Indie Contracts

29 January 2016

From Kristine Kathryn Rusch:

Boy, I’ve been seeing a lot of crappy contracts lately, and not at all from the place I would have expected. I expect bad clauses in traditional publishing contracts. Too many writers don’t hire intellectual property attorneys to vet those contracts, relying instead on agents, and that leads to all kinds of terrible book contracts. If you want to see what some of those are, look up the contract posts here  or pick up a copy of Deal Breakers 2013 (or wait for the new version).

However, the bad contracts I’ve been seeing these last few months don’t come from traditional publishers—directly, anyway. They come from indie writers and brand-new small press publishers. And these contracts aren’t just bad, they’re often worse than traditional publishing contracts.

The motives behind the contracts are different. Traditional publishers are trying to see how much they can get from ignorant writers with complicit agents. Indie writers/small press publishers are just as ignorant as those traditionally published writers, but the indie writers/small press publishers believe they’re on the side of the angels.

They’re not because they’re making huge mistakes.

. . . .

The bump in the road [for Newbie Publishers and Newbie Editors that run them] that I hadn’t expected were the contracts. Most of the readers who support these new projects never see the contracts between the publisher and the writer. That’s one of those arcane little details that matter only to the publisher and writer.

Unfortunately, this is an area where Newbie Editor and his publisher violate their own ideals. Usually, Newbie Editor was (once upon a time) a traditionally published writer. The publishing company is often owned by Newbie Editor.

And Newbie Editor is just like any other traditional writer: he never hired an IP attorney to vet his book contracts. He let his agent do it. Newbie Editor never negotiated his own short story contracts either, so he has no idea what the good or bad clauses are. In fact, Newbie Editor knows nothing about copyright or contracts—and it shows.

. . . .

Newbie Editor sends a contract to Short Story Writer. Most short story writers are happy to make that sale. They sign the contract and send back without a second thought.

But people who read my blog and/or who have been my students know better than to do that. They actually read the contract.

And what they find is that the contract is a nightmare.

Most of the contracts I’m seeing from Newbie Editors and new online magazines make no sense. I mean it. They contradict themselves on every page. Sometimes they ask for things they don’t need while ignoring things they do.

The most egregious contract I saw was just a few weeks ago. Some idiot publisher/editor had changed the language in his very bad traditional book contract to be a short story contract. This ten-page short story contract (not kidding) including right of first refusal of the poor author’s next short story! And a non-compete. And all the other horrid things we’ve been discussing about traditional publishing contracts.

That contract at least made sense. I could see exactly what that idiot publisher/editor had done. She had modified an existing document by using a global search & replace, substituting the word “book” for the words “short story.” Apparently the idiot publisher/editor thought that was what she needed to buy a 3,000 word short story.

Sigh.

. . . .

But most of these newbie editor/publishers take clauses at random from every contract they’ve received in their publishing careers. The contract have boilerplate traditional publishing language that refers to other parts of a contract that aren’t there. It’ll ask for North American Rights and then say that the story will be on sale around the world in all languages. It’ll claim that the contract is for non-exclusive rights, but the writer can’t sell or publish the story without the publishers permission.

And on and on and on.

In other words, these newbie editors and publishers are too damn cheap to hire an IP Attorney to develop a valid publishing contract. Just like these people were probably too cheap to hire an IP attorney when they got their own book contracts.

I’ve received some of these cobbled-together contracts myself. I’ve worked with the editor/publisher to devise a fair contract for me, although in one or two instances, I just walked away. The handwriting was on the wall that the project was going to be a disaster, and lo and behold, it always ended up being one.

The flip side of the cobbled-together indie contract is the draconian one. Some of these new companies have hired some young, cheap attorney to develop the company’s contract. Often that attorney is the friend of a friend, and not an IP attorney at all.

Those contracts don’t just want the writer’s firstborn child, they want everything the writer owns in perpetuity. They’re terrifyingly nasty, the kind of contract that makes a traditional publishing contract seem nice and cuddly.

Writers are signing these contracts because writers are mostly ignorant about legal things. And as long as the original newbie editor/publisher is in place, the writer will probably be okay. After all, the contract was born in ignorance, so it will to live in ignorance. No one will notice how horrid the clauses are. No one will ever exercise them.

But should the project become a success, and should someone with half a brain decide to buy out the editor/publisher on the project, that new someone might actually enforce the contract clauses.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like an author’s post, you can show your appreciation by checking out their books.

PG says it always costs less in legal fees to fix a contract (or walk away) before you sign a contract than it is to deal with it afterwards.

