Passive Guy has so many other things on his plate, he should put his inner ranter on hold, but a rant’s got to do what a rant’s got to do.
As PG has read book contracts for his clients (Thank You!) and contracts contributed to his Contract Collection (Thank You!), one message keeps coming through loud and strong.
Contempt.
Contempt for authors.
Contempt from publishers for authors.
Contempt from agents for authors.
As PG has mentioned before, during his legal and business career, he has negotiated, written, revised and reviewed many, many contracts (Hundreds? Thousands? He never counted and it’s too late to start now).
Some of the contracts were tough – dividing lots of money and property to settle a bitter divorce, creating a make-or-break deal for a small tech start-up with a Fortune 50 giant.
Some of the contracts were devious with PG sometimes discovering deviousness and sometimes creating it.
Some of the contracts were enormously complex — not quite book-length, but stuffed with dozens and dozens of cross-references and pages of defined terms that meant something different than they seemed to mean at first glance, particularly when they were combined with each other.
One of the things an experienced negotiator tries to do is to discern what’s behind the contract’s language, what the intent of the other side is, what they’re really seeking, what’s important and not important to them.
PG recently reviewed a contract that was strangely schizophrenic – generous to PG’s client on one hand and parsimonious on the other. On his first read-through, PG felt a little whiplash. When he went through the contract a second time, underlining, circling, writing cryptic notes in the margins, PG realized what was going on.
Believe it or not, lawyers have writing styles. The contract included two different writing styles.
While it’s possible two different lawyers in the same firm contributed to writing the contract, PG is pretty certain opposing counsel did a cut-and-paste for the harsh portion of the contract, the part representing a subject counsel didn’t understand very well. Because he was insecure about his knowledge, counsel hunted up a tough contract from a colleague or friend or book, pulled part of it out and dropped it into the fairly-reasonable partial draft he had already prepared.
This discovery will affect how PG approaches the negotiation – a little low-key education instead of responding to a slap in the face.
Speaking of slaps in the face, that pretty much describes most of the publishing and agency contracts PG reads.
First, measured against other classes of business agreements, they tend to be pretty sloppy. Large publisher, small publisher, pretty sloppy.
Indicia of sloppiness are many and varied, but include paragraphs that conflict with one another, vague and undefined terms and, sometimes, places where it’s clear a non-lawyer rewrote a paragraph. Badly.
As a general proposition, when a contract is important to an organization, the contract is well-written. When a contract is between a publisher and an author, it doesn’t matter. Even if the author reads it, she won’t understand it and neither will her agent. At any rate, the publisher will bully the author into doing things the publisher’s way regardless of what the contract says.
Contempt.
Many publishers have their version of a clause designed to capture new book rights that will be invented one hundred years from now.
Publishers were blind-sided by ebooks and have had to simply claim their contracts included ebooks even when the contract never mentioned anything but hardcovers and paperbacks.
Publishers know that if an author takes them to court, a judge will ask a question something like, “Where does it talk about ebooks in this contract?” Publisher’s counsel will respond by talking about emanations and penumbras floating around paragraph 15 and subparagraph 21(d). The judge’s well-honed BS meter will quickly be pegged in the red zone.
A contract is supposed to reflect the intentions of the parties at the time it is signed. Copyright law includes a presumption that any right not expressly granted by an author is deemed reserved to the author. If an author requests a standard reservation of rights clause, even a publisher may feel embarrassed by refusing to include it.
So, in the tradition of fighting the last war, we see a Rights Clause whereby the author grants the publisher the sole and exclusive right to create or produce or cause to magically appear any book or book-like object or book idea and beam the result into the sky in any form which is now or may in the future be stumbled-upon or imagined or hallucinated by the mind of man and/or machine in any conceivable or inconceivable way and anywhere throughout the world and the universe, whether presently mapped or unmapped.
In the reality-based business world, if PG received a contract including a clause like this, he would call opposing counsel and ask, “Sally, what are you smoking?”
In the traditional publishing world, the author is supposed to sign at the bottom of the page.
Contempt.
Finally (for this post), there are all the smarmy little attempts to put one over on an author. PG can appreciate well-crafted deviousness just for the art of it, but these are stupid deviousness.
How to choose between so many candidates for discussion?
Passive Guy will return to last July for this one, an audit clause:
Author may, with sixty (60) days’ written notice but not more than once a year, assign and designate a certified and independent public accountant to examine Publisher’s records as they relate to the Work. Such examination shall be at Author’s expense unless errors are found in excess of ten percent (10%) of royalties in Author’s favor, then Publisher shall pay amounts owing for the Work and the reasonable cost of the audit.
