Contracts

Philip Pullman calls for UK to adopt EU plans to protect authors’ royalties

23 September 2016

From The Guardian:

His Dark Materials author Philip Pullman has welcomed a “badly need[ed]” new proposal from the European Commission that would protect authors who achieve unexpected success from missing out on royalties.

Pullman was speaking as president of the Society of Authors, which is pressing the UK government to adopt clauses from the new EU draft directive on the digital single market in order to “avoid unfair practices that currently prevent authors making a living from writing”. The Society highlighted the case of Horrid Henry author Francesca Simon, who has not received any royalties from the television and film adaptations of her Horrid Henry books, despite the series being broadcast in 44 countries with more than 1.5m DVDs sold.

In an article last December, Simon revealed that she was missing out on the royalties because when she sold Orion her first Horrid Henry book in 1993, the book deal included film and television rights. A deal with Novel Entertainment for those rights was subsequently negotiated by Orion. “They did a poor deal. They did not use a lawyer,” wrote Simon in the Author magazine. “Not understanding their proper value led to the worst mistake of my career.”

The new draft directive, released last week, states that authors “often have a weak bargaining position in their contractual relationships, when licensing their rights”, and that “transparency on the revenues generated by the use of their works or performances often remains limited”, with this affecting their remuneration.

It proposes two safeguards, which the Society of Authors says are particularly important for writers. The so-called “bestseller clause” would give authors the right to claim additional and appropriate remuneration if the returns in their contracts are disproportionately low compared to the subsequent profits from exploitation of the works. The transparency safeguard, meanwhile, would give writers a right to regular and adequate information on the exploitation of their works.

“I welcome this draft directive, especially for its emphasis on transparency and the bestseller clause. Authors badly need the sort of natural justice that these clauses embody, not least because our work contributes substantially to the wealth of the nation,” said Pullman. “I hope that our government will see the rightness of these proposals and embody them firmly in the law of our land to ensure that they continue when we leave the EU.”

“Publishers too often fail to give their authors full information on sales and exploitation of their work. Many more gain an unfair windfall when a work is an unexpected success but do not share any of that gain with authors. This unfairness leads to many authors no longer being able to make a living from writing and, if unchecked, threatens the creative excellence of our publishing industries,” she said.

Link to the rest at The Guardian and thanks to Nate for the tip.

PG is always in favor of authors being paid more, but this strikes him as strange and a little pathetic.

Why are UK authors so powerless? PG has known some good British lawyers and finds it difficult to believe they could not do an excellent job of protecting authors in contract negotiations.

PG is no expert on UK laws, but if the publishers are colluding, doesn’t the Competition Law provide a remedy for complaints?

Laws have their place, but they certainly have the potential to freeze a 2016 solution in place for many years to the detriment of new and useful business and technical developments. Plus, legislators and bureaucrats everywhere seem to be highly pervious to the lobbying of moneyed interests, including large publishers.

The Nine Worst Provisions in Your Publishing Contract

22 September 2016

PG is speaking at NINC’s Master Class Conference today and Saturday.

As a supplement to his presentations, today he has released a short ebook, titled The Nine Worst Provisions in Your Publishing Contract.

He wrote the book in a hurry, so he limited the number of provisions discussed to nine. Unfortunately, there are more.

It’s up on Amazon now. If you wait until tomorrow, the book will be on a three-day free promotion.

The Nine Worst Provisions in Your Publishing Contract

Since PG wrote the book in a hurry, he and Mrs. PG also proofed it in a hurry. If you see anything that needs to be corrected, PG would appreciate it if you let him know via the Contact page.

Harlequin Lawsuit’s Happy Ending

16 September 2016

From author Patricia McLinn:

Sitting in front of me is the settlement check I received from a class action lawsuit against Harlequin. Because this Harlequin lawsuit was settled out of court, there was no winner legally. That’s not how it feels. Not at all. Let me tell you, the authors won.

. . . .