Contracts, Kristine Kathryn Rusch, The Business of Writing

15 Comments to “Indie Contracts”

  1. Monkey see. Monkey do. Monkey doo-doo.

  2. There’s also the self-justification factor. “I need section XYZ in the contract because I’m just a small publisher starting out and need to compete against the big ones.”

    Or, “I’ll never use that(unless I’m really mad) so it’s okay with me unlike others.”

  3. Oftentimes the royalties are enough to turn you off.

    Arcadia Publishing contacted me and offered me a deal that had them getting 90% royalties on a book that I’d have to put all the expenses into myself. No thanks.

  4. Just as with the plumber, “you can pay me now or pay me later.”

  5. I remember from the long ago, before Amazon and Kindle, reading many blogs and books by agents. They all mentioned authors who actually read contracts and expected changes as being ignorant about publishing and naive to think anything could be negotiated, except advances and royalty rates, maybe (but only if you had an agent to do it for you).

    Their reasoning was that these clauses were in all contracts but were rarely, if ever enforced. It was just the way publishing worked and had worked forever. Publishing was different! You couldn’t expect a contract to work the same way as it did in other businesses! Basically trust the publisher, trust the agent, or don’t get published, because you were being an annoying writer, and if you annoy one agent or editor you were annoying all of them. (They talk to each other you know).

    • I always assume the worst and imagine my life if every clause in a contract WAS enforced. Many years ago I had a contract with a reputable Aussie publisher. Changed half the clauses myself (no agent then) and zapped a few I didn’t want to live with, such as all the “at the author’s expense”, the first words to go. Signed and sent. They signed and sent back. The editor was a favorite of mine, pleasant and professional to work with. Trouble was, he retired midway through the process. Incoming editor was a pain in…well everywhere you can have a pain. Wanted everything I’d dropped from the contract. I suggested he actually read it, then we could talk, even tried to be reasonable, supplying some illustrations I wasn’t obligated to do. When he persisted, I asked him to send the MSS back and I’d walk away. Suddenly someone higher-up took over and made everything nice. Book is still out there. But had I let the contract go through as written, I’d have been the one in the monkey doo-doo.

    • @ Lydia

      Bwahahaha… And we all know how that turned out, don’t we? 🙂

  6. I remember a writing contract by Disney a couple of years back. They called for writers to submit stories and, according to a clause in the contract, mere submission gave Disney all and perpetual rights to the *submitted* stories (not just the selected stories), without any compensation to the writers. I told an acquaintance this was unacceptable and they were more concerned about the prestige of being associated with Disney and said, “Oh, it’s only a clause, it’ll never be enforced.”

  7. Contracts. The words in them mean something. I often find that people don’t understand that.

    Odd.

    • Though to be fair, a fair number of folks deny that words themselves mean things and love to redefine terms at will and contradict themselves mid-conversation while insisting that’s what you, yourself, are doing, while also telling you what you “really” mean…and if you are that type of person or are a victim of that type of person and don’t realize it, then I’d say it’s more ignorance (willing or unwilling) than lack of understanding. [shrug]

  8. I’ve dealt with contracts for my genealogy column. I signed the initial contract ten years ago because it looked good. About five years later, the editor sent me another to sign. Signing it meant the first contract–which had better terms–would be void.

    This new contract was horrible. They wanted rights to do what they wanted with my columns, and if I wanted to republish them, I’d have to ask permission. It didn’t take genius to figure that out.

    I ignored the contract and didn’t say anything. Two years later, they sent another contract for me to sign. I ignored that too. I’m still writing for them under the same terms as my original contract, and I have retained my rights to what I want with my column.

    I’ve never dealt with a traditional contract, but I’ve heard horror stories. Enough to make me stay self-published.

  9. I have a non-traditional publisher who has done four books for me. The first two had a pretty open contract that allowed me to get my rights back whenever I wanted them (I know, right?) One of the *author’s* had a husband who was an attorney who saw that the contract wasn’t awesome for the publisher or doing what they intended it to do, so he rewrote it with no way to get your rights back, ever, unless the publisher feels magnanimous.

    When my next book came out I told they I needed them to include a date after which I could request my rights back, or I wasn’t signing. They talked it over and gave me the clause. New authors with them haven’t asked for these changes. I get that they are excited to be with a publisher, but someday I’m going to take those rights back so I can do something different with them, and the other authors won’t have that option. That’s fine as long as the current publisher stays in charge–but what happens if he dies in a plane crash (he’s a commercial pilot) and his cousin Vinny takes over? Yeah, no thanks.

  10. I suspect we have a lot of new authors who have extensive business experience and have worked with contracts in other industries. It’s difficult to imagine them accepting the terms in a typical publishing contract. That’s why God made KDP.

Sorry, the comment form is closed at this time.