As a condition precedent to the exercise by Author of his/her right to examine the books and records of Publisher, Author’s duly authorized certified and independent public accountant shall execute an agreement to the effect that any information obtained as a result of such examination shall be held strictly confidential and shall not be revealed to any third party other than Author or her representative without written permission by Publisher. Author also hereby agrees to hold all information and statements provided to Author or her accountant in strictest confidence.
Do you see the smarmy deviousness?
In order to perform an audit to determine if the publisher is stealing from the author, the accountant hired by the author will have to sign an agreement, an agreement the publisher will create.
How hard is it for the publisher to create an agreement no accountant will ever sign? Not very.
No signature, no audit. You’ll just have to be satisfied with the numbers we decide to put on your royalty report, dearie.
You say twenty of your friends each bought a copy of your book from Amazon in the middle of August and we showed no ebook sales on your royalty report for the second half of the year? Amazon makes mistakes all the time. Have your accountant sign our agreement and we’ll give you some numbers.
In the meantime, go write some blog tweets and tweets to get your book sales back up. If you’re a good girl, we might give you a cookie with your next royalty report.
Contempt.
This last bit is sickening: “How hard is it for the publisher to create an agreement no accountant will ever sign? Not very.” I can see why a person seeking the commercial publishing route would need not only an agent but a lawyer on his/her side just in case something like this pops up in the contract.
Jodi
An author isn’t even allowed to examine the accounting of publisher as relates to their book?
The author needs to give them 60 days notice to see something the publisher should be up front about anyway.
Smashwords emails me when I sell a book via Smashwords, telling me how much the purchaser paid, what percent was taken off and why and how much I made.
And this is yet another reason (among many) I prefer working with a literary lawyer to working with an agent. After I quit the agent-author business model and hired a lawyer to do my contractual negotiations with publishers thereafter… I was astonished to discover how much more my lawyer knew about contractual clauses, what the details mean, what the ramifications are, and what-to-do-about-them (i.e. replacing them not only with clauses more favorable to me, but also replacing them with clauses that are clearer and more specific) than my various former (well-known, well-established) literary agents had known, understood, or done.
In retrospect, my complacency about being “represented” in legal negotiations, viz complex contracts that were 10-15-20-25 pages long, by people who were NOT lawyers, bemuses me. Yes, it’s the norm for the profession. That doesn’t make it remotely intelligent or sensible, though, and in retrospect, I’m baffled and embarrassed that I went along with it, in my own business model, for so long.
Sloppy contracts? Oh, I’ve seen a bunch. One I had to return because my name was misspelled. Another I had to return because it promised an advance of “xxxx dollars dollars”.
Once when I complained because the final part of my advance was six months late, the editor had the gall to say the clause stating payment was due “upon the publisher’s receipt of the complete manuscript” didn’t mean “immediately” but “anytime after that moment”. That second quote is an exact quote from my so-called editor.
A lawyer friend sent a letter of demand and I sent it registered mail to the head of the company. Not the editor. Not the editor-in-chief. The guy who actually owned the company. My money was direct deposited into my account within two hours of his receiving it.
So yeah, know your contract law.
Ah, I see you’re looking at a Carina Press contract…or something damn close! Don’t forget that darling sentence in Clause 20 that goes “No such examination shall be made by Author’s accountant upon a contingent fee basis.” So, not only do they have that agreement clause in place, BUT they’re also dictating how YOUR accountant shall operate. Nice.
Contempt. Ouch. And yet, that’s exactly what it is. I walked away from a contract with a clause just like this one in the spring. Haven’t regretted it for a moment, but hadn’t recognized why the contract made me so angry. (Of course, there was also the blank cheque liability clause, but that’s another story…)
Thank you, PG. I’ve been following your blog for a while, and recommending it to every writer I know. Rant on!
I’m glad this was helpful, Sharon.
Once again, you’ve nailed it. Honest publishers do exist. I work with a couple. Can’t say much about the dishonest pubs ‘cuz of the stinkin’ confidentiality clause!
Julia – The stories you could tell.
The next time you’re faced with a confidentiality clause, send me an email before you sign and I’ll explain about a secret passage that no lawyer I’ve ever dealt with has ever figured out.
Here’s to hoping I never find myself in this situation again!
This is a beautiful rant. Thank you.
(Also, I have signed work-for-hire contracts that were nicer than that stuff.)
Beth – You’re right. Some work for hire documents include even more gratuitous insults.
“Such examination shall be at Author’s expense unless errors are found in excess of ten percent (10%) of royalties ***in Author’s favor***, then Publisher shall pay amounts owing for the Work and the reasonable cost of the audit.”
— Wait, I’m reading this to say that the publisher will only pay for the audit if errors are found IN THE AUTHORS FAVOR. That if “errors” are found in the PUBLISER’S favor, the author is still the one paying the accountant fee?