In the spring of 2011 a group of authors, shepherded by Ginger Chambers and Barbara McMahon and with me part of the flock, hired Elaine English for a legal assessment of clauses governing ebook rights in various Harlequin contracts. Under contracts that spanned several years, ebook rights were lumped under “All Other Rights.” These contracts were written and signed before ebooks became truly commercially viable, but because of the length of Harlequin contracts they were still in force. The “All Other Rights” clause said Harlequin and the author split whatever monies came in from the exercise of these rights 50-50.

However, when books under those contracts eventually were digitized, it became quite clear the authors were getting way, way, way less than 50%.

What Harlequin did was say that our contracts were signed with Harlequin Switzerland, but the ebooks were published by Harlequin Toronto, and golly, gee, Harlequin Switzerland sold the rights to Harlequin Toronto for 6% of cover price. So Harlequin Toronto sent Switzerland 6%, Switzerland kept 3%, the author received 3% … and Harlequin Toronto kept all the rest. (BTW, this agreement between these Harlequins was created well after the contracts were signed. Authors were never informed about it.)

. . . .

A word about Harlequin contracts – they are essentially not negotiable, with extremely limited exceptions. You might be stunned at the major authors Harlequin could have kept if it had been willing to negotiate a bit. It chose instead to let those authors walk. You either accept the contract as Harlequin writes it or you don’t publish with Harlequin. (The latter became my choice around 2008.) They could do this because of the structure and business climate of publishing at that time.

I had a few excellent individual editors among the 34 I had for 25 books (yes, you read that right … editor turnover might lead some to suspect Harlequin didn’t treat many of its editors well, either), but my overall experience with Harlequin was … let’s say “not good.” By the end of 19 years with them I was disheartened, depressed, and done. I didn’t think I would write for publication ever again. I didn’t even want to try.

By 2011, however, I was back on track. I was publishing backlist books as an indie, I was writing again and publishing those originals as an indie. And, thanks to Harlequin’s machinations, I got a good jolt of indignation to return me to my feisty self. My reaction to what Harlequin was doing was summed up after reading one of their missives to authors that summer when I said aloud, “How stupid do you think I am?”

. . . .

David Wolf, bless his heart, took the case on as a potential class action lawsuit, which he and Michael Boni and John Sindoni of Boni & Zack, LLC, filed in July 2012. The lawsuit is Keiler v. Harlequin. The three named plaintiffs on whose behalf the suit was filed are authors Barbara Keiler (who writes asJudith Arnold), Linda Barrett, and Gay Wilson (who publishes as Gayle Wilson.)

Harlequin’s reaction? “This is the first we’ve heard of it.” That is what’s known in writing as A Big Fat Lie.

Remember, David Wolf had been talking to them for the better part of a year at that point.

The Harlequin lawsuit had plenty of twists and turns. It was completely dismissed at one point in 2013. The lawyers decided to appeal.  Mind you, they were Not Paid a Cent all this time. Once they started down the class action road it was all on contingency. (Yes, they’ve been paid out of the settlement now – getting nowhere near what they could have earned through ordinary billable hours for the years of work they put in on this.)

The appeals court upheld the most important element of the case in spring 2014 … and the next day, the sale of Harlequin to Harper Collins was announced. How would that affect things? We had no idea.

On top of that, the appeals court sent the case back to the same judge. Who hadn’t, to my unlegal eye, seemed to grasp much of anything about the issues. So how could we hope to fare better than the first time round with him?

Then that judge died unexpectedly as the result of a fall. I am not kidding you.

. . . .

The new judge took a different approach. In October 2014, the 1,200 authors affected by the contract clause were certified as a class. We were, truly, a class action lawsuit. There was champagne that day.

The work wasn’t over. There was discovery. There were depositions. Harlequin subpoenaed at least two authors groups, demanding from one all communication among its members. So much for privacy. It was an onerous effort for a volunteer-run organization to gather all the information and, as expected, it got Harlequin nowhere.

If I were writing this in a novel, I’d let the reader know that the big corporation had done it just because it could – to punish those upstart authors any way possible.

Finally, in June 2016, a settlement of the Harlequin lawsuit was announced.  While maintaining it never did anything wrong, Harlequin agreed to pay $4.1 million.

