Don’t Do Business with Incompetents

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Over many years of practicing law at a very retail level (unlike what he does today), PG developed a couple of aphorisms for his own law business and has since concluded they apply on a broader scale:

  1. Don’t do business with crazy people.
  2. Don’t do business with crooks (unless you practice criminal law and get paid in full up front).

In a small-town law practice, all sorts of people walk in through the door. PG always hired the smartest secretaries/paralegals he could find and paid the good ones more than they could earn anywhere else in the local economy so they would stick around. These wonderful women spared PG a great many encounters with crazy people. (PG wasn’t biased against men, but none ever applied.)

Once in awhile, a crazy person would slip by PG’s sharp watchdogs, however. (A lawyer friend once told him, “The problem with fools is that they can be so ingenious.” Ditto for crazy people.)

On a couple of occasions, a crazy person who slipped by the support staff also eluded PG’s crazy person screen. On a couple of other occasions, the Legal Aid office asked PG to help a poor unfortunate crazy person and PG agreed, sight unseen.

(Legal Aid is a generic name for a variety of organizations in the United States that help provide legal assistance for those who need it and can’t afford an attorney. In many cases, Legal Aid staff attorneys are able to provide the needed help. For other cases, staff attorneys don’t have the necessary expertise or aren’t able to solve the problem for other reasons and practicing attorneys are asked to help, either for no fee or for a fee that Legal Aid pays that is much lower than the attorney would ordinarily charge. Legal Aid organizations generally limit their services to civil matters while Public Defenders, paid by the local, state or federal government, represent criminal defendants who are indigent and unable to afford private counsel.)

While crazy clients make for some colorful war stories that lawyers swap at bar association dinners, they are apt to consume an enormous amount of time and effort on the part of counsel and staff and generally disrupt what is already a very busy business environment. (One crazy client of PG decided she would occupy PG’s waiting room until he agreed to speak with her at length for the thousandth time about what a terrible person her estranged husband was, a topic that wasn’t relevant to the division of marital property under state law. After efforts to persuade her to depart failed, the local police were called and the client screamed, “Rape!” over and over again as she was forcibly removed from PG’s office.)

This long, long prelude to PG’s equivalent advice to authors is over.

For authors:

  1. Don’t do business with a crooked publisher.
  2. Don’t sign long-term publishing agreements with a small-time publisher, regardless of how pleasant he or she is, that will tie up your books for a long, long time unless you don’t really care much about your book or receiving many royalties from its sales.
  3. Don’t do business with an incompetent publisher, regardless of how well-meaning the publisher may seem.

PG will speak briefly [correction – not very briefly at all] about incompetent publishers, based upon a recent encounter about which he cannot divulge details because of obligations of confidentiality to a client.

To the best of PG’s knowledge, there is no law or regulation in the United States that places any limitation on whoever can call themselves a publisher. An individual who has spent her entire adult life as a plumber can retire from plumbing one day and open Plumber’s Publishing the next morning.

There are a surprising number of people who do something like PG’s plumbing hypothetical in the United States. Sometimes a printer or someone who has been in the printing business will decide to become a publisher. Sometimes, the owner of a successful bookstore expands into publishing. Both these people know may be an expert on an aspect of the book business, but that doesn’t make them knowledgeable enough to become a reliable publisher.

While PG takes religion in general and his personal religious beliefs in particular seriously, he doesn’t hesitate to say that more than a few religious publishers fall into this don’t-know-much-about-publishing basket.

One of the common practices of incompetent publishers is to take a copy of a publishing agreement from another incompetent publisher, change the name of the publisher to Plumber’s Publishing, and call it their own.

Then, just like the incompetent publisher before them, Plumber’s Publishing starts rewriting this and adding that.

In the end, an unwitting author is presented with the 15th generation of a publishing agreement that may not have been particularly well-written by the original creator, lawyer or not, and certainly has not been improved by the tweaks and the tweaks-of-tweaks that it has undergone since then.

An unwitting author may believe that a legal document with Plumber’s Publishing Publishing Contract at the top is an official and reliable publishing agreement, especially when Jane Plumber says, “This is our standard publishing contract.”

What reasonable person would question a “Standard Contract” fresh off a cheap inkjet printer?

If an author is smart enough to organize and write a decent book, that author likely possesses a higher level of general intelligence than Jane Plumber does.

PG has seen enough publishing contracts to assure one and all that there is no “Standard Publishing Contract.”

A Random House imprint has a Standard Contract that is regularly modified by savvy lawyers or agents working with an author.

