Kristine Kathryn Rusch

Other Evil Clauses

22 July 2016

From Kristine Kathryn Rusch:

Writers tend to go through their business life like Pokémon Go players, looking for something that isn’t there, hoping to score a magic number of points, and not seeing what is there.

It’s impossible to show you all the bad contract terms. I’ve delineated several that you need to watch out for. I’m going to go through some important ones quickly in this blog post, and then look at a few more major terms in the next few weeks before we go to agents and attorneys.

After that, folks, you’re on your own.

. . . .

Definitions: Make sure all of the important and dicey terms in your contract come with an attached definition. And make sure that definition is in your favor, extremely clear, and very narrow. The biggest and most important definition in modern contracts is the definition of the word “net.”

Most contracts leave out the definition of the word “net” altogether. Those contracts assume, apparently, that we all agree on what the word means.

Here’s the thing about contracts, folks. Contracts create their own language and their own definitions. So if the word “net” is undefined, it means whatever someone wants it to mean.

If the publisher does define the word “net,” the publisher often does so in a way that benefits them. (Horrors! They don’t do that in other things…oh, wait, never mind.)

Publishers have moved to “net” in royalty payments at the same time as the rise in ebooks. But that’s not why publishers did it. They did it for the same reason that they have discount clauses in the contract, such as the ones we discussed in last week’s blog, to make sure the writer gets almost no money for the books the publisher sells.

If the publishing contracts end up defining the word “net,” then the clause usually looks something like this:

As used herein, the term “Net Receipts” means monies received by the Publisher on the sale or license of the Work after all discounts, fees, and returned copies have been deducted, and before addition of freight charges and/or handling charges.

It’s all very, very loosy-goosy. Monies received by the Publisher. I suppose you can audit for that, but there’s lots of room for dispute in that language. And lots of room for abuse.

. . . .

Basket Accounting: speaking of screwing the writer, let’s look at this old favorite, that has existed since the 1970s. Basket accounting refers to the fact that the publisher throws all of the books in one contract into the same “basket” before paying out royalties.

So if you have a three-book contract, and book one sells 5 times its advance, but books two and three never earn out, you probably won’t see a dime in royalties.

If each book were accounted separately, then you’d receive royalties for book one, making you significantly more money.

The clause is not called the “basket accounting” clause. Every contract does it differently.

And I have to tell you: in this modern world, it’s a lot more probable that you’ll get a basket accounting deal if you have a multiple book deal with a publisher. That publisher will guarantee that you don’t see a dime in royalties by underpublishing at least one of those books.

The best way to avoid this?

Have a one-book contract. Never ever ever sign a multiple book deal, no matter how much they offer you.

Traditional publishers and agents will tell you it’s in your best interest to sign a multiple book deal. After all, you’ll get money for years, and you’ll know how much. But you won’t necessarily get actual money for years, especially if there’s an “acceptance” clause in your contract. (Meaning your book is not considered publishable until the publisher deems it “accepted.”) And there’s no guarantee, in this publishing environment, that your publisher will be around five years from now.

Besides, if you have a one-book contract, and your book is successful, then you have the opportunity to negotiate a better contract for book two. And with the rise of indie publishing, if you can’t get a contract for book two, who cares? You can publish it yourself.

. . . .

Time limit on publication.

This one is sneaky. It caught me on my very first novel. What you want here is for the clause to read in your favor. Something like:

If the Work is not published within two years of the date of this contract, the contract terminates, and all rights revert to the author.

Usually this clause isn’t quite so writer-friendly. But something like this clause is in most good publishing contracts.

The contracts that leave it out—well, the publisher never has to publish the book.

. . . .

Why have the audit clause? Because right now, you’re going on faith that the publisher will be honest with you. They have no reason to accurately calculate your royalties and payments. Publishers have never been accurate in their royalty calculations. Never. Why should they start now?

So, get an audit clause on your book. Be prepared to use that clause, especially if you have royalty clauses in your contract that are different from the norm. Because publishers might “accidentally” default to the old way of doing things, and only shape up if you prod them.

An audit clause prods them.

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.

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Discount Abuse

15 July 2016

From Kristine Kathryn Rusch:

Contracts have gotten worse, much worse in the past thirty years—and that’s with agents (so-called experts) negotiating them.

. . . .

For this blog, however, I’m going to focus on the discount clause.

Before you indie writers go heading off to the hills thinking none of this applies to you, look at the title of this post. Discount Abuse. Many of you indies are as guilty of discount abuse as traditional publishers are.

You just do it in different ways.

. . . .

Second: Do not do what traditional publishers do when they discount books. Generally speaking, traditional publishers do it wrong. Or their strategy is aimed at promoting their company, not at promotingan author. Your strategy is to grow your readership. A totally different thing.

Third: Be glad, as you scan this post, that you’re an indie writer. Even if you screw up and decide to discount your first book, you’ll make more money than your traditionally published friends do on theirdiscounted books. (Unless, you put your book up for free. Sigh.)

And—a bonus Fourth: Read this post now in case you decide to get a traditional publisher to publish your paper copies. Especially if you had (or will have) an agent negotiate the deal. Because much of what I’m going to discuss here applies to paper books, not ebooks. This is one of those areas where you, the indie who has gone hybrid, is most likely to get screwed.

In fact, this area is where writers have been getting screwed since some publisher thought to change their contracts in the last 1990s—and then all the other publishers followed suit.

. . . .

Discount clauses always send a ting of discomfort through me, and not just because the things are damaging to writers’ careers and writers’ incomes. But because they are one of those let’s-screw-the-writer clauses that got added into contracts in the past twenty years or so.

. . . .

And these modern documents have lots of let’s-screw-the-writer clauses. Sometimes they’re bunched into a single clause marked “the discount clause” and sometimes they’re spread out, such as these clauses from a fairly recent contract:

  1. Discounted sales. Some sales of the Work in the forms specified in [another part of the contract—forms like hardcover, trade paperback, mass market] above may be to jobbers, chain stores or others at substantial discount. Where the discount is fifty percent (50%) or more from the Retail Price, a royalty equal to one-half the regular royalty. Where the discount is sixty-five percent (65%) or more from the Retail Price, a royalty equal to ten percent (10%) of the Net Receipts per copy sold.
  2. Cheap editions. On all net copies sold of any cheap edition that the Publisher publishes at a price not greater than two-thirds (2/3) of the original retail price, a royalty of ten percent (10%) of the Net Receipts, but if the Publisher licenses publication of such edition by another publisher, a royalty of fifty percent (50%) of the Net Receipts.
  3. Other Book Publication. For other editions (including but not limited to premiums, mail order, schoolbook and book fair editions, and other special editions) sold in the United States: Ten percent (10%) of the Net Receipts.