The settlement checks from the Harlequin lawsuit began arriving in authors’ mailboxes Monday, Sept. 12.

The checks are nice. Very nice.

. . . .

Most vividly, I remember tears from some of the communications from these authors. They were risking their livelihoods, but had to join the group because what Harlequin was doing was simply wrong. They had written for Harlequin for 30 years and felt betrayed and would never write for them again. They had just achieved their dream of selling their first book to Harlequin and they were scared, but this was too important to ignore. They were from all over the United States and Canada, from the U.K., Australia, and New Zealand. They couldn’t afford the $35 each of us put in to start, but would send me $5 a month until they had paid their share. They wrote a check for well over their share to help cover those who struggled to pay.

And the subgroup that first hired David Wolf became warriors. They collected, organized, and dug through contracts and correspondence. They taught themselves legal concepts. They searched corporate reports. They asked brilliant questions. They did what needed to be done.

Link to the rest at Patricia McLinn

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

PG can’t go into detail, but he will say that HQ is not the only publisher that is not living up to its contracts.

A Real Book Contract

1 September 2016

From Kristine Kathryn Rusch:

[O]ne of my readers forwarded me an article from Locus Online about Hachette suing one of their bestselling authors. It seems that for some reason, Seth Grahame-Smith did not turn in the second book of his contract with Grand Central for the follow-up book after Abraham Lincoln: Vampire Hunter.After two extensions of his deadline, and a threat from Grand Central, Grahame-Smith turned in something that Grand Central found terribly unacceptable. They claim he appropriated a 120-year-old manuscript as part of the book.

Considering Grahame-Smith also wrote Pride and Prejudice and Zombies, a book substantially based on a 203-year-old novel, I kinda had a yeah-so? reaction to the 120-year-old manuscript thing. So I went and read the lawsuit, and realized a few things.

First, the deal was made in 2010, before a lot of the major changes in traditional publishing occurred. The handwriting was on the wall, but back then, this Pride and Prejudice and Zombies thing was hot, so Grand Central ponied up a four-million-dollar advance, paid in $500,000 chunks.

Grahame-Smith received at least 1.5 million of those chunks, maybe as much as 2.5 million before the relationship soured.

Grand Central’s parent company Hachette is suing Grahame-Smith for $500,000, the advance on that second book of this contract.

Figure this: The publisher believes it’s better to sue the author than it is to leave that $500,000 outstanding. There are several reasons that Hachette could have made the decision to file suit.

For example, the time has long past for the second property to ever earn what the first properties did.

. . . .

By 2016, it’s really clear that Hachette will lose money on this second book. Better to file suit and ask for the $500,000 plus interest than it is to pay out an additional 1.5 million owed through the contract. Legal fees won’t equal that amount, even if the case makes it to court.

The case is a pretty standard breach-of-contract suit, and from my glance, it looks winnable for Hachette. Even if it’s not, the contract will be canceled, and Hachette won’t owe Grahame-Smith another dime.

It’s pretty much guaranteed that Hachette wouldn’t have accepted a manuscript from Grahame-Smith for any reason in 2016. Hachette was looking at a major financial loss on the second book in this contract.

Expect more of these kinds of suits in the future. If the writers who got huge advances do not meet their obligations with the publishers, the publishers will cut their losses and run as fast as they possibly can.

. . . .

I’m going to tell you a few things.

  1. This is an agent-negotiated contract. However, the agency that negotiated the contract is William Morris. I can tell you from experience that William Morris has lawyers on staff. In theory, those lawyers advise the agents. So, in theory, William Morris had lawyers who talked to Grand Centrals lawyers while negotiating this contract.
  2. I don’t care what entity negotiated for the writer. Whoever the hell it was did a piss-poor job. I have had better contracts for novels paying me $10,000 than this multimillion-dollar contract. I have to admit: I’m shocked by this contract. It’s a midlist writer contract (for a writer with no clout) dressed in million-dollar clothing.

I scanned, but I didn’t see anything I would expect in a multimillion dollar contract. No escalators. No protections for the writer. Low royalty rates. Bad discount clauses.