A Simon & Schuster imprint has a Standard Contract that is not the same as a Random House Standard Contract. Simon & Schuster’s Standard Contracts are regularly modified by savvy lawyers or agents working with an author.

As PG has said on more than one previous occasion, if you sign a bad rental contract for an apartment, it may cost you some money, but it won’t last forever. If you sign a bad purchase agreement to buy an automobile, it may cost you some money, but it won’t last forever.

Most unfortunately, a bad publishing contract and 99% of “Standard Publishing Contracts” will last forever, absent expensive legal interventions after the contract is signed.

This is because, in dull legalese, most book publishing contracts give the publisher the exclusive right to publish the book “for the full term of the copyright” or something similar.

Under current US copyright law, “the full term of the copyright” is the rest of the author’s life plus 70 additional years. Copyrights last for similar periods of time in other major Western nations.

Everyone currently working for the publisher will almost certainly be dead long before the “Standard Publishing Contract” expires. The current owners of the publisher will almost certainly be dead before the contract expires.

Anyone working for the publisher can quit and go to work somewhere else, taking their accumulated talents and abilities with them.

But the author can’t “quit” the “Standard Publishing Contract”.

The best book the author has ever written or will ever write will always be published by Plumbers Publishing unless someone persuades whoever owns Plumbers Publishing to give up its rights to the author or the author’s heirs. This persuasion will almost certainly involve money paid to Plumbers Publishing or to expensive lawyers who sue Plumbers Publishing on behalf of the author or the author’s heirs.

5 thoughts on “Don’t Do Business with Incompetents”

  1. Much as it pains me to disagree with Our Gracious Host:

    (1) If you’re going to focus on creators — whether in text or in other forms — you’re going to be dealing with an alarming proportion of incompetents, nutcases, crooks, and/or more than one of the above. Since virtually every legal dispute around creatives involves at least one and up to five distinct phases, and each phase has the same above-average proportion of, umm, “nonoptimal actors,” one’s chances of having to deal with them is pretty close to certain. And the less said about heirs to any of the above, the better (I have had an institutionalized client forced on me because I represented the creator and the creator died leaving a single heir… and more publicly, all one need say is “Stephen Joyce” and every sane person will run screaming).

    And remember: It can be just as difficult to deal with an incompetent/nutcase/crook across the table (or if things truly go south, across the v.) as it is with one’s client. I’m not at liberty to discuss all that many details, but it’s public knowledge that I was across the v. from AOL/Time-Warner and CBS/Simon & Schuster. To be excrutiatingly clear, I am not saying that either conglomerate is “worse” than its peers!

    (2) Contrary to the contract language in publishing contracts (and in H’wood agreements), for anything other than a work-made-for-hire that actually satisfies the statutory definition — a remarkably small proportion of the works claimed as works made for hire actually do — there is a potential sunset to the contract. It is still an awfully long time (essentially four decades after all of the notice requirements are considered, see 17 U.S.C. § 203; we’re going to ignore pre-01 Jan 1978 transfers here, § 304(c) is even more arcane), but it isn’t “life of the copyright.”

    And if one is careful, one will ensure that the “out of print”/reversion clause doesn’t allow the publisher to use a not-selling POD or electronic edition to hold onto rights. Even Big 5 publishers will agree to modifications to their “standard” out of print clause when pushed hard enough and with the right counterproposal. I’ve had great success getting them to agree to clauses that basically boil down to “After the first three years, it’s ‘out of print’ if it fails to earn at least $X in each of two consecutive royalty-reporting periods,” with $X usually around 1.5-2% of the advance or $250ish, whichever is higher.

    Neither of these does or should require “expensive legal intervention after the contract is signed” if one follows the Fram Oil Filter Method. Remember the 1970s Fram Oil Filter commercials (“This is a Fram Oil Filter. It costs about $3. Change it when you change your oil, or you’ll be changing your engine. It’s about $800.”)? That’s what having competent legal representation at contract time is. Which is not to say that “all lawyers are oily,” although I’m not denying a certain slickness to our activities…

    • CE – As usual, you make some very good points.

      However, let me clarify my perhaps ineptly-worded rant regarding not doing business with incompetents.

      I was speaking primarily about incompetent individuals and businesses in the traditional publishing industry.

      Setting aside creative royalty reporting as a special case, with few exceptions, in my experience, most publishers, large and small, are not involved in creative activities. Yes, they enter into publishing contracts with authors who are involved in truly creative activities, but that doesn’t make the business publishers run part of any sort of a real creative world.

