From Writer Beware:
It should probably go without saying that you don’t want your publishing contract to include clauses that contradict one another.
Beyond any potential legal implications, internal contradictions suggest a publisher that either doesn’t understand its own contract language well enough to spot the problem–or a publisher that simply doesn’t care. Neither is a good sign for what lies ahead.
Contradictions can be tricky to spot, especially for first-time authors who aren’t experienced in contract legalese. Here’s an example that came across my desk recently: an anthology contract from Dark Lake Publishing that provides for rights reversion 12 months after publication:
(Side note: this is a crap reversion clause, since it not only allows the publisher to keep publishing indefinitely, but doesn’t say anything about paying for that privilege. That’s not the issue I’m highlighting in this post, however.)
The wording of the clause seems pretty clear, right? All rights other than publishing rights–and this is an all-rights contract, with the publisher laying claim to “all Intellectual Property Rights subsisting, either in present or in the future, in the Book in all formats”–return to the author 12 months after the contract’s effective date, which is the date of publication. But just a few clauses down, there’s this:
But…but…if all rights other than publishing rights revert after 12 months, how can the publisher lay claim to dramatic rights for two more years? It’s a clear internal contradiction.
In practical terms, there’s probably no impact: this particular publisher has about as much ability to exploit dramatic rights as I do of space touristing to Mars. But what does it say about a publisher that it either hasn’t spotted the cognitive dissonance, or is perfectly fine with it?
Another example I’ve seen recently involves royalties. This contract from Fractured Mirror Publishing appears to be planning to pay both twice a year and once a year:
Here’s more confusing royalties language from Beacon Publishing Group, which first promises to pay based on Net Receipts, but then cites percentages of retail price (guess which one will appear in your royalty check):
Another example: serial reading/writing app Popink, whose contract appears to extend for a limited term, but includes a Power of Attorney clause at the end of the contract that claims rights for the duration of copyright (you can read more about Popink’s awful contract here).
But the internal contradiction that I see most often, and most consistently, involves copyright: contracts where the grant of rights explicitly transfers copyright to the publisher, while further clauses acknowledge copyright retention by the author.
Here’s what I’m talking about. These clauses are from the contract of Histria Books.
The key wording here is “exclusively grants, assigns, and otherwise transfers to the Publisher…all right, title, and interest in and to the Work…including but not limited to all copyrights therein”. Whenever you see language like this, it means that you are agreeing to give up ownership of your copyright.
Histria’s contract includes language allowing for termination by the author under certain circumstances, so the copyright transfer is temporary rather than permanent (which doesn’t necessarily make it a better deal). However, when you transfer your copyright to someone else–even temporarily–that someone becomes the owner of all your intellectual property rights, without exception, for as long as the transfer is in force, and can do anything it wants with them, from licensing rights to third parties to creating sequels, spinoffs, and derivative works.
So you have to wonder why Histria’s copyright transfer language is followed by this:
In a contract with a conventional grant of rights–one that does not include a copyright transfer–you want to see such a clause, to make clear that the publisher can’t claim any rights that haven’t been specifically mentioned. But Histria’s contract does include a copyright transfer, which means that there are no rights remaining that can be reserved to the author. If not outright contradictory, this clause is certainly inconsistent. But then there’s this:
But wait–didn’t the Grant of Rights make Histria the owner of the copyright? So why would it register in the author’s name? To do so would be to acknowledge the author as the copyright holder, since copyright registration is made in the name of the copyright owner.
(Side note: what the hell is meant by “material contributed by the author to the Work”? Wouldn’t that be, hmmm, the work itself, given that the author wrote it? Even if nothing else in this contract were problematic, this bizarre wording would demand an explanation.)
Finally, there’s this–a pretty unambiguous acknowledgment of the author’s copyright ownership:
Bottom line: multiple clauses in Histria’s contract are inconsistent with or directly contradict the copyright transfer in Clause 1.
