ho handles their mo<\/em>ney?<\/p>\nBut then I realized that one of my best college friends is an attorney. Dean\u2019s best friend is an attorney. Several of our close friends are attorneys, and we both know several judges. \u00a0Dean went to law school and I went so far as to get an application for the LSAT exam that gets you into law school (until I realized that I not only didn\u2019t have the money for the exam fee, but I didn\u2019t have the desire to dig the money up).<\/p>\n
It doesn\u2019t occur to either of us to be afraid of lawyers. I hired one when I was horribly impoverished to get me out of a bad marriage. I look at lawyers as one of those professionals you consult when you have a legal problem, just like you consult a doctor when you have a medical problem.<\/p>\n
I literally had no idea that people are afraid to hire lawyers.<\/p>\n
It explains so very much about the problems writers are having. I\u2019m watching a group of long-term professional writers turn themselves into pretzels, lose tens of thousands, maybe hundreds of thousands of dollars, because they won\u2019t hire a lawyer (either separately or together) to sue an agency that is, through inaction and incompetence, destroying their careers. \u00a0This is why writers\u2019 eyes glaze over when I tell them in person to hire an attorney.<\/p>\n
So with that in mind, I asked Annie to elaborate on her comment in a blog post on her site. Here\u2019s the link. She explains how to hire an attorney. Her post inspired the Passive Guy, an attorney who isn\u2019t currently practicing, to add some thoughts of his own. \u00a0Fiction writer Laura Resnick, who has used IP attorneys to negotiate all of her deals for her for years, has a list of attorneys that she has personally vetted on her website. You can find that along with another post on how to hire an attorney. Really, it\u2019s not that scary.<\/p>\n
Finally, an attorney friend of mine pointed out after reading some of these posts that writers can find the appropriate lawyer by calling the local version of Volunteer Lawyers for the Arts. \u00a0I know that my small town doesn\u2019t have anything like that (my friend lives in LA), but VLA has a website that will help you find an attorney relatively close to you. Plus there is a branch in New York, and if your book publisher is in New York and the contract says it will be governed by the State of New York, then hire a New York based attorney. It doesn\u2019t matter where you live, so long as the attorney is an expert in the kind of legal advice you\u2019re seeking.<\/p>\n
There. Now you have no excuse. Hire an attorney on your next contract. And remember, most attorneys will work with you to keep their fees affordable and to help you figure out how to pay them in a mutually beneficial way.<\/p>\n
Okay\u2026back to our regularly scheduled blog post:<\/p>\n
Last week, I noted that a lot of writers will continue to publish with traditional publishing houses. In fact, most writers will continue to do so, some\u2014like me, with a foot in both the traditional camp and the indie camp\u2014others because they don\u2019t want to go indie at all. If you plan to stay in traditional publishing, then read last week\u2019s blog post before going any farther in this one. They are one long piece.<\/p>\n
Last week, I quickly explained how to negotiate. \u00a0And let me reiterate: just because I told you to negotiate doesn\u2019t mean you have to be the person on the phone haggling. You can hire someone to negotiate for you (see the attorney stuff above), but you still have to guide that person.<\/p>\n
When you negotiate, you should:<\/strong><\/p>\n1. Know What Yo<\/strong>u Want.<\/strong><\/p>\n2. Ask.<\/p>\n