This lovely publisher starts screwing writers right from the start. Chain stores or others? Most of the large stores get discounts over 50% as a matter of course, so that means that most of the royalties paid from a writer’s book are paid at half the usual royalty rate.

. . . .

These “discounted” books have no time limit, so if your book is really popular, and it sells to Barnes & Noble (chain store) or Wal-Mart (chain store) at publication, the publisher can discount the royalty rate too. Right from the moment of publication. No waiting a year, as in the 1980 contract.

And lookie here! The publisher doesn’t have to pay full royalties on books sold by mail order, which many publishers are now considering as books sold off their websites. In fact that entire clause that mentions other editions? It’s pernicious all by itself.

It says “For other editions (including but not limited to…)”

In other words, they can publish the definitive book, and then all kinds of other editions, because the author didn’t limit the kinds of books the publisher can publish. And believe me, there are a million different editions the publisher can think up, none of which the publisher has to pay full royalties on.

Things get even worse for writers. For example, this lovely publisher from whose contract I’m quoting has an even lovelier clause in its ebook royalty rate. That clause says:

Royalties For Ebook Editions sold in the United States, except as described in paragraphs 1-3 below: Fifteen percent (15%) of the Net Receipts.

Guess what, folks? Paragraphs 1-3 are the clauses I excerpted above. The discount clauses. So if your publisher has this clause in their ebook editions royalty rates, then your publisher can sell your discounted ebook and pay you even less. So that wonderful $1.99 sale they’re doing to “promote” you? Well, that $1.99 is significantly less than 50% of the cover price of your $9.99 ebook, isn’t it? Guess who doesn’t get paid a full 15% of net receipts on the ebook edition.

You.

By the way, the contracts I’m using for this modern stuff were all negotiated by agents, not attorneys. Just pointing this out.

. . . .

My solution is to go back to 1980.

First, the publisher can’t discount anything without seeking the author’s permission.

Second, the publisher can only discount a book after the book has been out for a year or more.

If the publisher wants to discount titles to promote sales in the first year of publication, let the publisher eat the difference in the cost. Not the writer.

. . . .

Traditionally published authors have no idea what price their book is selling for and what royalty percentage they will get on that book. Without a full-blown audit of their publisher, there’s no way the traditionally published writer can know.

These discount clauses—which the authors have freely signed—are the way that publishers are increasing their bottom lines. This is also why so many #1 New York Times bestselling authors are seeing their royalty rates decline. It’s not because the books sell fewer copies (although that’s happening as well); it’s because the authors are being paid less per copy sold—significantly less.

. . . .

Do your best to negotiate out these pernicious clauses. If you do manage to get those clauses out of your contract, be prepared to audit your publisher regularly. Because they’ll probably still act as if the clauses are in your contract, and figure you won’t catch them at it.

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.

PG is always conflicted when an author proudly tells him that Costco is selling the author’s books. The author is understandably excited at the prospect of selling a lot of books.

PG has not had any author mention that he/she understands that royalties on such sales will fall through the floor because of deep discount clauses. So far, PG hasn’t had the heart to share the bad royalty news with the author.

The increasing rapaciousness of deep discount clauses explains why fewer and fewer traditionally-published books are earning out their advances.

Whenever PG is banging heads with a publisher trying to extricate an author from a bad publishing contract, the publisher’s counsel invariably mentions that some or all of the books haven’t earned out their advances (as if this is a mortal sin on the author’s part). PG usually responds by saying he’s not surprised because the publisher is paying the author 5% royalties instead of 25% royalties.

Kris is correct that publishing contracts have become longer and longer over the past 10-20 years.

The basic rule for all types of form contracts in the computer word processing age is that lawyers never take anything out of a form contract and constantly insert new provisions and expand old ones. PG sees this in enterprise software licenses and internet terms of service as well as publishing contracts.

He’s also seen an increase an old contract trick that gives something to the other side on page three and takes it back on page 15. A 30-page contract makes this easier than a 10-page contract does.

When PG is reviewing a contemporary contract, he’s constantly going back and forth to see how Paragraph 48 may affect Paragraph 12, etc., etc., etc.

The bigger the jungle, the more places the tiger can hide.

The Midlist Rules!

24 June 2016

From Kristine Kathryn Rusch:

Inspired by the Author Earnings Report, someone asked people on that forum to report in, if they were in the top 1% of indie published writers. Meaning, according to this forum, that these writers earned at least $100,000 per year on their indie published books. Not on one book. On all of their titles combined.

Overall income.

That’s an important point.

I spent an hour reading the self-selected responses. Of course, folks who didn’t earn that much responded as well, and frankly, those posts were just as interesting as the others.

What I found fascinating wasn’t the number of writers who earned $100,000 on their Amazon sales alone. It was the other numbers in their reports.

Unit sales.

My little brain was blown.

And it shouldn’t have been. It really shouldn’t have been.

. . . .

I have known for years now that all of us earn more money on a per sale basis when we self- or indie-publish a book than we do when we sell our traditionally published books.

. . . .

To make $100,000 in a year, the traditional writer would need to sell 113,636 ebooks that year [with a net royalty of] 88 cents each.

Got that?

For an indie writer to make the same money that year, the math is pretty simple.

The indie writer gets 70% of the $5.00, just like the traditional publisher does. So the indie writer gets $3.50.

To make $100,000 per year, the indie writer needs to sell 28,571 ebooks in a year.

. . . .

You see, in traditional publishing, how much writers earn cumulatively doesn’t matter. Traditional publishing is all about The Book. One book. Not a series of books. Not all books by author. One book.

Royalty statements are based on the contract. If the contract is a one-book contract, then the only thing counted on those royalty statements is that one book.

That thinking is deeply, deeply engrained for me. And what’s worse, I have two sets of traditional calculations in my head.

The first is how many books per year I needed to sell to a traditional publisher to earn $100,000 by advance only. Because the advance is the only thing a traditionally published writer can guarantee.

Since advances are never paid as one lump sum amount, a writer would have to do one of two things—sell a book to a traditional publisher for at least $300,000 or sell a lot of books to traditional publishers that same year so that the total paid out would equal $100,000.

