On January 5, 2016, the Authors Guild released an open letter to “U.S. publishers—namely those who are members of the Association of American Publishers.” The letter, based on the fair contracts initiative that the Authors Guild started last year, informs publishers that they need to improve the standard contract model between writers and publishers.
Dozens of other writers’ organizations have signed onto this letter, and the Guild requests that writers’ organizations outside of the United States follow suit with their publishers in their countries.
The point of the letter is “to start a conversation within the industry about antiquated and unfair clauses in ‘standard’ book contracts.”
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I believe writers should understand what they sign, and walk away from bad contracts. Simply knowing that publishers will negotiate many of these points will help writers in standing up for themselves—without agents, who make the problem worse, generally speaking.
(Agents, who are not lawyers, break the law when they practice law without a license. In some states, that’s a misdemeanor. In others, it’s a felony. But I digress.)
Writers can hire lawyers to negotiate for them, and believe me when I tell you that the lawyers will do a much better job for the writers who partner with them. Why do I use the word “partner”? Because I’ve seen some writers completely misunderstand what the lawyers tell them, and make matters worse. Writers need to understand that contracts are a unit, and changing one clause without changing another will sometimes not make a difference at all.
Most important of all, writers must understand that they are not selling their books to publishing companies. Writers are licensing pieces of the book’s copyright.
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I want to support what the Authors Guild is doing here. I really do. I believe this “conversation” needs to commence. Writers—particularly writers of the Take Care of Me school—need to understand that their publishers and their agents are not their friends. Those two entities are in business for themselves and will devise contract terms to benefit them.
Most agents are vested in keeping their relationships with publishers smooth. If forced to choose between one of their authors and a Big Five Publisher, the agent will choose the Big Five Publisher, because that publisher provides more income and opportunity than the single author will (unless that author is a mega-bestseller a la James Patterson).
The Authors Guild letter will go a long way in educating Take Care of Me writers, who absolutely need to hear what the Guild is saying about contracts. The contracts are unfair. They’re ridiculously one sided, and I would wager that if some bestselling author with a bad contract went to Equity Court, the court would consider canceling the contract altogether. (However, you can never entirely predict what a court will do, which is why I’m hedging my bets here.)
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I’m not unusual, however, in my lack of an Authors Guild membership. I personally know hundreds, maybe thousands, of writers who earn a full-time living at their writing—and judging from a quick scan of the Authors Guild membership, only about 20 of the writers I personally know who are making a full-time living are Authors Guild members.
So who are these Authors Guild members?
Well, once I eliminated the names of old-time NYT bestsellers and writers who live in NY, a lot of the names I recognized were agents. Agents, and agent assistants. Agents are allowed to become “members at large” which is a non-voting category of membership, but clearly (clearly!) influential.
When I shut off my “know personally” filter and searched the list of member names. I recognized the bylines of many writers (most nonfiction), but found only the handful of New York Times bestsellers on the list.
Frankly, the paucity of New York Times bestselling fiction writers on that list startled me. (Most of the Big Names were once-every-five-years, research-heavy nonfiction writers.)
Some of the biggest New York Times bestsellers are not on the list. Nora Roberts, George R.R. Martin, and Stephenie Meyers aren’t here. Nor are James Patterson and John Grisham. Debbie Macomber isn’t there. Those six authors sell a lot of books, and make hundreds of millions (if not a billion) for traditional publishers. (Realize, however, that public declaration of membership is something the author can choose not to do, so I don’t know for a fact that these people are not members.)
Bestsellers who aren’t in the “mega” category aren’t on the list either. Lee Child isn’t there. Neither is Robert Crais or John Scalzi or Neil Gaiman. So when the Authors Guild says it represents “the collective voice of American authors,” it’s just representing the collective voice of a small handful of American authors, influential and non-influential alike.
The Authors Guild says it will accept self-published writers, which surprised me, because I didn’t see the name of a single major indie writer, like Marie Force or Hugh Howey.