3. Be Prepared to Walk Aw<\/strong>ay.<\/strong><\/p>\n4. Stay Calm.<\/p>\n
5. Never Reveal Your Entire Hand.
\n<\/strong>
\n6. Don\u2019t Flip-Flop.<\/p>\nWhen you negotiate a contract, you should realize these things:<\/strong><\/p>\n1. Expect to Negotiate A Contract.<\/strong><\/p>\n2. Imagine How the Terms of the Contract Will Impact You Over the Lifetime of the Contract.<\/strong><\/p>\n3. Focus on What You Want.<\/strong><\/p>\n4. Make Sure You Have An Equitable Way to Terminate The Contract.<\/strong><\/p>\n5. Make Sure You Know How You\u2019ll Get Paid or How You Will Make Payments.<\/strong><\/p>\n6. Control As Much of the Contract As Possible.<\/strong><\/p>\n7. Once You Both Sign, Negotiation Is Over.<\/p>\n
If you need more information than that, you should get a book on negotiation. As I said last week, I would be remiss if I didn\u2019t tell you about mine. \u00a0It\u2019s a section of my<\/em> Freelancer\u2019s Survival Guide cal<\/em>led How To Negotiate Anything. \u00a0You can read that section online for free on this very blog or you can order the section as a standalone e-book or as part of th<\/em>e gigantic Freelancer\u2019s Guide itself which has a trade paper edition as well as an e-book edition.<\/em><\/p>\nYou should also understand what you are negotiating, and most writers don\u2019t. Writers believe they are selling books or stories, when actually writers license copyright. If that confuses you, get a <\/em>copy of the Copyright Handbook.<\/p>\nAfter explaining all of that, I discussed the changing terms in traditional publishing contracts. I listed five areas you need to watch in the new contracts. Those areas are:<\/strong><\/p>\n1. The Rights You Plan To License.<\/strong><\/p>\n2. The Amount You Will Get Paid For That License.<\/strong><\/p>\n3. The Number of Books You License in This Contract<\/strong><\/p>\n4. Future Projects With That Publ<\/strong>ishing House.<\/p>\n5. The Sunset Clause.<\/p>\n
I covered points one through three last week. If you haven\u2019t seen them, go back and read them now.<\/p>\n
Before we move to the remaining two points, let me give my disclaimer. I am not an attorney. I did not go to law school. I am not giving legal advice here. This is just my opinion. Okay? Got that?<\/p>\n
Let\u2019s move on to the remaining two points.<\/strong><\/p>\n4. Future Projects With That Publishing House.<\/p>\n
Publishers have always tried to lock the writer into that house with something called an option clause. That clause gave the publisher an option on buying the writer\u2019s next book. In other words, the publisher got the right of first refusal on that book, and no one else could see it until the publisher made up his mind.<\/p>\n
Properly negotiated, an option clause benefited the writer as well as the publisher, often by forcing the publisher to bid on the next book long before the first book came out. A bad option clause could prevent a writer from publishing another book for a year or two after the first book came out\u2014and this was in the previous century.<\/p>\n
But agents, attorneys, and most writers learned how to take the teeth out of an option clause. \u00a0And those toothless option clauses remain, which is why I am not calling point four the option clause. Your option clause will probably look fine.<\/p>\n
Instead, publishers are adding something I haven\u2019t seen in almost two decades. It\u2019s called a non-compete clause, and it\u2019ll look something like this:<\/em><\/p>\nThe Author agrees that during the terms of this Agreement he will not, without the written permission of the Publisher, publish or authorize to be published any work under this name or any other, including blog posts, short stories, nonfiction articles, novels, or the like.<\/em><\/p>\nIn other words, the contract will prevent the writer from making a living at his craft. I saw that clause in my first contract with Bantam Books fifteen years ago and hit the ceiling. (The word blog was not in it, of course.) I thought I was going to lose this rather large contract because no way in hell would I sign a document with that clause in it.<\/p>\n
Writers have signed this non-compete clause, however, and have done so recently. I know of at least two mystery writers who need their publishers permission to put up a blog post. I know of several more who have gotten a blanket permission from their fiction publisher to write nonfiction.<\/p>\n
Folks, let me simply say: this clause is ridiculous. It\u2019s there to prevent you from controlling your craft. \u00a0According to that clause, your publisher is in charge of everything you wri<\/em>te, whether the publisher pays you for it or not. Got that?<\/p>\nI have seen other versions of this clause, negotiated by (idiot) agents for their established clients. Those versions usually read something like this:<\/em><\/p>\nThe Author agrees that, during the term of this Agreement, he will not, without the written permission of the Publisher, publish or authorize to be published any work substantially similar to the Work or which is likely to injure its sale or the merchandising of other rights herein.<\/p>\n
