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.
. . . .
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.
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.