First, the $300,000—divided into signing, acceptance, publication. $100,000 for each third. Book contracts are still structured like this, although often, these days, it’s divided by four or more.

. . . .

My very first novel, The White Mists of Power, came out in 1991 as a mass market paperback with a cover price of $4.99. I was a baby writer, with my first novel. So my royalty rate was 6% on that book. Which meant that for each copy sold, I made 30 cents.

To earn $100,000 on that one book, I would have had to sell 333,334 copies of that title at full price. (Getting the full price royalty was easier to do in those days, by the way.)

. . . .

For me—and people like me, people who “grew up” in traditional publishing—earning $100,000 on one book in one year meant you either had a great agent who managed to bump the advance on that book or your book sold at bestseller numbers. Pre-2010 bestseller numbers.

So…when I hear that a writer makes $100,000 per year, and is only doing so on a handful of books, I default to my training. Oh, I think, they’re selling hundreds of thousands of copies.

Nope. They’re selling tens of thousands of copies.

Most of my traditionally published novels—including the absolute failures, the ones that never earned back their advances—sold more copies in their first year of publication than the books that are making their indie writers $100,000 per year.

I am not saying this about my traditional books to say that traditional is better. It no longer is. In fact, if you look at the Author Earnings numbers, you’ll see that a traditionally published debut author will actually sell fewer copies than an indie published debut author. And not by a few hundred copies, but by thousands of copies.

I’m making this point because so many long-time traditionally published writers get stuck in the wrong number.

We look at copies sold rather than income earned.

. . . .

Back in the 1980s and 1990s when a lot of us started, we sold at least 30,000 copies of a single title in the first month of release.

Book sales figures went down rapidly in the years 2007-2010, yet most midlist books in the first month of release sold at least 10,000 copies . The sales would fall rapidly after that because the book would disappear from store shelves, but the initial sales were high.

Now, sales build. They start small and grow.

. . . .

You can make what I call bestseller money—$100,000 per year or more—without selling more than 5,000 copies per year of a single title. Look at the numbers above.

To earn $100,000 per year, the indie writer has to sell fewer than 50,000 books per year. If the indie writer has one series of five books that sells better than her other series, she could sell 10,000 copies of each book in the high selling series over the entire year, and make that $100,000 (at the $3 price point). If the other non-series titles are trucking along at a much slower pace, the writer could be selling, say 8,000 copies of her books in her series, and 10,000 copies of all her other books combined, and make more than $100,000 per year.

Those book sales figures are small by old traditional publishing standards.

. . . .

People who work in traditional publishing have been making the same mistake I continue to make. They weren’t thinking about the real numbers. I know better. But they apparently do not.

They’re buying, say, paperback rights to ebook series and expecting to get bestseller numbers out of those books. Or even midlist numbers.

Even those indie authors are extremely successful, their single titles are often not selling at the kinds of numbers that make an international conglomerate happy.

Which is why so many formerly indie writers—and their traditional publishing editors—end up confused and disillusioned. The indie writers who’ve gone traditional expect their numbers to increase, which is a reasonable expectation, given all the hype that traditional publishing shells out about its ability to market books.

The traditional editors expect the formerly indie writer with the proven title to sell at old-fashioned traditional numbers—30-50,000 copies out of the gate. That usually doesn’t happen any more, and rarely happens with the paper-only deals.

Everyone gets disillusioned. Of course, the traditional editors aren’t doing their due diligence because hey! that’s numbers, and they do numbers much less often than I do. They go with their gut.

Or they do something else entirely. Like this absolutely terrifyingly accurate piece from the May 6, 2016 Entertainment Weekly, titled “The Million Dollar Book Club.”

The article purports to explain why publishers are “betting big” on some debut authors. The amount of “gut sense” and ignorance of actual numbers in that article is so staggering, the reporter noticed it, and asked one of the publishers interviewed about it.

That lead to the article’s final paragraph, and it’s a doozy:

Given the amount of books a publisher needs to sell in order to make a profit, it’s possible that none of these novels will actually make money. But Random House publisher Susan Kamil believes that the honor of having a sparkling literary talent on your list can offset any financial loss. “We want to have the best writers in the world at Random House,” Kamil says. “Sometimes those writers come at a premium—and we have paid it.”

Think about that for a moment. This is someone who is charged with running a for-profit business, trying to make sales, and boosting a bottom line, and she’s saying, “The honor of having a sparkling literary talent…offsets any financial loss.”

Um, no, honey. It doesn’t.

That’s how authors with big advances and sparkling debuts end up getting dumped by their publishers.

. . . .

What I’ve been telling all of you for years is this: you can make more money indie-publishing than you can as a traditionally published writer. More money faster, and more money in the long term.

I’d been seeing it in my own income. However, I also saw the sales figures and good old-fashioned me felt odd about it. Because of those high velocity numbers my books used to have back in the day.

Right now, the new books in my various series (with all but one pen name) are selling annually at much higher numbers than they ever sold when published by New York. Not in that first month. But by the time the books would be off the shelf in the old model, the sales I have are greater than that first month of traditional publishing sales. And the numbers are cumulative, meaning next year and the year after those books will still have very good sales, growing sales.

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.

PG will observe that Kris is describing a textbook characteristic of disruptive innovation.

The industry incumbents don’t want to compete in the market where the small disruptive businesses are selling their products. Those markets simply don’t generate enough profit to support the cost structure and profit needs of the incumbents.

Good sales for indie authors – sales of all their books sufficient to generate $100K in annual royalties – won’t move the needle for big publishers.

Once the small businesses reach or exceed break-even, they can continue to operate, compete and expand. PG predicts the number of authors who earn $100K or more in annual royalties will continue to increase in future Author Earnings reports. And so will the number of authors who earn seven figures or more in annual royalties.

More and more of these authors will be those who, absent indie publishing, would have signed with a traditional publisher and made money for a traditional publisher. But no $100K indie author is going to be satisfied making $30K as a traditionally-published author. And no $1M author is going to be satisfied making $200K as a traditionally-published author.

Any indie author who is supporting him or herself with their writing and who looks past an attractive one-time advance to consider their future ten-year or twenty-year income from indie publishing is not going to be tempted to take the traditional route.

From the indie author’s perspective, the cost of doing business with a traditional publisher is so high that the publisher will have to sell a large multiple of the number of copies the author would sell as an indie and keep selling that large multiple year after year to beat what the author would earn from self-publishing the same books.