This is only marginally better. Seriously. You\u2019re still asking your publisher\u2019s permission to write something. Granted, it\u2019s only under one name, and if your publisher withholds permission, you can start up a new pen name, but seriously\u2026who signs this stuff? And what advisor thinks something like this is okay for a writer to sign?<\/p>\n
Because the problem isn\u2019t with the publisher\u2019s permission. The problem here are two phrases: \u201csubstantially similar\u201d and \u201clikely to injure.\u201d \u00a0Who decides if my funny fantasy novel about fairy tale characters is substantially similar to my science fiction novels about the Moon? They are supposedly in the same genre\u2014sf\/f. Or what about my mystery set in 1968? Is that substantially similar to the mysteries set on the Moon? They are both mysteries after all. And many of my romance novels also have mysteries in them.<\/p>\n
And who determines of those Moon mysteries \u201cinjure\u201d the sales of the 1968 mysteries? Does the fact that I\u2019m also publishing romance, a genre that many sf editors don\u2019t respect, \u201cinjure\u201d the sales of my sf books?<\/p>\n
See the problem?<\/p>\n
It gets worse when you think about who gets to decide. Most writers\u2014apparently afraid of hiring lawyers\u2014will let their publishers decide. Those writers who aren\u2019t afraid to hire a lawyer will find their books, their careers, their livelihoods tied up in civil court, waiting for a judge to decide.<\/p>\n
I have seen several versions of these clauses negotiated to death, with all kinds of phrases added in, but none of them are toothless, and all of them tie the writer\u2019s output to his publisher\u2019s permission. \u00a0For me, this clause is a deal breaker. No one controls my career but me. No one tells me what to write but me.<\/p>\n
You can negotiate this down by doing something like this: \u201cThe Author agrees\u2026that he will not, without written permission from the Publisher, which will not be unreasonably withheld, publish or authorize t<\/u>o be published a novel in the same series as the Work and which would be reasonably likely to compete with the Work.\u201d<\/p>\n
But man, I hate that as well. For example, even though \u201creasonable\u201d is a term defined in the law, who determines whether or not the publisher was unreasonable? A judge, that\u2019s who. And the case would go to court.<\/p>\n
The best way to handle a non-compete clause is to refuse to sign one.<\/p>\n
So\u2026you take the non-compete clause out and you\u2019re in the clear, right?<\/p>\n
Hell, no. Lately these publishers have been adding something in the boilerplate section of the contract (which most agents don\u2019t even read). A boilerplate section is the stuff that should remain the same from contract to contract\u2014you negotiate it once, and it doesn\u2019t change. It\u2019s stock or formulaic language that covers expected things like insurance coverage and Acts of God. \u00a0Some boilerplate can be changed and some can\u2019t.<\/p>\n
In the boilerplate section is something called a Warranty, and in it, you\u2019ll find language like:<\/em><\/p>\nThe Author Warrants that the Work is original, and uses no material from any other source\u2026<\/p>\n
Things like that.<\/em><\/p>\nOnly cagey publishers have started to add this:<\/p>\n
The Author Warrants that she will not publish any other work until this contract is fully executed.<\/p>\n
In other words, the Author can\u2019t publish anything until all the terms of the contract are met. Meaning that she cannot publish anything until the second or fifth or tenth book of the contract is published, and maybe, depending on the wording, not even then. She might not be able to publish until the book goes out of print.<\/p>\n
Seriously, folks, watch out for this stuff. \u00a0Take it out of the contract. \u00a0If your publisher refuses t<\/em>o remove language like this from your contract and you still sign it, you will have no one to blame but yourself for your tanking writing career. Because you put your signature on a legal document giving someone else control of your output.<\/p>\nBy the way, I had an editor verbally assure me that the non-compete clause in one of my contracts wouldn\u2019t affect my short stories. I know the value of a verbal promise when faced with a written legal document. There is no value.<\/p>\n
I made her put her promise in writing. I did end up signing a non-compete clause that wouldn\u2019t allow me to publish another original full-length novel in the same series by the same pen name until thirty days after the book was published or two years from the signing of the contract, whichever came first. \u00a0I still don\u2019t like that non-compete clause, but I can live with it\u2014because I write a lot of series under a lot of names, and I wasn\u2019t planning to write anything sooner than that anyway.<\/p>\n
I wanted the book deal, so I figured out a way to make it work. If I didn\u2019t care about the deal, I would have walked. Had she not allowed me to take the teeth out of the non-compete clause, I would have walked whether I wanted the deal or not. \u00a0I\u2019ve done that throughout my career and I have never regretted it. (I did have an agent \u201cfire\u201d me, though, because I did that. I w<\/em>as told I was impossible to work with because I stood my ground. That\u2019s someone I want to negotiate for me. Not.)