Half the stuff I listed as dealbreakers in this series are better than many of the terms in this contract.

. . . .

And then…and then…oh, my God, and then!

The agent clause (p. 19-20). It is the worst agent clause I have ever seen. Worse than the ones I warned you about. It has this lovely addition, which is new to me:

The provisions of this paragraph 25 shall survive the expiration of this Agreement and are specifically included for the benefit of the Agent which is hereby named as a third-party beneficiary.

Wow. Just—wow. Go back to the agent clause post I did, and scroll through the comments. See what the lawyers who responded said about the duties of agents and how these clauses are most likely illegal.

From one of the lawyers answering a question on the post: “Yes [the agent clause] is illegal. (1) “Agent” is a legal term for someone empowered to act on behalf of another person. (2) A conflict of interest occurs when a person acting as an agent benefits from the transaction. If a lawyer did this, the lawyer would be [disciplined]….”

. . . .

[R]ealize that this contract isn’t the worst I’ve seen, and it certainly isn’t the best. It’s a really crappy multimillion dollar contract—the author should have received protection from his representatives, but we all know how good that representation is. (Or, at least, you folks know if you’ve been reading my blog.)

Then realize that traditional publishing is not really giving these big advances any more. The big-advance books aren’t earning out. Which is why Hachette is cutting its losses here.

So your chance of getting this kind of advance is pretty slim. And even if you do, did you notice the lovely clause about promotion?

The Publisher shall have the sole discretion to determine what, if any, promotional services the Publisher may perform for the work…

(I added the bold for emphasis here and below.)

That’s clause 8(d) (p.14) and while there are other clauses that apply to promotion, the operative phrase here is “if any.” It means all those other clauses are wasted typing. If the publisher doesn’t want to promote these books, the publisher doesn’t have to. Ever.

. . . .

[T]here’s another scary clause that favors the publisher in this contract, a clause that I had never seen before. The royalty statements don’t have to be accurate. It says so right in the contract. It uses a phrase I’ve never seen in any contract before.

It says:

The Publisher shall render semi-annual statements of “estimated net sales” and net licensing revenues…

“Estimated net sales.” That’s new to me. The Publisher then defines “estimated net sales” as “sales less actual returns and less a reasonable reserve against returns of the Work…”

“Reasonable reserve” is not defined, and if the author wants to know what the publisher actually is withholding, the writer has to ask, in writing, for that information. The writer also has the right to audit the publisher—at the writer’s expense, of course.

Oh, and—there’s no cap on returns, and no time limit on the reserve.

I had the misfortune of mis-negotiating a reserve on returns twenty years ago on a work-for-hire project. I still get royalty statements—on a book published in 1995—in which reserve against returns continue to be withheld. Even now! Twenty-one years later.

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 will note that the lawyers on staff for the William Morris Agency work for William Morris, not the author. William Morris lawyers were likely the ones who crafted the agency clauses that Kris rightly criticized as totally unfair to the author.

PG was not and is not involved with this matter in any way. Looking from the outside, he wonders if counsel for the author is considering a suit against William Morris for failure to properly advise the person who was supposed to be their client.

Hachette Sues Seth Grahame-Smith

29 August 2016

From Locus:

Seth Grahame-Smith, author of Pride and Prejudice and Zombies and Unholy Night (among other titles), is being sued by Hachette Book Group for breach of contract. The publisher is suing to recover the $500,000 (plus interest) they paid for a book they allege the author never delivered.

Hachette and Grahame-Smith made a $4 million deal for two new books following 2010’s Abraham Lincoln: Vampire Hunter, with $1 million paid on signing: $500,000 for each book. They published Grahame-Smith’sThe Last American Vampire in 2015, but despite offering extensions on the second book’s deadline, it never arrived.

Link to the rest at Locus and thanks to Kris for the tip.

Following is a copy of the Complaint with a copy of the publishing agreement as Exhibit A.

PG was not involved in the negotiation of the publishing agreement, but will observe it contains some provisions detrimental to the author that PG typically recommends be removed or modified.

