Given the recent discussions the SWFA began about Hydra’s contract, including the fact that it lasts almost forever, here’s a reprise of a post PG wrote on the subject a couple of years ago:
One of the standard provisions in almost every type of business contract is one that is sometimes titled, “Term and Termination.”
The Term part says how long the contract will last. One year, three years, etc.
The Termination part provides for ways that one or both of the parties can end the contract before its term is complete. Termination can include provisions that allow a party to terminate if the other party violates a material provision of the contract or it may simply give one or both parties the option to end the contract after a notice of so many days.
In a typical business contract, these are ordinarily brief and very straightforward. Usually, there are no gotchas here.
When PG first started looking at publishing contracts, he was surprised at the absence of any short and sweet termination provisions and few had any set term. Often, the publisher could terminate the contract or simply let the book wither on the vine, but the idea that, if the book was published, an author could terminate a publishing contract after five or ten years was nowhere to be found.
A bit of internet research disclosed sample contracts or clauses or checklists on the websites of attorneys who regularly deal with publishing contracts that show the same thing – the author doesn’t get to terminate after a specific period of time. In fact, the author can never terminate unless the publisher goes bankrupt or allows the book to go out of print (lots of murkiness here).
Let’s remind everyone how long a copyright lasts in the United States. Generally speaking, a copyright lasts for the life of the author plus 70 years.
Passive Guy has dealt with many different types of contracts during his legal and business career, but never had one that lasted for 50 or 75 or 100 years or more. Real estate mortgages of 30 years were by far the longest contracts he saw.
PG would bet you could comb through the contracts files of most Fortune 500 companies without finding a 100 year contract. Why does a publisher need a 100 year contract for a book?
PG would also bet that if he spoke with an ancient publishing lawyer, that lawyer would tell him the tradition of life of the copyright terms for publishing contracts began before 1964, when the length of a copyright in the U.S. was 28 years. During that period, if anyone remembered to renew the copyright, it could be extended for another 28 years, otherwise it expired. 28 years is still a long time, but it’s not as weird as 100 years or longer.
100 years is not slavery, but it’s not right either. What the current publishing standard means is that a 21-year-old author who signs a book contract will have to live with that contract every day, every year, for the rest of her life. She may hate her publisher, but when she’s teetering about in her 90′s, she’ll still have that book contract strapped to her back.
The law provides statutes of limitations for nearly every sort of crime except murder. If I take a gun and rob a gas station when I’m 21, after 7 years or 10 years (statutes of limitations vary by state), I can’t be prosecuted for that crime even if I admit I’m the bad guy.
However, if I don’t commit a crime and instead sign a publishing contract, I’m never free of it again. There’s no statute of limitations on publishing contracts.
So, here’s Passive Guy’s modest proposal for upsetting the publishing apple cart – a maximum ten-year term for all publishing contracts.
If the publisher can’t cover its costs and make a reasonable profit within ten years, either the book or publisher are defective. The publisher and author can always come to an agreement to extend the publishing contract for longer if both parties really want to do so.
Oh, and ten years is probably more time than you would serve for armed robbery if it was your first offense.
PG would be remiss in his rabble-rousing if he ended his discussion with a frontal assault demanding a term for a publishing contract that was in the same universe as nearly every other class of business agreement.
It’s easy to focus on the dollar amount in such clauses and how they could guarantee a reliable stream of payments to an author. However, they also serve another important purpose. For 99.99% of books written, such a clause will cause a publishing contract to terminate well before the life of the author plus 70 years.