\n<\/strong>
\nFinally, let\u2019s examine the fifth and final point:<\/p>\n5. The Sunset Clause.<\/p>\n
Contracts need a termination clause or else they\u2019re not valid. No contract can exist in perpetuity. This is a difficult dilemma for publishing because if a book is successful, both publisher and author want it to remain in print.<\/p>\n
How do you make sure that the contract has a termination, then? You define it by something other than a set date. (By set date I mean, \u201cThis contract will expire on June 15, 2025.\u201d)<\/p>\n
In the past, publishing contracts ended when a book went out of print. The term \u201cout of print\u201d was usually defined as \u201cunavailable in bookstores.\u201d \u00a0This was well and good when bookstores were brick-and-mortar buildings only, but now they\u2019re online.<\/p>\n
I have one book that I have \u201clost\u201d to Pocket Books because I sold the book before this phrase became common in out-of-print clauses: \u201cA print-on-demand edition will not be considered \u2018in <\/em>print\u2019 for the purposes of this contract.\u201d When I sold the book, Fantasy Life, there was no such thing as a print-on-demand edition.<\/p>\nHowever, Pocket was a pioneer in e-books, and it did have an e-rights clause in that very old contract. \u00a0So I had sold them e-rights, which to me at the time were like selling them Mars rights. Yeah, we might have bookstores on Mars someday, but not in the near future, and even if we do, those rights won\u2019t amount to much.<\/p>\n
Times changed. When I noted that the book was out of print and unavailable in bookstores (including Amazon.com), and asked for my rights reverted, Pocket reverted all rights to me\u2026except North American print rights and e-book rights. Then they immediately put out an egregiously expensive POD version of the book. I had no recourse because of the contract I signed (except going to court). So I asked for the e-rights to be reverted. Pocket refused for two years.<\/p>\n
Finally, I wrote and said if they did not exercise the e-rights immediately, I would have my attorney contact them. Next thing I know, there\u2019s an e-book edition of the novel.<\/p>\n
Because this contract is old and because most of the things that are common in contracts now were impossible to imagine then, I have \u201clost\u201d that book to my publisher. If I wanted to, I could force the issue by taking them to court and making the argument I\u2019m making to you now\u2014and I will, if my e-book royalties aren\u2019t the 50% \u00a0of retail price required by my contract\u2014but until then, I\u2019ll just wait and see.<\/p>\n
I have written a lot of other books.<\/p>\n
Most writers aren\u2019t in the position of having so many books that they can shrug off the \u201closs\u201d of one. These writers need their out-of-print clause to be accurate.<\/p>\n
For most of this century, writers tried to define out-of-print by velocity. \u00a0First, the contract would state that a print-on-demand version was not considered in print, and second, it would state that once the e-book sales went under a certain point (fifty copies\/five hundred copies\/a thousand copies) in a six-month period, the book would be considered out of print.<\/p>\n
But I think that threshold is dated now too, and probably filled with as many pitfalls as my little contract problem with Pocket. \u00a0Here\u2019s what I suggest you do:<\/p>\n
Define out of print this way: The book shall be deemed out of print if, after five years in print, the author is not receiving a royalty check of at least $500 per six-month period.<\/p>\n
In other words, your book has to have earned out its advance, and be paying you royalties of at least $1000 every single year.<\/p>\n
Publishers are loathe to agree to this because it\u2019s not in their best interest. Negotiate on the number of years to recoup the advance\u2014three years, five years, ten years\u2014but never on the money. \u00a0You have to be earning real money on this book for them to hang onto your rights indefinitely.<\/p>\n
Remember, these are my suggestions only. You may not agree with all of these points, or they might not suit you in your current negotiation. \u00a0You are responsible for your own career.<\/p>\n
But, for heaven\u2019s sake, negotiate your contra<\/em>ct. And really, really, really think about what every clause in that contract means before you sign your name to the document. Ask yourself if you can live with the clauses you\u2019ve signed ten or twenty years from now.
