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.
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.
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.
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.