From Kristine Kathryn Rusch:
Because of this blog, I see a lot of publishing contracts. People want advice on certain clauses. I tell folks that I can’t give legal advice because I’m not a lawyer, but I will look at the contract and tell them if they need to hire a lawyer to negotiate it. Most of the time (99.9% of the time), they need that lawyer, and I will help them find a lawyer if need be.
What do I get out of this? I get to see the changes in publishing contracts, what’s being offered to new (and experienced) writers, what scams are hitting, and what to watch out for.
. . . .
If you hire a lawyer to look at your contract, and ask the lawyer to explain the contract to you, then ask the lawyer for advice on whether or not you should sign it, the lawyer will do that. But if you hire the lawyer to negotiate, the lawyer will negotiate as best he can. He might improve the contract, but in these cases, improvement moves you from the seventh circle of hell to the sixth circle of hell. And that’s all.
When faced with those contracts, I feel awful, because all I see is the massive catastrophe the poor naïve writer is heading toward two to five years down the road. The worst case scenario for these writers is success. They will make no money and their work (and sometimes their future work and/or name) will be owned, for all intents and purposes, by the publishing company.
I hate it when that happens. When I see it happen—as I did twice this summer—I cringe. Because I know what just occurred. I’ve watched very smart writers get hooked in their dreams. These writers will agree to anything—and I mean anything—to be legitimized by traditional publishing. These writers have long dreamed of being published by a great house or a great imprint, working with a great editor, and then seeing the finished product in their favorite bookstore.
And to achieve that dream, they’ll throw their copyrights, their future, everything under the proverbial bus.
. . . .
Back when traditional publishing was a monopoly, back when there were a large number of independent booksellers, back when there were a handful of chains and traditional publishers did not hate those chains, computing the list was pretty easy. The bookstores reported their sales and the Times used them to figure out the list.
In the 1990s, when I started paying attention to the way the list was compiled, the Times had a list of “accepted booksellers” so that it tweaked its list to reflect “accepted” tastes. The traditional publishers complained that a sale in the chains counted for less, and the Times responded by saying they used a “calculation” (which they still do), so that the lists don’t weigh big, hated firms where most readers buy too heavily. The Times list is an imprint of quality, after all, and when quality gets “compromised,” the Times monkeys with the list.
First the Times got rid of the influence of chains, by counting their sales as a percentage. Then the Times separated the mass market from the trade paperback list because “quality” fiction was published in trade paperback, while crap was published in mass market (along with the quality). Then, when Harry Potter dominated the list, the Times spun off a children’s list which I see now has devolved into four parts: picture books, Middle Grade, Young Adult, and series.
After much complaint, the Times developed an e-book list, but ignored indie published titles. When there was even more complaint, it added the indie published titles, but gave Amazon a percentage of sales rather than actual sales (even though it publishes the most e-books of any US venue).
In other words, the list is rigged. It has been rigged for decades, and it’ll stay rigged.
. . . .
[M]easurements like the New York Times list are meaningless in 2013.
. . . .
What matters now is readership, and that’s become harder and harder to measure, except with something that an author can now keep to herself, just like Amazon does: I can see actual sales and count those sales without going through some publisher’s weird-ass algorithm every six months. I don’t have to worry about incorrect reporting or reserves against returns.
I’m seeing real sales in real time.
. . . .
[B]estseller lists are just another way to inform readers that books exist.
Link to the rest at Kristine Kathryn Rusch
Passive Guy will note that, whether asked or not, he regularly recommends that author/clients not sign particular contracts, explaining in detail his reasons for the recommendation. The most common reason that authors don’t follow his advice is that, after a detailed explanation and discussion of the risks in signing a contract, the authors are willing to accept the risks PG has described.
This is a client decision and not a lawyer decision. After many years of representing all sorts of clients, PG has come to realize that sometimes others are willing to take risks he is not willing to take and sometimes he would be willing to take risks that others wouldn’t. There are good contracts and bad contracts but not necessarily one-size-fits-all contracts that address the risk-sensitivity of everyone.
One other thing that PG has come to realize is that publishers aren’t very good at negotiating contracts with authors.
For a bit of context, over many years, PG has negotiated contracts with some of the largest companies in the world. The ones he can talk about include Apple, Microsoft, Intel, Oracle, Disney, Goldman Sachs, JP Morgan and Bank of America. There are many more of similar prominence.
He still does this. Within the past month, he negotiated a contract for a non-author client with a large retailer whose name any American and most international visitors to The Passive Voice would instantly recognize.
This doesn’t maker him smarter than anybody else, but it has given him a lot of experience negotiating deals with successful business organizations.
PG won’t bore you with details but typically these organizations employ very skilled counsel and the negotiation process follows a reasonably predictable path. After a couple of calls and draft contract exchanges, PG can give his client a pretty good idea of which deal points are doable and which are not and whether any deal-killer provisions can be resolved.
When dealing with authors, publishers large and small don’t follow negotiation processes that are standard operating procedures everywhere else in American business, at least where PG has wandered. PG suspects this is because they’ve become accustomed to authors who will sign anything the publisher puts under their noses.
Generally speaking, negotiation is a process by which two (or sometimes more) parties determine whether they’re going to be able to make a deal. The process involves give and take on both sides. During the give and take, each party typically explains why a particular contract provision is important to it and why it’s reasonable for the other party to accept it. Each side does a lot of persuading of the other side that the final agreement will be a good one for everybody.
It’s not always wine and roses. Sometimes bluff, bluster and anger, real or feigned, come into play, but smart negotiators will virtually always let the other side know that they understand the other side’s concerns even if they can’t agree with the other side’s proposals.
Quite often, publishers don’t do these standard sorts of things that are designed to make deals happen and seem surprised that authors or authors’ lawyers would bother to suggest changes to even the most egregious contract provisions.
As many of you will have already concluded, this is one more characteristic of a relative power position between author and publisher that has been disrupted by self-publishing. Presented with a take it or leave it proposition, more authors are leaving traditional publishing contracts unsigned.
Even more worrying for publishers, more authors are not even asking to see a publishing contract in the first place.
One of the many survival questions smart publishers should be thinking about is how they can become more attractive partners for authors. It’s not all about the size of the advance.
From his contract-geek viewpoint, PG suggests that a major rewrite of publishing contracts to directly address the legitimate concerns that Kris and others raise would be one way to be a better partner. Draft contracts that an author can understand. Get rid of all the stupid gotcha provisions that are more about power than they are about partnership.