\n
\nCan you handl<\/em>e being the only one who isn\u2019t making money off that book? I know of several New York Times bestsellers who can\u2019t make a living wage. Since I know how much publishing companies make on bestselling books, I have to wonder where the authors\u2019 money is going\u2014and what horrible contract they signed in their hurry to be published or to pay last year\u2019s mortgage.<\/p>\nI signed that contract with Pocket Books and thought it good at the time. I\u2019m still living with it, and probably will for years, depending on how accurate the royalty statements are.<\/p>\n
I signed that non-compete clause as well, and we\u2019ll see how that goes. It was a calculated risk. But I understood the risk when I took it. And that\u2019s what \u00a0most writers fail to do. They fail to understand the contracts they\u2019re signing, trusting their agents and their editors to treat them fairly.<\/p>\n
If you expect an agent without legal training to get you out of that first non-compete clause above, I suggest you reread the second non-compete clause, the one negotiated by agents. Then look at my non-lawyerly analysis, and ask yourself how the agent missed that.<\/p>\n
I can tell you: Most agents have a BA in English. Not a JD from a reputable law school. \u00a0Most agents know as much about contracts as you do, and maybe less.<\/p>\n
Scare you? It should. Hire that IP attorney. \u00a0Know what you\u2019re signing. Make an informed decision. And if the publisher refuses to negotiate, run from the deal.<\/p>\n
You have options now, including publishing the novel yourself. Remember that. You don\u2019t have to take a bad traditional publishing contract just to see your book in print. In fact, that\u2019s probably the worst thing you can do. It\u2019ll tie your work up for decades, and you\u2019ll have to go to court to set that work free.<\/em><\/p>\nAnd, um, going to court means you\u2019ll have to hire an attorney.<\/p>\n
Just sayin\u2019.<\/p>\n
It\u2019s been exactly one year since I finished the Freelancer\u2019s Survival Guide and replaced it with the Business Rusch. I\u2019m rather stunned that I made it this far.<\/em><\/p>\nPart of that is because I would rather be writing fiction. I haven\u2019t missed a single week on the Business Rusch. Each post is roughly 3,000 words long (some longer, few shorter), which means that I have written at least 156,000 words on the blog in the past year. I\u2019d love to say that\u2019s 156,000 words I haven\u2019t written in my fiction, but that\u2019s not fair. The crunch of the deadline gets me in here with a headache or when I\u2019m traveling, so honestly, I suspect I only lost about 140,000 words of fiction to do this blog.<\/em><\/p>\nStill, for a fiction writer, that\u2019s quite a commitment\u2014and a heck of a loss. About 1.5 novels worth, if you want me to be honest. So if you\u2019re getting any value from these nonfiction blog posts, please share them with folks who haven\u2019t seen them, and please donate.<\/em><\/p>\nHowever, I do think the discussion here is important, and I am constantly learning from y\u2019all. I think I follow the business news closer because of all this. And I am constantly re-evaluating my own opinions so that I can express them here.<\/em><\/p>\nAnyway, here\u2019s the donate button. Add a tip if you\u2019re getting some value from the blog. Every little bit helps. Thanks!<\/p>\n","protected":false},"excerpt":{"rendered":"
by Kristine Kathryn Rusch (Originally published here on August 3, 2011) Before we get too deep into this week\u2019s blog post, let me point you to a few things that came up in the last few days. Last week, I …<\/span> Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_crdt_document":"","advanced_seo_description":"","jetpack_seo_html_title":"","jetpack_seo_noindex":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1432","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/pgo47c-n6","_links":{"self":[{"href":"https:\/\/archive.novelinprogressaustin.com\/index.php?rest_route=\/wp\/v2\/posts\/1432","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.novelinprogressaustin.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.novelinprogressaustin.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.novelinprogressaustin.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.novelinprogressaustin.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1432"}],"version-history":[{"count":2,"href":"https:\/\/archive.novelinprogressaustin.com\/index.php?rest_route=\/wp\/v2\/posts\/1432\/revisions"}],"predecessor-version":[{"id":1434,"href":"https:\/\/archive.novelinprogressaustin.com\/index.php?rest_route=\/wp\/v2\/posts\/1432\/revisions\/1434"}],"wp:attachment":[{"href":"https:\/\/archive.novelinprogressaustin.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1432"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.novelinprogressaustin.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1432"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.novelinprogressaustin.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1432"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}