 


Canelo searches for descendants of forgotten crime author

23 August 2016

From The Bookseller:

Canelo imprint Abandoned Bookshop is on a quest to locate the surviving relatives of crime author Clifton Robbins as it prepares to republish two of his books which have been out of print for over 80 years.

First published with “huge success” in the early 1930s by Ernest Benn, but unavailable since then, Dusty Death and The Man Without a Face are the first of five novels by Clifton Robbins featuring Clay Harrison, a London barrister-turned-detective, and his clerk, Henry.

According to the publisher “little is known” about Robbins. He appears to have been born in 1890, in London, studied at Cambridge and worked as a journalist. He wrote nine novels between 1931 and 1940, but none of the books were ever reprinted and he had nothing published after that date. Some records suggest Robbins died in 1944, others in 1964, but “numerous enquiries, requests and years of research have yet to reveal any living descendants,” the publisher said.

. . . .

Pack said all royalties from sales of the books will be kept aside in the hope that a relative of Clifton Robbins will come forward to claim them.

Link to the rest at The Bookseller

PG makes no claims to expertise in the history of UK copyright law, but he understands that, since The Copyright Act of 1911, copyright extends for at least the life of the author plus 50 years. In 1995, the term was extended to the life of the author plus 70 years for all works that were subject to copyright protection at that time.

Thus, if Mr. Robbins died in 1944, absent UK copyright twists of which PG is unaware, his books would appear to be out of copyright. However, if Mr. Robbins died in 1964, they would appear to still be under copyright protection, assuming the author, or author’s original publisher, did whatever was required to protect his books under UK copyright law.

PG will caution that there may be facts not included in the OP that would impact the presence or absence of copyright protection for Mr. Robbins’ books. PG will appreciate any comments from those who know more about UK copyright law than he does.

Agent Agreements

22 August 2016

From Kristine Kathryn Rusch:

We’re almost to the end of the contracts/dealbreakers series. I can’t tell you how pleased I am about this, because I feel dirty just looking at some of these contracts and agreements.

Most of you indie writers tuned this series out long ago, because you believed it didn’t apply to you. And yet, I read all the time about indie writers who sign with an agent to sell the print versions of an ebook and to sell foreign rights and auxiliary rights.

Bad move. Really, really, really bad move.

First, you’re signing traditional publishing contracts if you sell your paper book rights. You’re also signing traditional publishing contracts if you sell foreign rights. And I’m not even going into Hollywood options or movie deals or TV deals—

. . . .

Think about that for a moment: this writer hired an agent to represent all rights in the book, including movie and TV rights, and the agent had the writer sign a shopping agreement with a third party. Right there, that’s suspect. Because the agent should already have representatives from the agency (or a partner company) shopping the property.

This shopping agreement had no termination date, allowed the third party to shop the book to anyone who might make a film, a game, anything that moved, in technology developed or not yet developed, in territories around the world and the universe in perpetuity. For the duration of the agreement, the third party and the agent controlled all of those subsidiary rights in the project.

And the kicker? No money exchanged hands. The writer lost control of all subsidiary rights in her book project for no money and no reason, in perpetuity. All because her agent told her to sign the damn agreement. And the writer did.

And then she sent it to us as an example of the agent doing a good job.

. . . .

At first glance, these agent agreements, as they’re called, seem pretty benign. Most are no more than 3 pages long, and seem to be written in English. In fact, most of them are written in chatty language, usually in the form of a “letter,” so the writer thinks they’re signing something informal, when really, they’re signing a contract.

The worst one I’ve seen comes from a huge, very famous agency, whose chairman (and lead agent) apparently figured he could save money on legal fees, and cobbled an agreement together himself.

It looked like it was made of spit and glue, and had many unenforceable clauses. I’m sure it’s been revised since by lawyers, because I know two writers who challenged the thing in court.

But the version I have gave the agency 15% of the copyright in every project the agency represented. It said so flat out in the agreement. (I’m sure the updated version says the same thing, as well. I’m sure it says all the same things, except in better legalese.)