Thugs, Lawyers, and Writers

18 June 2016

From Kristine Kathryn Rusch:

Here’s the best and worst thing about writers:

We have fantastic imaginations. Those imaginations serve us well when we write books and stories. Those imaginations often fail us when we enter the business world.

What do I mean?

It’s rare to find a writer with a Pollyanna view of the world. Most writers are better at gloom and doom than they are at unremitting optimism.

Writers also have an inflated sense of self—we couldn’t do our jobs otherwise—and a weirdly introverted need to be the center of attention. If we screw up, we feel like the entire world knows—and the entire world will react.

Badly.

For reasons I don’t understand, writers also want rules. They want to know how to write, what to write, and what to do when they’re finished writing. They cobble bits and pieces of information from blog posts to Mrs. Hanson’s Fourth Grade English class, and come up with some convoluted set of rules that they believe every writer could and would follow.

And, more so than in almost any other profession I’ve encountered, most writers are ethical to the point of self-harm. For example, in the United States, we have an annual homework assignment—our federal and state tax returns. Convoluted laws and all kinds of regulation allow for deductibles and legal ways to move income from the taxable side of the equation to the not-taxable side of the equation.

Writers often won’t use those deductibles and regulations that favor them, preferring to pay the full tax burden. Why? They believe that everyone should pay their fair share.

. . . .

But the writerly weirdness causes conflict with our careers and our businesses, in part because we are (as a group) imaginative, rule-bound, pessimistic, ethical, and the center of our own small universes.

We bring all of those things into the realm of contracts.

Be honest with yourself: What do you imagine will happen to you if you don’t follow your book contract to the letter?

Many of you imagine the Worst Case Scenario. What is that? You don’t know, because it’s never happened to you or your friends or your friends’ friends. Writers tend not to discuss what happens when they don’t follow their contracts to the letter.

But most writers imagine they know. They imagine those thugs from the old Warner Brothers cartoons showing up at their doorstep, doing bad Jimmy Cagney impressions, and threatening them with everything from bodily harm to loss of their home to—I don’t know.

. . . .

I’ve spent too much time with lawyers, businesspeople, and sales executives. To them, the entire world is negotiable.

In the past month, I found myself explaining writers to lawyers. Lawyers know that contracts are not written in stone. They’re rarely written in blood. All contracts can be changed, modified, muted, and defanged with enough effort. Sometimes that effort requires a judge and a courtroom.

Often that effort is as simple as a letter of notification, saying quite clearly that one party to the contract no longer wants to follow one particular clause in the contract. If the other party may simply accept that notification, or the other party might protest. Either way, a dialogue has been opened and the contract might end up being renegotiated.

However, lawyers—all lawyers I’ve met anyway—say something when discussing contracts that confounds most writers. Lawyers use the word “ignore” a lot.

Here’s how the conversation goes:

Kris: [flailing about, describing in great and horrid detail how upset she is about a contract clause that is ridiculous, probably unenforceable, and most likely will not stand up in court.]

Lawyer Friend: I don’t think that clause is legal.

Kris: But writers will follow it anyway.

Lawyer Friend: Tell them to ignore the clause and see what happens.

Kris: Writers would never do that.

Lawyer Friend: Why not? People ignore unenforceable clauses in contracts all the time.

Kris: Writers just won’t. They follow rules.

Lawyer Friend: What’s the worst that could happen?

Kris: I don’t know. You tell me.

Lawyer Friend: [shrugs] They’ll end up in court. Might be good for everyone involved, so that there’s clarity on that clause.

Lawyers aren’t afraid of thugs and goons and cartoon characters that go bump in the night. They’re not afraid of someone who plays the Big Dog and says, You’ll never work in this town again. Lawyers generally say, Well, let’s see.

Lawyers know there’s usually a solution—and it’s often as simple as standing up and saying to the person on the other side of the contract, I’m not playing your silly game. No. I’m not doing it. Now, what are you going to do?

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 that litigation also costs publishers money, whether they file suit or the author does.

From his own experience, he suggests that if a publisher is owned by a large European conglomerate, the big bosses in Germany, France, etc., believe the American legal system is insane and way, way too costly.

For the American subsidiary to pay money to US lawyers instead of sending it back to headquarters seems like a waste of good dollars and the US CEO who does so better generate a good return on those legal fees or he/she will be an ex-CEO.

This doesn’t mean that litigation is something to be taken lightly or that publishers will always cave, but it’s a factor to keep in mind.

The Grant of Rights Clause

26 May 2016

From Kristine Kathryn Rusch:

I am revising the Dealbreakers 2013 book. I had hoped to revise it every year, but I get so discouraged looking at the contracts as they exist now. I actually started to revise in the hopes of having the new book in this Storybundle, and then discovered I had so much new material that I didn’t have time to finish the book by mid-May.

Why is there new material? Because traditional publishing contracts have gotten ugly (or should I sayuglier?). And they’re not alone. Contracts for movie deals, gaming rights, comic books, and now works in translation are also getting more and more draconian.

Corporate entities have finally gotten a clue about the value of copyright and trademark. Now, those entities which own many of the companies you’ll deal with—even as an indie writer—want to own each piece of the copyright to any property they put their grubby little fingers on.

. . . .

As I’m revising the old Dealbreakers book, I am finding a lot of material that no longer applies. 2011-2013 was a transitional period in the ebook revolution. Traditional publishers didn’t know anything about ebooks, and writers had a lot more leeway in what they could do.

Now, things are so different that some of the contracts I’m touching feel toxic to me. I want to wash my hands after holding them.

. . . .

Let me show you an example of something you should never ever sign. This is from a real contract, offered to writers this year, which someone sent me a little over a month ago:

Effective immediately upon the execution of this Agreement, the Author hereby grants to the Publisher the following:

1) The sole and exclusive worldwide rights and license to print, publish, distribute, sell and sublicense, and generally exploit the Work, in all languages, whether in print, electronic, digital, audio, video, television, film, theatrical, or any other form or format now known or hereafter discovered or created, in all languages, including any and all editions and formats of the Work, in whole or in part and all revision of the Work and any edition thereof. As used herein, the term “editions” shall include worldwide rights: the term “formats” shall include all print, book club, and all electronic formats including download (whether over the Internet, through an “app” or otherwise), audio, disk, CD, or any other electronic or digital format known or to be invented, enhanced ebooks, mass market, large print, and any future formats/technologies for the duration of the contract term;

The Grant of Rights section goes on, with three more points that I’m not going to deal with here, because that clause all by itself is so squiggy that I shuddered as I typed it. Ugh.