      Is printing documents in a standard format a creative act? Without demeaning those who work hard to do good work and provide real value as printers of books, newspapers, etc., I submit they are not creatives in any way most people would regard as equivalent to the people who write the books.

      If I, as an attorney, take the computer with which I write legal documents to a computer service center for upgrades and repairs, does that make the computer technician in any way like an attorney?

      Similarly, when a publisher is dealing with an author (who is a true creator) in order to convert the author’s creative work into physical and digital commercial products, does that make the publisher a creator? I don’t think so.

      If I helped Michelangelo sort out a dispute with his marble vendor so he could obtain the substance necessary to create the Pietà, would that make me a creator?

      Yes, attorneys can make creative use of laws and court opinions. And printers and book designers can perform creative acts in the process of carrying out their responsibilities.

      But that doesn’t make attorneys and printers creators in the same manner in which an author is when she/he turns a blank piece of paper or an empty computer screen into a superb story.

      My advice not to deal with incompetents was warning authors not to deal with publishers (or anyone else) who don’t really know what they are doing. There are many ways in which a publisher can be incompetent and one of those ways is to use a poorly-drafted publishing agreement that the publisher is not qualified to create or alter.

      A publishing agreement is a legal document. Shortly after the idea of transferring an oral agreement into a written agreement that gave each party what she/he bargained for and could be understood and enforced by an unrelated third party, someone made a complete hash of the written agreement part of this process.

      Between an author of a book and a publisher with whom the author enters into an agreement to publish the author’s book, I think the the author has a reasonable expectation that if the publisher presents a publishing contract to the author, the publishing contract will not be a total mess.

      In the way that most cultures with which I am familiar operate, it would be a bit surprising for an author to come to a publisher and say, “Here is a publishing contract I want to use under which you will publish my book.” I don’t visit my physician and present him/her with a contract that describes how much I will pay for an office visit and how long I will have until I will be required to make that payment.

      Of course, in a perfect world, both the author and publisher would be represented by competent counsel who would help them understand and alter their written agreement as necessary so both are satisfied with the bargain and so there was no possibility that either one would not have a clear understanding of who would do what and how much it would cost.

      Of course, like a tow truck driver arriving at the scene of an auto accident, attorneys will be compensated for helping to clear up the mess that arises when two people have become involved in a contractual car wreck.

      I thank you, CE, for helping me to clarify my message. Unfortunately, my wife does not thank you for triggering a late-night OCD episode on my part.

      Good wishes to you and yours.

  2. As a former lawyer in Australia both the post and the comments resonate with me. My small 2 partner firm was for many years located in a small office building which housed 4 other firms. Over the years it became apparent that what we called disparagingly “nuts” would visit the building regularly. Often they would have been through multiple former lawyers who were all incompetent but were confident that you were the one to win the case if you would only take it. Like PG, one would sometimes get past all of our extensive filtering methods and my partner or I would find ourselves wasting our time across a desk from them. For a while we regarded this as a wonderful opportunity. “I sympathise, but unfortunately we don’t specialise in that type of matter. But it’s your lucky day. I believe (name of firm or lawyer) on Level whatever does nothing else. Why don’t you go and see him. So, lo and behold, weeks or months later the favour is returned. For a while after that we all had a little fun in a very stressful profession. This soon morphed into a warning system. All of the firms in the building on turning one of these characters away started giving the other firms a heads up with a brief description of the offender, who would soon move on to greener pastures.

    Incompetence of at least some degree is of course a very basic human trait. The Peter Principle is alive and well, and I doubt this will ever really change. CE is correct that it is virtually impossible to escape dealing with “nonoptimal actors”. Though Authors do not need to appoint such “non-optimal actors” to look after their cherished work. Authors would, as PG suggests, be very wise to be particularly wary of incompetent publishers and even smaller publishers. Though they should be equally or even more wary of competent publishers with “standard contracts” that are not only unfair but grossly so. It often amazes me to hear of agents without legal qualifications advising on and negotiating such contracts on behalf of authors. Yes, us lawyers have contributed to a very poor public opinion of our profession, including the perception of greed. But to authors who put any commercial value on their work money spent on a competent lawyers advice is generally money well spent.

    • D – Nice to see that the lives of solo/small firm lawyers in the US aren’t that different from those elsewhere. That has always seemed likely to me because some aspects of human nature are remarkably resilient in the face of a wide variety of cultural influences.

      Thanks for your comment.

      • … That has always seemed likely to me because some aspects of human nature are remarkably resilient in the face of a wide variety of cultural influences.

        Yep. It really hasn’t changed much in 70,000+ years, so you’re pretty safe there.

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