The agency also decided to cover its tushy by adding some version of this:

The writer agrees to follow any agent clause in a publishing contract to the letter.

In other words, that agent clause in your traditional publishing contract, the clause we discussed last week, the clause stuffed full of things that benefit the agent? Well, if you had no agreement like this with your agent, that clause is toothless.

If you have an agreement saying you will abide by the clause in that traditional publishing contract, then suddenly the clause has teeth. And so does every version of that clause you signed from the beginning of your relationship with the agent.

. . . .

The agreement I have before me, from a long-time agency, founded by one of the big name agents of the mid-20th century, has an agency agreement that looks like the chatty letter-type agreements I saw in the 1980s.

Until you read it.

And then you find clauses like this (the emphasis in bold is mine):

You hereby irrevocably assign to us and we shall be entitled to retain a sum equal to fifteen (15%) percent of all gross monies and other considerations paid to you or on your behalf with respect to any and all contracts negotiated and concluded under the terms of this agreement…

Well, you can delete the word “irrevocably” and the clause isn’t that bad, right? If they negotiated something, then they’re entitled to their percentage, right?

Um, the clause doesn’t stand by itself. Combine it with this baby:

This agreement is effective immediately and continues in effect until terminated by either party…We will continue to function as your agent and to receive our commission on all contracts negotiated and concluded during the term of this agreement, or within six (6) months following termination, if negotiations were commenced during the term hereof, and any modifications, replacements, extensions, and supplements of such contracts regardless of when made or by whom negotiated or when payments were received

So imagine this: you fire the agency because they screwed up your negotiation. Say, maybe, they tried to give a free option to a big name actor, or something stupid like that.

You do the negotiating yourself on the deal (with a lawyer back-stopping you), get a movie option for six figures, that’s then made into a film for seven figures, plus the book the movie is founded on stays in print, and becomes a bestseller, and you renegotiate the contract and, according to this stupid agreement, you still have to pay the f***-up agent her 15%. The agent you fired because she was bad at negotiating.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

The Agent Clause

15 August 2016

From Kristine Kathryn Rusch:

So, you decided, even after last week’s post, that you need an agent. Maybe you were one of the people who found a way to dismiss the post because of my hyperbole in the beginning, figuring I don’t know what I’m talking about. Sure, sure, your agent would never do such things. Ever, ever, ever.

. . . .

[I]n case you’ve forgotten it, you hired that agent. They work for you. (In theory. Generally, in practice, their interests align with the publishing company, but that’s another blog.)

So what this means is that you have or you will sign contracts with your publishers that reference your agent. And you will sign an agreement with your agent, creating a document that governs your relationship with them.

Writers rely on their agents to negotiate contracts, which means that agents will negotiate things into those book contracts that benefit the agent.

. . . .

Because writers who rely on their agents to negotiate book contracts generally sign agreements with the agent or the agency which the agent is attached to without negotiating that agent agreement at all.

. . . .

This week, let’s deal with the clause that agents insert into your book contract with your publisher.

. . . .

Agents have been abusing this clause for years now. Agents, not publishers, even though this clause is in a publishing contract between the writer and her publisher.

Once upon a time, publishers paid the writer directly and the writer paid the agent. Which is, frankly, how it should be. After all, the agent is someone you hired, not the publisher.

However, some brainy publisher got the idea that if Agent A has 20 clients with the publishing house, it’s easier to write one check to Agent A than it is to write 20 checks to the writers. Agents liked this because that meant they didn’t have to browbeat their writers to get the commission.

If the contract is between the publisher and the writer, the publisher cannot just pay the agent. That’s illegal. The author can’t just say, “Oh, pay my agent,” because that’s not legally binding.

If the author wanted to the publisher to pay the agent directly, it had to say so in the writer-publisher contract. So some lawyer came up with the way to do this. That was the origin of the agent clause, which was, in reality, a payment clause.

Back when this started, the clause looked like this:

The Author hereby authorizes the Author’s agent, Agent A, to collect and receive all sums of money payable to the Author pursuant to any of the provisions of this Agreement.