. . . .

Any writer who signs this damn thing can’t even publish an author’s preferred edition with the text dramatically altered. Or compile an omnibus. Or publish half the book in Spanish, a quarter in Italian, and the rest in English. Signing this contract, with this one clause, gives the publisher rights to everything.

The contract goes on in terrible, awful, horrible ways. The noncompete is actually in a section calledAuthor Rights (!) and says that the author cannot “publish or permit to be published during the Term of this agreement any book or other writing based substantially on subject matter, material, characters or incidents in the Work without written consent of the Publisher.” And then there’s another non-compete later, and a third even deeper in the contract.

Link to the rest at Kristine Kathryn Rusch

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

Prince, Estates, and The Future

29 April 2016

From Kristine Kathryn Rusch:

Last week, the death of Prince hit me hard. I was in the middle of teaching the Romance Workshop, here on the Oregon Coast, and working my tail off. A satellite radio station that I always listen to had breaking news—something they never do (which is why I listen to them)—that I could barely hear. I heard “prince” and “died” and “young” so I’m wondering Prince Harry? Prince William? I pick up my iPad across the kitchen to look up the news, and that’s when I see it.

. . . .

I was thinking maybe it was the exhaustion from the workshop, but no. I realized it was because Prince had a huge influence on the way I go about handling business. Doing my work. Taking control of my contracts, my royalties, my art.

I immediately planned an entire blog post on Prince and business.

. . . .

I was still on the fence about how I was going to approach the blog—Prince, control, business, or thinking long-term and contracts—until late yesterday, when I saw on the news that Prince did not have a will.

I sighed. I was afraid of that.

. . . .

Why would someone as smart as Prince about business make this kind of mistake? A million reasons, some of them psychological. None of us believe we’re going to die, not really. And Prince had no children to leave things to. He was famously private, and putting together a will that would handle an estate of that size, with all of its future earnings potential, means that lawyers, financial advisors, and estate planners would have been combing through every aspect of his life, trying to figure out what would happen past his death.

. . . .

Like so many of us, Prince handled his own business. He hired help, of course. Otherwise continuing to be creative would have been impossible. Sometimes he partnered with a record label, sometimes he did not. But he had his fingers in everything.

He had his hands full. Estate planning was probably something he figured he could do later. Of course, later never came.

I’m sure that a lot of projects died with him. A lot has been written just this week about all the music he kept in a temperature-controlled vault at his Paisley Park estate. Speculation about what’s in that vault is rife, but Prince was clear about it. He believed the music in that vault was raw, not ready to be released, for whatever reason. He made conflicting statements about what he wanted done with that music—burned upon his death or eventually released, once it was ready.

It’s not ever going to be ready now, not the way that Prince envisioned, anyway. It’ll be up to whoever ends up managing the estate.

. . . .

I know how much work it will be to manage my estate. A friend of mine, with maybe 20 or so novels to his name, wrote an eight-page single-spaced sheet of instructions to the person who will inherit under his will, explaining terms (like intellectual property) and where the heir can look for more information on things like copyright.

In the middle of this document, which he said I can crib from when I get back to my estate posts, he writes that he has attached a spreadsheet which is a master file to all of his work, including the name of every work published, the ISBN of the print publications, date of publication, what channels the work has been published in, and whether or not the work has been registered with the copyright office. He added a separate file of all his passwords, and then a map on how to find the files (and their backups) for everything he’s ever written.

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 that, while there is lots of material about self-publishing, marketing, promoting, pricing, getting an agent, getting a publisher, etc., etc., Kris is the only writer he knows who has shared thoughts about what can/should happen when an author dies.

Know Your Rights

23 April 2016

From Kristine Kathryn Rusch:

I recently got an email that sent a chill through me. It was a newsletter from a traditional publishing organization. This organization is geared toward publishers and editors, not toward writers.

The newsletter was essentially an ad for an upcoming seminar that will teach publishers to understand intellectual property and expand their rights business.

Why did this send a chill through me? Because the one thing that has protected writers who signed bad contracts is the fact that their traditional publishers have no idea how to exploit the rights they licensed.

. . . .

[I]n short, most publishers ask for more than they have ever used in the past. Publishers have been very short sighted in how they published books.

. . . .

Ten years ago, it was relatively easy to get the rights reverted on a book like that. Essentially both parties agreed that the terms of the contract had been met, that the parties no longer had need of the relationship, and so they severed their business relationship.

It wasn’t easy-peasy, but it wasn’t hard either. It usually took a letter or two.

By 2005, however, most agents refused to write that letter which severed the contract. The reason was simple from the agent’s perspective. Many, many, many agents used a combination of their agency agreement and a clause in the writer’s book contract to define their relationship with the writer, and determine who controlled the marketing and finances of that book.

It wasn’t in the agent’s best interest to cancel the contract. In fact, the longer the contract existed, the better it was for the agent.

Writers with agents would have to write those letters themselves—and then, publishers would often contact the agent to find out why the agent was “letting” the writer do this.

. . . .

In the last year or so, I’ve been hearing from writers who say it’s almost impossible to get their rights reverted. The publishers want to hold onto those rights as long as possible.

The main reason for this has nothing to do with reprinting the book or keeping the book in the marketplace. It has to do with the changes in accounting that have occurred in the big traditional publishing companies.

The Big 5 (4? 3? Whatever. Jeez.) are now part of international conglomerates. Those conglomerates understand that intellectual property has as much value or more value than the buildings and land that the conglomerates use to house their businesses.

Those conglomerates put all of the intellectual property on their account books as an asset. So your novel—even if it’s more or less out of print (or has a $19.99 ebook like my novel Fantasy Life)—has a value assigned to it that reflects not only its earnings right now, but its potential earnings in the future.

The command came down from on high that publishers should retain the assets as best as possible. (I’m pretty sure some of these publishing companies were purchased for their intellectual property assets, not because of their bottom lines. I have no interest in proving that, though.)

So, publishers have kept the assets, doing the minimum to retain the rights to them. But they really haven’t maximized their profits.

. . . .

In practice, publishers have started to claim rights they never had. They’re interpreting the contract terms for something negotiated in 1997 by 2016 standards, and finding ways not to pay for those uses.

Big corporations are all about profit for the corporation. The best way to maximize profit is to lower expenses.

That’s why, after these big companies merge, you see layoffs a year or so later. That gives the new company time to define itself, find employees with overlapping duties, and streamline production.