“Yup, we missed some royalty payments. Sorry ’bout that. What? No, we only pay the accountant if the error is in YOUR favor; read the contract. Oh, and you signed something saying that you can’t tell anyone that we stole money from you. So there’s not a lot you can do about it, huh? We’ll get that check for missing royalties out to you right away. Really. *snicker*”
Am I misreading this?
My expectation is the errors are pretty much always in the author’s favor but typically not by a huge margin–they “forgot” a few books. They just don’t want to pay unless they really reamed you and the number considered to be reaming was placed at 10% for whatever reason.
J. – I don’t have enough data, but most experienced authors I’ve dealt with might think the errors are in favor of the publisher.
You’re right about the purpose of the percentage. It’s to avoid penalizing the publisher unless it’s a big error. Personally, I usually recommend changing it to 5%. With computerized accounting and inventory control, I think a publisher should be closer than that.
I think we’re dealing with more poor draftsmanship. I read the clause to mean that the author pays for the audit unless his/her accountant locates errors that lead to a finding that the author is owed at least 10% more than was paid.
The last part clarifies the ambiguity: Publisher shall pay amounts owing for the Work and the reasonable cost of the audit.
Good catch, though.
I work mostly with small presses (or imprints) and the thing I see is basically lazy contracts. Nothing like the landmines you describe, just using the same boiler plate over and over. Of course they don’t feel confident with changing it. The biggest problem I see is the reversion of rights clause. A lot of them still define “in print” as “being widely availible for sale.” Not so helpful in an era of ebooks and print on demand!
Can I ask your idea of a out of print clause that’s fair to both sides?
PG has a great post here
http://www.thepassivevoice.com/05/2011/how-to-read-a-book-contract-minimum-wage-for-authors/
Thanks!
I can see the characterization as lazy contracts in some situations.
I think the most reasonable OOP clause is one that’s based on royalties paid. I did a post last May called Minimum Wage for Authors that describes it – http://www.thepassivevoice.com/05/2011/how-to-read-a-book-contract-minimum-wage-for-authors/
UPDATE: It’s time to go to bed. Livia posted the same link a couple of comments earlier. I think my brain needs its own resident scientist on call 24/7.
I *love* this post. I’m a lawyer, and I’ve written a number of contracts over the years, and read many more.
It has always amazed and saddened me the way writers are treated by their publishers.
When friends have asked me about what a fair publishing contract is — though it’s a field I never worked in — I just have to shake my head. The way a typical publishing contract is written, it is so one-sided as to be absurd. There is no negotiating, because there is no respect. If one writer gives up in disgust (which they never did, until now) and another ten will be along in a minute, hats in hand, asking to be signed up for a pittance.
Thanks, Patrice. I appreciate your perspective.
The contracts really seem like they’re from an alternate universe.
This cancerous contempt makes me want to run for the hills. I shall stay safely Indie.
When I read the posts on Authonomy of people who are scratching and clawing to get into print and the way they villify Indie writers – I have to snicker up my sleeve.
Occasionally, I will tell them that they are lining up to get fleeced.
Most of the time, I don’t bother. Poor lambs, off to the slaughter and fighting every inch to get there.
Kat – After dealing with a shared monopoly – generally big publishers offer the same royalty rates and terms – it’s nice that authors have a choice now.
Yes, it is.
I’ve got disks full of books and short stories I’ve written over the years – never took the risk of publishing myself until now.
I’ve learned a lot this year.
As a non-lawyer am I right in saying the other implication of the clause quoted appears to be that to audit the publisher, you must agree not to tell anyone else if the publishing company is stealing from you?
Thomas – Your interpretation agrees with mine.
Great post PG. Thanks for the insight, legal and otherwise, you give to us Indie authors.
Thanks, Abel.
Okay, now I am gonna cry because I have friends who sign this stuff all the time.
Please, PG, rant away. If your words sink in one skull and save a writer, that’s a win.
P.S. Your little comment edit app works great!
Thanks, Suzan.
So it’s been kind of a crappy week over here (death in the family and all that comes with that). Imagine my surprise (or lack thereof) when I come to read your latest blog, PG, and find the gem of a paragraph that ends with: “… in any conceivable or inconceivable way and anywhere throughout the world and the universe, whether presently mapped or unmapped.”
I have very rarely laughed that hard, and certainly needed such a laugh this week. Pure, epic win, my friend.
As to the rest of your post, I thoroughly agree; it seems like every author I speak to about my company (GGP) is amazed that a publisher – even a small press – would want to be so author-centric. It’s like they all just expect to be crapped on for their entire career, and are looking forward to it.
This attitude of course makes me want to get the business going even more, if for no other reason than to say that not ALL publishers are contemptible and/or have nothing but contempt FOR authors.
Well said, PG. Well said.
Thanks for your comments, Jason. I know very few businesses who pay attention to all their customers and suppliers that do not succeed.