And that’s it. That’s all. Really simple, right?

The net effect was this:

Checks sent to Agent A (at such-and-so address) counted as payment to Writer Z, and thus fulfilled the contract. That’s all. If the writer signed the contract, then the clause became activated, and all payments went to Agent A.

The problem with this is, if you fire Agent A, you need an addendum to the contract, so that payment would go either directly to you or to Agent B, who is now your representative.

Well, that might screw Agent A out of money that you might owe him. So the agent started adding words like “irrevocable” to the agent clause which, of course, he negotiated with the book publisher.

Then things went crazy. Agents started adding all kinds of things to the agent clause which are in the agent’s interest, but no one else’s. The agent would add things like “the agent represents the author on this book, and all foreign sales of this book” and so on.

. . . .

I’m not assigning anyone anything “irrevocably”—certainly not someone I can fire for cause. Especially if my money goes through their account first. I will not “fully empower” anyone to act for me.

(Some agents go so far as demanding legal power of attorney—which is something you should never give anyone. What that means is that they then have the right to be you in all legal matters. No. Do not give legal power of attorney to anyone without good cause—like you’re dying and need someone to handle your accounts [and even then, it might not be a good idea].)

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

Protecting Your Content and Your Name

29 July 2016

From Kristine Kathryn Rusch:

Back when I was writing a lot of tie-in novels for Pocket Books’ Star Trek division, a brand-new editor asked me to help him rescue a short story anthology. It seems that the main writer on the project had quite unexpectedly. The writer had outlined the story, and the outline had been approved by Paramount, which was a major hurdle. What the editor needed from me was an actual draft of the story.

In other words, none of the characters were mine. The plot, setting, and theme were not mine. The editor needed my style as a writer and my name on the cover. That was it.

I had never worked with this editor before. My usual Star Trek editor advised me to stay clear. But, I figured, it was just a short story. What could it hurt?

Well…it didn’t exactly hurt. But it was perplexing. I wrote the 6,000 word story as requested from a 2,000 word outline. Turned the story in on time. Got an acceptance, and the ridiculously high acceptance payment.

Then I got the copyedit.

Which wasn’t a copyedit. The editor himself had rewritten every single sentence of the story. Every single one. Sometimes adding passive voice. Sometimes making the meaning unclear. Always dumbing down the content and the voice and the point of each sentence, let alone each paragraph.

I looked at that, glanced at my contract, and realized that even though this short story was written as work made for hire, I could make a huge stink about this. I could pull my name or pull the story or cause all kinds of grief.

In the end, I decided to leave it alone. If you look up this short story now, you’ll see the most poorly written thing ever published under my name.

. . . .

That is the only time in my recollection that I can recall allowing an editor’s or copyeditor’s full rewrite of my work to get into print. I’ve had worse rewrites in my career, including a copyeditor who changed every single piece of punctuation in one of my romance novels, but I never let those go through under my name.

I cited contract terms, refusing to allow the changes. I pulled books from publishers because of shenanigans like this. I got copyeditors fired. Repeatedly.

I defend what I write. My writing in some story or novel or nonfiction article might be awful, but it’s mine. If I put my name on it, guaranteed—except for that one short story—every word in the piece is a word I wrote or approved. Every single one.

. . . .

I told you that most writers check their traditional book contracts for the advance, the payout, and the due dates. They don’t look at anything else. Writer after writer, and editor after editor, have told me this.

I always look toward the editing clauses first. Because if they’re ugly, the rest of the contract usually is as well.

This applies to all kinds of writing for traditional markets, especially for nonfiction and short fiction. I’ve seen terrible editing clauses in those contracts, and what’s ironic is that those clauses often seem to be the most innocuous.

What you want is complete control of the content of your work. In every single short fiction contract I sign, I change the publisher’s right to “edit the Work” to “copyedit the Work.” I always add a line that ensures I must approve any changes, including those copyedits, to the Work.

If I don’t like the copyedit, my version stands. If my version isn’t going to stand, then the story doesn’t get published. Period, end of story.

. . . .