Once the layoffs are over, once the agreements with the subcontractors (like printers and distributors) end or get renegotiated, the corporations look around for other ways to cut expenses.

The easiest way is to cut the payments to the suppliers—the writers.

. . . .

Just be aware that publishers often cut payments, and they use the contract as their guide. Not necessarily the contract negotiated in good faith with a corporate entity long merged into five other corporate entities, but the corporate entity that exists now.

Link to the rest at Kristine Kathryn Rusch and thanks to Bruce for the tip.

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.

As usual, Kris does an excellent job of talking about the business/legal aspects of being a successful professional writer.

PG would like to talk a bit about authors making a decision to sign a publishing contract with a particular publisher or editor.

Isn’t that a huge reason why most authors sign a publishing contract? RomancesRUs is the hottest publisher around and some of their authors are New York Times Bestsellers. And Leticia is the best romance editor who ever walked the earth plus she is so nice on the phone. (ditto for SciFiRUs, etc.)

The idea that no one will remember RomancesRUs in ten years and Leticia will be fired in six months doesn’t enter most authors’ calculations.

It is the nature of declining businesses to attempt to consolidate their way to survival. That’s what’s been happening in big and small publishing for awhile and what will continue to happen.

Many authors sign with a publisher because of that publisher’s reputation for quality books and successful authors. Some authors will sign because they’ll be working with an editor with a great reputation for excellence and success, the kind of editor that bestselling writers mention in interviews.

Similar thinking goes into an author’s decision to sign with a star agent, one with many happy authors who say nice things about the agent’s work.

These would be good business reasons to sign a contract that lasted for five years.

However, current reputations and past successes are a terrible reason to sign a contract that will tie up rights to an author’s books for the full term of the copyright. As a reminder, in the US, copyrights last for as long as the author lives plus 70 years.

In a successful business, management can last for a long time and often the original management hires new managers with similar business acumen and passes down the business principles that lead to that success through the hierarchy. Such businesses can work their way into long-term success.

When a business is declining, especially when it is part of a declining industry, management turnover and ownership changes become near-constants. Yesterday’s management practices are no longer today’s management practices. Some investors make a lot of money by acquiring problem businesses, cutting costs to the bone, then harvesting profits (pulling cash out the business) or finding someone else to buy the business because its financial statements now look better.

Traditional publishing is in decline. How long the decline might last is speculative. However, the words of Ernest Hemingway are instructive. “How did you go bankrupt? Two ways. Gradually, then suddenly.”

The Securities and Exchange Commission requires mutual funds to warn their investors that “Past performance is not a predictor of future results.”

Of course, an investor who bought into a mutual fund can sell his/her shares and have nothing further to do with that fund and its managers. A hedge fund that purchased a publisher can sell the publisher and be done with it. Since no US state permits life-time employment contracts, a publishing executive or editor can either quit immediately or wait a couple of years, then bail out on a failing publisher.

Only the authors who signed contracts that last for the full term of the copyright are tied to whatever corporate entity once called itself a publisher, but now is a hedge fund asset, for the rest of their lives plus 70 years.

(PG will note that a provision in US Copyright Law permits the creator of a copyrighted work or his/her heirs to terminate a contract 35 years after publication or 40 years after the contract was signed, but it doesn’t happen automatically and 35/40 years is also way too long. PG won’t get into the technicalities of this part of the law.)

“But it’s a contract for only one book,” an author might say. PG won’t take more space to discuss unfair non-compete clauses, option clauses, etc., can undercut the excuse that it’s only one book. Such clauses can affect a whole bunch of books.

Under current contract practices, the author is the only person who has to think in the long term while everyone else in the publishing business is focused on the short term.

Publishing contracts need to include provisions that end the contracts after a few years so the author can have the same flexibility as everyone else involved with the author’s books.

Fair, Compromise, Clout, and Balls

15 April 2016

From Kristine Kathryn Rusch:

Right now, traditional publishers are just beginning to realize that they can (and often do) control everything about a work of art. This should frighten you traditionally published writers, because publishers are going to exploit your works as never before. We’ll deal with that a bit next week, in a blog on copyright and permissions.

. . . .

We all know that you can’t control everything in life. That rule also applies to contracts. Some large entities do not allow negotiation on their contracts.

. . . .

Whenever you deal with contracts, you don’t negotiate the contract for the nice reasonable person sitting across from you. You negotiate the contract with the idea that the nice reasonable person will be fired and replaced with a demon from hell who will enforce every part of that contract to his own benefit.

. . . .

The best contracts are fair to both sides—at the time the contract is negotiated. However, contracts that were negotiated in 1980 are still being interpreted today, and the world had definitely changed. What might have seemed “fair” then isn’t necessarily “fair” now.

. . . .

So…you don’t have clout to negotiate a contract. You’re not James Patterson or Nora Roberts. You aren’t already a multimillionaire. You aren’t a successful businessperson. So, most people think you should slink into the background and wait for the success pixie to sprinkle you with magic dust. Once that occurs, thenand only then can you negotiate a contract.

Seriously? Please excuse me while I sigh and shake my head.

How do you think people become successful? They become successful by controlling their own interests and standing up for themselves. They become successful by learning their business. They become successful by taking risks.

One of the major risks you take in any business is that you will hear the word “no.” A lot.

What’s the worst thing that could happen in a negotiation when you ask for something you want (but may fear you don’t deserve yet)? Well, the person on the other side could say “no.”

Oh, waaaaah.…

But that person could say yes. Or they could say, I can’t do what you ask, but I can do something else that might benefit us both.

You don’t know until you ask.

And here’s the thing, people. Anyone who knows contracts, who knows business, expects you to ask. So ask.

What’s important to you might not be important to them at all, and so a yes on your most important thing might be easy to them.

It’s not all up to them, by the way. Because it’s a negotiation, which is a dialogue.

You might say, I want X.

And they might respond, I can’t do X. Sorry, no.

Then you might say, I see you want Q. But I can’t do Q if I don’t receive X.

If Q is important to them, they might cave on X. And so on.

You don’t know if you don’t try.

. . . .

[I]n traditional publishing, representatives negotiate with representatives, and the principals do not talk to each other.

What do I mean? I mean that agents negotiate with editors. Agents theoretically represent the writer and editors represent the publishing company.

Even then, the negotiation is uneven. In theory, the agent has no power to make or sign an agreement. In reality, the agent shouldn’t even be negotiating a legal document. Savvy writers use attorneys to negotiate a contract. We’ll get to all of this down the road.