I have no idea what the legal ramifications are here. If there’s a dispute, whose ownership would prevail: Histria’s, per Clause 1, or the author’s, for which registration in their name provides prima facie evidence? Regardless, such inconsistencies really should not exist in a publishing contract, and their presence raises the questions posed above: does the publisher not understand its own contract? (Not a good sign of professionalism or expertise.) Does it just not care? (Ditto, and you have to wonder what else it doesn’t care about). Worth noting: I’ve heard from authors who contacted Histria about the copyright contradictions, and were brushed off.
Link to the rest at Writer Beware
The author of the OP is Victoria Strauss. Her bio doesn’t mention anything about law school, but PG’s assessment is that she’s smarter about contracts than quite a few of the attorneys he has dealt with over the years.
While a single blog post could not cover all of the dishonest/stupid/evil/clumsy provisions that have appeared/currently appear/will appear in publishing contracts, all authors should read the entire post by Ms. Strauss, save a copy of it for future reference, and review the contents of the post if they receive a publishing contract, solicited or unsolicited. No single post could possibly contain all the gotcha’s that appear in the universe of business contracts, the post demonstrates some good techniques for examining a contract.
Although PG doesn’t review contracts any more (except for Mrs. PG), during his centuries-long legal career, he examined contracts from the largest tech companies, the largest banks and the largest publishers from various parts of the globe. Ditto for medium-sized and small techs, banks and publishers. Plus contracts from a whole bunch of other business organizations and a few non-profits.
Publishing (and a few literary agency) contracts stand out for their audacious mistreatment of the counterparties (authors). In PG’s experience, the only industry that approaches the nastiness of publishing contracts is the movie/TV/music business.
PG notes that traditional publishing and the entertainment industry share some common traits, including the practice of the talent employing agents, only a few of which have any legal training or experience at all.
Both publishing and entertainment feature:
- quite a few insecure individuals among the talent
- a business in which most of the would-be talent does not find success
- a talent pool which is full of people who hold down some sort of job to support themselves and pursue their artistic dreams on the side
- a few superstars that haven’t learned much about managing their finances
- a good chance of a boom-and-bust career path, e.g.one-hit wonders
2 thoughts on “Publishing Contracts 101: Beware Internal Contradictions”
A couple of years ago I was pitching an idea for a book that is more commercial than my usual stuff. I found a small publisher who was interested and sent me their standard contract. It was disastrously amateur-hour. I have never quite decided whether it was the product of incompetence or of malice. I drafted a cleaned up version, keeping the substance unchanged as much as possible, and sent it back as a draft. The publisher (this was a very small operation) got extremely huffy, claiming that this was a standard contract lots of publishers use, and that his wife was a high powered attorney who had signed off on it. We have not had any contact since. Whether incompetent or malicious legal draftsmanship, this clearly was a bullet dodged.
Soon after that I signed a contract with a university press for a more academic project, which has taken my time. The manuscript is nearly complete, so I will dredge this up again. Why not self-publish? There is a market for self-published books: genre fiction. This isn’t that.
In this shark’s unfortunately extensive experience with the entertainment industry and its publishing practices — and, more to the point, his unfortunately extensive experience with conduct by talent representatives (agents, managers, etc.) that would constitute disbarrable incompetence on a weekly-or-so basis if done by a lawyer — just about everyone seems to rely on the headings in determining what part of a contract is relevant. Notwithstanding the oft-included (and part of the common law in NY!) provision that headings and captions don’t have independent meaning, but are for convenience.
What one tentacle grudgingly gives is taken away by the other nine is the default. Not always intentionally — sometimes it’s merely malicious incompetence/neglect — but by effect. There’s no baggage here (but confidentiality requirements prevent me from backing the 22′ rented truck full of documentation up to Casa PG). And H’wood and N’ville are far, far worse; just consider exactly how the parties in 2Live Crew (a/k/a Campbell v. Acuff-Rose Music, Inc., 501 U.S. 569 (1994) came to be who they are, which one can determine only by going all the way back to motion practice in the trial court and reading between the lines.
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