. . . .
I do know this: If you remove all hybrid, indie, and self-published authors from consideration (leaving only traditionally published authors), then writers’ income has declined in the past six years. I know for a fact that a lot of bestsellers are losing income because their sales have declined, but that decline won’t show up in most royalty statements until later this year. And a lot of the contracts of really big bestsellers don’t have the onerous contract terms that the Authors Guild lists.
But add the hybrid, indie, and self-published writers back into the mix, and I would wager that writers’ income has grown dramatically in the past six years. Author Earnings provides more than enough information to allow me to make that statement with my wiggle-words attached. Why the wiggle-words? Because I don’t know how much traditionally published only writers’ incomes have declined. Enough to off-set many of the gains of the hybrid, indie, and self-published? I don’t know.
However, given the pool of writers that the Authors Guild represents, I absolutely believe that those writers have seen a drastic decline in income. Most of the writers in the visible list are mostly mainstream and literary, with very few genre names on board (except for a handful of mystery and children’s book writers that I saw). Almost all are traditionally published.
. . . .
If the Authors Guild letter had stated that the Authors Guild membership saw dramatic decreases, that letter would have been accurate. But the Authors Guild for some blind, ungodly reason, believes that it is “the collective voice of American authors” and doesn’t realize that it doesn’t even represent most of the successful authors in America.
I hate it when someone puts misleading information out into the public discussion. I hate it more when my colleagues in the journalism field accept those numbers without a thought or fact-check. All I did was a spot-check of the names on the members list and I knew immediately that the information was incomplete at best.
. . . .
[N]ot even that money paragraph (which got me going on my rant) is the paragraph that angered me.
The [Authors Guild Fair Contract] Initiative’s fresh look at standard book contracts has proven without doubt that provisions that would never be acceptable in other contexts have long been taken for granted in publishing agreements. Authors are now standing together to say “no.”
I left off the final sentence of that paragraph. I will deal with it, and the tone of the letter, shortly.
But let’s consider that paragraph, which is the letter’s second paragraph. A “fresh look” has shown that provisions “that would never be acceptable in other contexts” have “long been taken for granted in publishing agreements.”
I do love passive voice. Because the missing clause here is “by the Authors Guild.”
Remember the Authors Guild claims to be “the nation’s oldest and largest professional organization for writers.” On its website, it also states, “The Guild advocates for authors on issues of copyright, fair contracts, free speech and tax fairness, and has initiated lawsuits in defense of authors’ rights, where necessary.”
These “antiquated” contract terms, long taken for granted, have existed for at least fifty years in the publishing industry. I can tell you for a fact that I’ve seen these terms since the mid-1980s in contracts.
Where the hell has the Authors Guild been? What kind of advice has it been giving its writers? Why hasn’t it stood up against bad publishing contracts before now?
. . . .
And ten to fifteen years ago, as ebooks just started up, smart writers complained vociferously about the 25% of net clauses. Agents refused to negotiate those clauses, citing industry standard, and traditional publishing said they had no idea how to pay royalties on ebooks any other way.
In other words, no organization that I know of—not SFWA, not MWA, not RWA, and certainly not The Authors Guild —fought the implementation of 25% of net as ebook royalties. The publishers wanted 25% of net and the organizations rolled over, not understanding the problem.
My early contracts in those years treated ebooks as a subsidiary right. I got 50% of retail. Then as other authors, agents, and organizations caved, I had to fight to get 50% of gross.
Finally, I found myself facing 25% of net. That’s (fortunately) when I had the opportunity to indie-publish my books. And I took it. Because I knew that 25% of net will—by 2020—equal $0. There would never be a net income, just like there isn’t on big Hollywood movies. (It’s already going that way.)
The fact that the Authors Guild has done nothing for decades to help writers understand and negotiate their own contracts makes me furious. Particularly when the Guild, in a panic, has decided to beg publishers to be offer good terms.
Yeah, I said “beg.” Because this Authors Guild letter is one long whine.