in the tradition of fighting the last war, we see a Rights Clause whereby the author grants the publisher the sole and exclusive right to create or produce or cause to magically appear any book or book-like object or book idea and beam the result into the sky in any form which is now or may in the future be stumbled-upon or imagined or hallucinated by the mind of man and/or machine in any conceivable or inconceivable way and anywhere throughout the world and the universe, whether presently mapped or unmapped, including parallel universes.

In the reality-based business world, if PG received a contract including a clause like this, he would call opposing counsel and ask, “Sally, what are you smoking?”

In the traditional publishing world, the author is supposed to sign at the bottom of the page.

Contempt.

Finally (for this post), there are all the smarmy little attempts to put one over on an author. PG can appreciate well-crafted deviousness just for the art of it, but these are stupid deviousness.

How to choose between so many candidates for discussion?

Passive Guy will return to last July for this one, an audit clause:

Author may, with sixty (60) days’ written notice but not more than once a year, assign and designate a certified and independent public accountant to examine Publisher’s records as they relate to the Work. Such examination shall be at Author’s expense unless errors are found in excess of ten percent (10%) of royalties in Author’s favor, then Publisher shall pay amounts owing for the Work and the reasonable cost of the audit.

As a condition precedent to the exercise by Author of his/her right to examine the books and records of Publisher, Author’s duly authorized certified and independent public accountant shall execute an agreement to the effect that any information obtained as a result of such examination shall be held strictly confidential and shall not be revealed to any third party other than Author or her representative without written permission by Publisher. Author also hereby agrees to hold all information and statements provided to Author or her accountant in strictest confidence.

Do you see the smarmy deviousness?

In order to perform an audit to determine if the publisher is stealing from the author, the accountant hired by the author will have to sign an agreement, an agreement the publisher will create.

How hard is it for the publisher to create an agreement no accountant will ever sign? Not very.

No signature, no audit. You’ll just have to be satisfied with the numbers we decide to put on your royalty report, dearie.

You say twenty of your friends each bought a copy of your book from Amazon in the middle of August and we showed no ebook sales on your royalty report for the second half of the year? Amazon makes mistakes all the time. Have your accountant sign our agreement and we’ll give you some numbers.

In the meantime, go write some blog posts and tweets to get your book sales back up. If you’re a good girl, we might give you a cookie with your next royalty report.

Contempt.

 

Contracts, Passive Guy

26 Comments to “How to Read a Book Contract – Contempt”

  1. This is true. I’ve been writing books for more than 20 years and have read and signed more than 70 original contracts or revisions. And with one notable exception early in my career, I have to agree with you. Publishers show absolutely no respect for the people who actually CREATE the original content on which their entire business is built.

    The early exception was a small but growing publisher with a contract only TWO PAGES long that referred to the author by her first name and was outstandingly fair. That publisher was bought out by one publisher after another and is now part of the Pearson Education publishing giant. I still write for them on occasion and I can assure you their contracts are no longer short, friendly, or, for the most part, fair.

    It’s odd to me that the situation seems to be getting worse for authors. Why odd? Well, let’s face it: traditional print publishing is going the way of monastery scribes. Ebooks, print on demand, and an ever-growing market for affordable self published works are making traditional print publishers more and more irrelevant. Simply said, authors don’t need them like we once did. We can create our content free of the restrictions publishers once put on us — page length, tone, writing style, etc. — and get it almost directly into the hands of readers. After writing 78 books for a verity of publishers, I’ve since self-bublished three books. I may not sell as many copies, but I earn more per book and have complete control over publication, copyright, reuse, and revision. Best of all, when I have an idea for a new book, I don’t have to beg a publisher for a contract and then wait while they get around to putting it in stores. Instead, I can just write the damn thing, publish it, and get on with my life.

    I’ve written about contract negotiation on my own blog — mostly to advise new, unagented authors about how it works. But I don’t envy the new writer trying to work with a traditional print publisher today. Contempt is certainly a good word to describe how they must feel about us.

  2. Wow! This makes me really glad I decided not to deal with traditional publishers.

  3. Dear PG: You pen a fine rant. I do want to say, since I’m in the unusual position of having experience as an intellectual property attorney and as a writer, that interpreting/drafting/negotiating contracts can be scary. It’s not, perhaps, as scary as non-lawyers think, but like anything else it takes practice. The more familiar you are with the landscape, the more comfortable you get with the norms and the anomalies. I know I don’t have to tell you this.