Here’s the upshot: the writer’s representative should not be able to sign the documentation to make the deal. The writer’s representative is not (or was not) a principal. (Many agents are in the process of subverting this these days, which gives me the willies.)

Editors also cannot sign an agreement, and have only limited power to act within certain parameters, as the company’s representative. The editor has an offer and some wiggle room, but must get approval for almost everything.

Writers who drop their agents or handle things with their lawyers in the background often forget that the editor can be a representative. Suddenly, the writer is taking terms on the phone with an editor, and it might be a binding negotiation, not a casual discussion.

. . . .

Use a representative when you’re not certain you’ll be making a final deal or you need someone to be tougher than you can be. Let the representative put distance between you and that nice person you like a lot on the other side of the table.

. . . .

I do not let a publisher grab everything. If that’s a deal breaker for the publisher, then it’s also a deal breaker for me. I don’t want to work with someone who wants to own my intellectual property outright. I really don’t want to work with someone who wants to own my intellectual property and who tries to gain that property through subterfuge, as many new traditional publishing contracts do.

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 that in a typical first-offer business contract, there are almost always quite a number of terms that can change.

In some cases, when PG drafts such a contract, he’ll put in a few things that will be like bait for opposing counsel to change. That way, opposing counsel and the other side feel like they got some mileage out of their negotiating work and brought PG’s client around to their way of thinking.

In some cases, when the other side asks for a change in an important clause and a change in a bait clause, PG can move the deal forward by saying (always reluctantly) that the best he can do is split the difference and give in on the bait clause on the condition that the other side concedes on the important clause.

By his nature, PG is the kind of person who prefers to get down to business and get a deal done (or not) in a very efficient way. However, in the world of lawyers and clients, there are people who think they won’t get a good deal unless they go through an intense negotiation.

If you give them a contract with only important clauses, your best offer, they’ll assume that you’re willing to negotiate some of those away. So, in the interest of getting to a deal on terms that will be beneficial for your client, you set up the contract so you can do the negotiation the way the other side wants to negotiate and concede a few items.

Contract Basics (Contracts/Dealbreakers)

8 April 2016

From Kristine Kathryn Rusch:

I need to discuss the importance of contracts.

I know to some of you that sounds silly. Traditionally published writers expect to get a contract from their publisher. Hybrid writers expect the same thing, when they have a publisher other than themselves.

Indie writers often have no idea what contracts are or why they’re necessary.

In fact, all three groups rarely think about contracts at all.

. . . .

Over the years, I have become fascinated with writers’ attitudes towards contracts. Writers are so very cavalier about them. More than fifteen years ago, a former editor of mine (for a major traditional publishing house that has since vanished) told me that most writers she worked with looked at their 25-page traditional publishing contract like this:

The writer closely examined the lines covering the advance, and the advance’s payout schedule. The writer eyeballed the royalty rates, and the writer glanced at the deadlines.

That was it. Out of 25 pages, the writer looked at very little else.

I did not believe my editor. I really believed most writers were not that stupid.

I’m here to tell you now: she was right. Most writers are that stupid. Most writers pay no attention to their publishing contracts at all until some term bites them in the ass. Then the writer tries to figure out how to get out of it, not realizing that they got themselves into it by signing the contract without examining it.

. . . .

Writers in general—traditional, hybrid, and indie—do not respect their contracts. Writers don’t understand contracts, and rather than learning what a contract is and why it exists, writers let “their people” handle the contracts.

For generations now, “their people” are usually their agent and the employees of their agent, which, as you will see in future posts, is a truly terrible idea.

. . . .

Most writers expect someone else to generate a contract. Most writers want their traditional publisher or their agent or their service provider or their mortgage broker or whomever they’re in business with to provide them with a contract. Most writers have no clue that they can generate their own contracts.

Yes, you, traditional writers! You can go to your publisher with your own contract in hand. I personally know several writers who do this. That puts the contract negotiation phase on equal footing. The writer has their 10-page contract; the publisher has their 25-page contract.

The document the two end up with is neither of those contracts. It’s something unique to that particular negotiation, and probably won’t be replicated in the writer’s next negotiation with a different publisher.

There, traditional writers, did I just blow your minds? Because it certainly blew mine when I started editing over 25 years ago and some writers provided me with their standard contracts for short fiction. I didn’t know that was possible, because, at the time, I did not understand contracts or contract law.

. . . .

Contracts are extremely important. They define the relationship between the parties. Written contracts are the best, because each party can examine the terms, think them over, and decide whether or not those terms are acceptable.

You and I might discuss a proposed business plan over the phone. I might think we decided to have you do all the publishing work, from designing the covers of a book to writing cover copy, and you might think we decided that you would write the book and I would publish it. A simple misunderstanding that could happen in conversation would be solved if we had a written agreement.

With a written document, you can examine the terms and see if they’re feasible. But you must examine those terms before you accept the offer. Once you’ve accepted, the contract becomes binding.

It’s easier to take legal action over a broken contract if that contract is in writing. Taking legal action does not mean you have to go to court. You can have an attorney contact the other party, and let them know they are in breach of the contract. That’s very easy to do when the terms are spelled out.

I can’t tell you how many times I’ve taken part of a publishing contract and used that section to show the publisher that they were in breach of the contract.

Once someone is in breach, by the way, they usually have the right to cure. Meaning, if they do something wrong, they have the right to fix that problem within a reasonable amount of time.

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.

Dealbreakers/Contracts

1 April 2016

From Kristine Kathryn Rusch:

In 2012 and 2013, I published a series of blogs on contract deal breakers for traditionally published writers. I’ve been promising to update it for years now, but I’ll be honest: The very topic discourages me.

. . . .

I mentioned above that the topic of contracts discourages me. That’s one reason I’ve put the revision of deal breakers off for so very long.

I had hoped that contracts would improve. They haven’t. They’ve gotten worse. What has happened is that predictions long-time writers, like my husband Dean Wesley Smith, made have come true: Writers are starting to split into camps. Dean predicted two camps—those who published their books traditionally, and those who published indie.

Unfortunately, we’ve divided into three camps: those who publish traditionally, those who publish indie, and those who publish through their agents.

That last clause “through their agents” is so wrong, I have trouble typing it. The agents who still represent the writer as an agent are breaking the law when they publish a writer’s books. The agents are then becoming publishers, which makes them violate all kinds of agency law. Not literary agency law, which, anyone will tell you, does not exist in most states. Agency law, which governs anyone who calls themselves an agent—from real estate agents to insurance agents to literary agents.