The British publishing company has the right—if the publisher deems that right necessary—to completely rewrite my article. They could change everything. They could add stuff I find objectionable—political points of view, for example. They could libel someone through careless writing or even deliberately. They could take a piece in which I say I love something, and change it to say I hate it.

They can do all of that, because I would have signed that right away. Then I would have waived my right to remove my name as the author of the piece. So they could write all this stuff, and claim I meant it, because my name is on it.

. . . .

Oh, and one that drives me as batty as the editing clauses: they have the right to my name. Not just to use my name in publicity. I “empowered” them to use my name in any situation they “considered necessary.”

My name.

I see this clause a lot. Writers give up the right to their own names to a corporation for a few thousand dollars and the publication of a novel.

. . . .

She wrote back, refusing to change the editing clause, and then said this:

I’m afraid the moral rights clause is not one that I am able to make any alterations to. It is a standard clause across all of our contracts and our lawyers will not accept changes to it. As you say, this is a clause that relies somewhat on trust; I can only assure you that we will not act unreasonably, as it would not be in our interest to do so….

I kid you not. She wrote “Trust us. We won’t hurt you.”

. . . .

Make sure the editing clauses in your contracts—from short story contracts to article contracts to novel contracts—limit what the publisher can do to your work. You essentially should allow them to change some things to house style (like whether or not you put a capital after a colon). You should have the right to review a copyedit—and to have the final say on that copyedit.

You also need a clause that limits revisions. When there’s a clause in the contract that says that the finished book must be “accepted” by the Publisher, then you have to define what that means. If it means revisions, then those revisions should be limited to no more than two or three before the contract terminates.

I’ve known writers who rewrote their books for years before the books finally were tossed back as unacceptable by the publisher. One author I know rewrote her book every year for ten years for a textbook publishing house I worked for. When my boss left, and the next editor took his place, that editor saw this continual revision, and canceled the contract. the writer had to repay her entire advance.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

Regarding responses such as our lawyers will not accept changes [to a standard contract provision], PG says that the lawyers work for the publisher, not the other way around.

If a publisher tells its lawyer to modify a contract provision to reflect a request from an author, the lawyer will do so. The lawyer may advise the publisher not to make the change for this or that reason, but if the publisher instructs the lawyer to make the change anyway, the change will be made.

Reserve, Rinse, Repeat

28 July 2016

From Brillig:

Here is a letter which I am sending today to the CEO of one of the major publishing conglomerates.  All authors and agents should feel free to copy and paste, put in appropriate specific details, and do the same.

Once upon a time, the reserve against returns was kind of necessary.  Books only sold in print.  All those print books were fully returnable.  Sometimes 70% of the copies were returned.

But now, books sell digitally, with very few returns on ebooks and downloadable audio.  Printed books are still fully returnable, but for a great many books, sales through channels that lend themselves to especially high return rates have dwindled.  I’m not saying reserves are entirely unnecessary.  I’m saying it’s time to push back on doing things this way because they’ve always been done this way, accepting reserves in any quantity when they no longer serve their original and intended purpose.

There are too many business practices tilting against authors, and we can’t continue to accept all of them.

Dear CEO:

I hate arguing about pennies, but I also don’t understand why publishers want to keep pennies from my authors for no reason, holding reserves on titles where none is necessary.

I’m attaching the summary page of the just-received royalty statement for [book by my client] by [client name], as the quintessential example of this.

Please notice the book earned $1750 in ebook royalties.

So how can you justify the 92 copy reserve on the trade paperback?

The trade paperback royalty per US copy is $1.20.  If the ebook royalties were to drop by half on [book by my client], [you] would still have $875 to credit to the author’s royalty account on the next royalty report.  That is a sufficient reserve to cover the return of 730 trade paperback copies. The actual returns on the trade paperback were 46 copies.

This isn’t reasonable.  It’s time for your contracts to acknowledge that, and to renounce the right to hold reserves against returns when ebook income can reasonably be expected to cover print returns, as is clearly and abundantly the case on this royalty report, and on so many others.

Link to the rest at Brillig

Next Page »