    So what does one do when in an anxiety-provoking position? When money and rent payments are on the line? One gets defensive. What we are seeing now is a whole group of folks involved in traditional publishing with their backs against the wall, reacting to the speedy and scary changes in the book biz.

    Having said that — even in more halcyon days, they never did give authors much respect.

    Go read this for a little bit of encouragement:

    http://www.thebookseller.com/blogs/agents-manifesto.html

    • Patrice – As you probably know, it’s a bad idea to go into a contract negotiation without an “or else” option. Negotiation studies people call it BATNA – Best Alternative to a Negotiated Settlement. If you aren’t prepared to walk away from the table, the chances of you getting a good contract are lower.

      Fortunately, indie publishing is an alternative these days. It may not be an idea alternative in the minds of someone who desperately needs an advance, but publisher negotiations are no longer all or nothing. An indie author who is making money from several self-published books is in a good position to negotiate many improvements in a typical publishing contract. Perhaps that’s why some agents don’t like indie authors – they’re not desperate enough to take anything the publisher puts in front of them to sign.

      • Wouldn’t that be to a Negotiated Agreement (rather than settlement)? That is, unless you’re BATNS ;)

        Your thought about the non-desperateness of indie authors is interesting. I’d say self-pubbed authers tend to be, in general, better educated about the publishing business, too. Thus making them ‘harder to work with’ in some agents’ eyes …

  4. @Patrice – Thanks for the link to Mr. Geller’s piece. It IS nice to hear someone who gets where the bread’s coming from in the supply chain.

    Unfortunately, others, in their “anxiety-provoking position” as you put it, don’t realize how much harm they are doing themselves in their online rants.

  5. Wow. Amazing. And publishers and literary agents wonder why so many authors are signing with Amazon. To put it succinctly: Duh.

    • Don’t fool yourself: Most (but not all) of them are signing with Amazon because they can’t “publish” a book any other way.

      • Although that does include the people who are writing Big Epic Stuff that no publisher will touch ’cause it’s Too Many Pages, and would be Too Expensive For A Newbie. What’s 25K words between friends? The difference between “I’ll represent you” and “I can’t sell this in this market.”

        And then there’s the amazingly popular fellow who, dear stars, needed a copy-editor for his first books. (I stopped reading after the second or third ’cause the price got too high for the lack of editing.) But he’s still writing, and still selling, with pretty decent Amazon rankings (last I looked). So yeah, I’d say that an editor would’ve cringed to read some of that work… and probably would’ve been dead wrong to turn him down.

  6. I have a background in real estate and banking law. It’s no secret the real estate contract are arcane (especially on the consumer side-have you seen a mortgage recently?). But those contracts are take it or leave it one sided-lenders simply won’t change them. (There are business reasons for this, mainly that to be marketable on the secondary market, the standard Fannie Mae contract must be used.)

    Learning about publishing, it seems contracts are even worse. And publishing contracts are supposed to be two sided.

    PG, I’m very curious if you have had any success negotiating contracts with publisher (if you can reveal anything on a general level)?

    • On a general level, the answer is yes, Scott.

      • So much is said about how bad publishing contracts are I got the impression that negotiating them were virtually impossible. I was curious if anyone was having success (with proper representation). If so, I’d take it as a good sign.

        • YES, it is possible to negotiate a book contract, even without an agent or a lawyer. You just need to know what you want and what you are willing to give up. Contracts are full of things that the publisher is willing to give on. You just have to figure out which ones they are and whether they match what you need. I blogged about this extensively. As Passive Guy said above, you have to be willing to walk away from the table if you don’t get the changes you must have. But to simply sign on the dotted line without asking for the changes you want is a great way to let the publisher walk all over you — on that contract and any future one.

          • Which is precisely where the contempt originates. It is one of the Iron Laws of Nature: Them as don’t fight back are food.

            Publishers and agents have become so accustomed to having writers beseeching them piteously for access to the system that they regard it as the norm. Consider the very word “submit”, as in “submit a manuscript”. No matter what they put in the contract, they know from long experience that the vast majority of writers will sign it with a flourish, then burst into tears of emotional relief, sobbing “thank you, thank you, thank you, O thank you so very much.” And another of the Iron Laws, a corollary of the above, is that it is impossible not to be contemptuous of the dependent. Doormats get walked on. Volunteer doormats get sneered at, besides.