. . . .

Most literary agents have no idea agency law even exists—at least, I hope they have no idea, because if they do, then they are flagrantly violating the law, instead of ignorantly violating the law. Me, I prefer the ignorant to the flagrant.

. . . .

Since huge conglomerates have taken over the big traditional publishers, no one even pretends at gentility any more. Smaller publishers which were often a dice-roll (some were great for writers; some were horrible for writers) are now as bad, or worse, than the Big Five. Much of this is economic—the economics of traditional publishing, done the old-fashioned way, isn’t working as well as it once did, so traditional publishers (large and small alike) are squeezing their writers like never before.

Most writers who publish traditionally can no longer make a living at writing. If those writers only write one novel per year, they definitely can no longer make a living at writing.

Most midlist writers are lucky to get an advance of $5000. Those advances are paid in three installments—signing, acceptance, and publication. Even being charitable and assuming that the advance is paid in the traditional two installments ($2500 each) or let’s be even more charitable, all at once, a writer can’t live on that kind of money.

The writer has to be able to write something else.

But most traditional publishing contracts —negotiated by agents —have some version of this clause:

The Work [the novel] shall be the Author’s next book-length work. The Author represents that there is no outstanding commitment for publication for the first time of another book-length work written or co-written by the Author to a third party and the Author will not offer rights to another book-length work written or co-written by the Author, or accept an offer for such a work, until acceptance of the Work by the Publishers and until the Author has complied with the option in Clause 3(a)

The option clause in most contracts is another problem, which options the author’s next work, and allows the publisher to take their own sweet time in deciding if they’ll buy the next work.

But note how pernicious this clause is. I took it from an existing contract that a writer sent me over a year ago. The only thing I changed was adding [the novel] for the sake of clarity. The rest is from the contract verbatim.

The contract is for a novel, yet this clause restricts book-length works. That includes nonfiction, short story collections, novellas, anything at book-length, which is not defined at all in the contract. So that means book-length could be anything the publishing company deems it to be.

. . . .

Usually, though, there is another clause, buried in the warranty, that says the author warrants he will not publish any other book-length work that will compete with this book. And who determines that competition? The publisher, of course. Certainly not the author.

So…for a measly $5000 (minus agent fees, which actually will make this $4250), the author signed away his right to make a living. In the early 1990s, I sold eight novels before my first one was published. I also sold an anthology that I edited, and I was editing a series of hardcover anthologies that we chose to call magazines.

If my first novel contract had had that clause, I could not have done any of those things. So, instead of earning tens of thousands of dollars in those early years, I would have been left with a check for $2125—and some crappy day job.

. . . .

For years now, Publishers Marketplace has tracked publishing deals on its website. Agents, in particular, love to report their really big coups to Publishers Marketplace. Publishers Marketplace divides the deals it reports into five categories, all by the amount of the advance.

PM defines “major deal” category—the largest advance category—as $500,000 and up. In the not-so-distant past, the major deal category was often for one book. If the agent secured a three-book deal that was $500,000 per book, the agent didn’t call that a major deal, because that wasn’t impressive. Someone might misinterpret and believe the agent got “only” $500,000 for all three books.

Instead, the agents would report a 3-book deal for $500,000 per book as a 1.5 million dollar deal.

I searched major deals this afternoon, and found quite a few. But when I looked at them, they were all for mid-six figures for a lot of books—usually a three-book deal, although I did see quite a few for five books, and one “major deal” for 11 books.

Believe me, if that 11-book deal had gone to seven figures, the agent on the deal would have said “In a deal worth one million dollars…” Didn’t happen.

In the past year, searching for fiction only, I found three deals listed as million-dollar deals. They include John Scalzi’s 10-year, 13-book, $3.4 million dollar deal (which comes to roughly $225,000 per book when you subtract agent fees). Only one of the three deals was for a single book, which sold for 1.25 million. The remaining deal was for over a million per book, and that was a $7 million 5-book deal (which comes to $1.4 million per book before agent) for a self-published writer whose books sold 1.2 million all on their own.

Three million-dollar fiction deals in 2015. Only three. And none yet in 2016. There were nine in 2014, and at least one per month in 2013. In 2012, there were at least two per month.

Why is this important? Because that home-run is less possible for everyone in traditional publishing, and they’re looking for other ways to make money. One of the ways they make money is squeezing writers. Another way is to own the copyright—or at least, control the copyright.

. . . .

And here’s the really scary part: Old contract terms, some written in the 20th century before ebooks existed, are being redefined and employed as a justification for publisher behavior. These traditional publishers—particularly those that have been subsumed into a major conglomerate—are not asking permission to change the definition of the terms. They’re just doing it.

Things that were pretty innocuous in 1985 are now weapons that are being used against authors.

You’d think that agents, who are supposed to work for the writers who hire them, would prevent this whole-sale change of meaning of old contracts. But a handful of agents are complicit in this, preferring to maintain their working relationship with a big publisher than rocking the boat for a small client.

Even more agents are just plain ignorant of what the changes in the clauses mean.

Those who run the agencies, though, do understand that their income is going down, so literary agencies have become pretty draconian in their own contracts. Those agencies make agreements with their authors, usually requiring the author to give them 15% of the earnings of a particular book if the agent sold the book. That’s bad enough, especially if the agent has been fired—as two of mine have (the two who still are entitled to 15% of certain projects).

But the agency agreements are moving into a whole new, and even uglier, place in relation to their writers. Agents are demanding a piece of their writers’ copyrights as well. Some agents are blatant about it, stating in the agency agreement that they make writers sign before the writer becomes a client, that the agent will own 15% of the copyright of any book the agent sells for the writer—or in the case of one agency, 15% of the copyright of any book the agent markets for the writer.

Other agency agreements are less blatant. You have to read them in conjunction with the contracts the agent has negotiated for the writer, to see that the agent has actually slipped his hand into the writer’s pocket and legally stolen copyright. Most writers trust their agents blindly, and never believe it would happen to them—until it happens to them.

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.

The problems Kris mentions are, unfortunately, not new and will be familiar to longtime visitors to TPV.

Some authors (or their lawyers) have had those clauses removed or defanged, but authors still sign “standard contracts” in the naive belief that if a contract is “standard” most other authors must have signed the same thing. Unfortunately, they can find the writing career they envisioned substantially constrained.

PG says if you want to be a professional author, act like a professional and make certain you understand the contracts you sign.

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