            Power corrupts, but what’s meant by that is that having power eventually tempts the powerful into narrowly restricted ways of doing things; after an extended period of power, the powerful individual almost always doesn’t even know how to do it any other way. When people who have, for their entire careers, worked “the system” to their own advantage encounter someone who doesn’t accommodate the system and won’t go along, or has found a way around it, it’s a shock that can only be interpreted as a challenge to their power. They react in the only way they know how, by reasserting their power, because they’ve forgotten (if they ever knew) any other way.

            Which is the source of all the anti-Amazon and indie-dissing screeds from people whose lives depend on the system. It has a lot less to do with “livelihood” or income than you might think — many, perhaps most, of those people are smart enough to find alternate ways of making a living if they were inspired to do so. It’s the psychic rewards that are the painful loss. When what you’re used to is petitioners doing the full proskynesis and offering their firstborn with barbecue sauce to beg for favor, having somebody look you in the eye and ask “so what can you do for me?” is a blow that goes clear to the bone.

            Regards,
            Ric

    • At the risk of getting flagged as spam, here’s a link to my blog post, which provides quite a few specifics:

      http://www.aneclecticmind.com/2009/11/23/pro-writing-fundamentals-contract-negotiation/

      I write computer how-to books and have been doing so for 20+ years. This post is based on my experiences writing that kind of book. (Novel contracts are likely different.) I’ve written or revised 79 books for traditional print publishers and negotiated ALL of my contracts. Yes, publishers have made requested changes. And yes, I have walked away from more than one that I didn’t like when they refused to make the changes I needed. And no, I’ve never had an agent.

  7. “Even if the author reads it, she won’t understand it and neither will her agent.”

    This is the part that gets to me (actually it makes me rather froth at the mouth), that STILL time and time again you see advice–I saw it just a few days ago–that someone who has a contract offer from a publisher should get an AGENT to handle it. Agents no doubt have their uses but figuring out contracts? Hah!

    • If an author has gotten so far in the negotiating process for a book that he has a contract in hand, he certainly does NOT need an agent.

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  10. Publishers and agents have a lot of contempt for authors because most people want to be authors, not writers (See Dean’s article, Writer vs. Author http://www.deanwesleysmith.com/?p=6190 on the difference).

    • I’m not sure I agree with this.

      I think the reason they have contempt for writers (or authors) is because so many of them come across as desperate, as Ric said above. And let’s face it: the vast majority of people who claim they are writers and want to be authors (using Dean’s distinctions) just don’t have what it takes to be either one.

      The people here, the people reading and commenting on this post, are demonstrating that they have reasoning and writing skills. But we’ve all read crap at one time or another. (And likely we’ve also all written crap at one time or another.) Imagine the publishers and agents who have to sift through crap all day long every day. The whining wannabes that are emailing them and writing to them and faxing them and — heaven forbid — calling them on the phone. Of course they have contempt for us. In their minds we’re pains in the a**.

      But what’s even worse (for us) is that we’re expendable. Even when I turn down a book contract because I don’t like the terms, my publisher won’t have much trouble finding someone else willing to do the book on the same terms — or perhaps even worse ones. There are plenty of “writers” standing in line for a chance to become published. So why should publishers and agents really care about any one of us — especially those of us who are unproven — when there are so many people trying to their name on the few titles the publisher can put out in a year?

      This is the way it is. This is part of writing for a living. Get a toe hold, prove yourself better than the next guy, build relationships, deliver quality on time. Work for it. If you have what it takes, the contracts will come. If they respect you — and if you’re good, they will — you’ll get treated fairly.

      And don’t knock traditional print publishers and think that self publishing is the answer. It’s very unlikely that you’ll ever sell as many self-published books than a good publisher can sell for you. Each path has its pros and cons, each path is right for specific situations.

      • “It’s very unlikely that you’ll ever sell as many self-published books than a good publisher can sell for you.”

        Well, that depends. By the end of this year, one of my self-pubbed SHORT STORIES will outstrip sales of my debut novel (tradpubbed by a NY house). So – I think the likelihood of better sales is growing by the month. :)

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