Friday, 29 June 2012

5 Publishing Contract Tips and Hints

It seems there are always writers ranting against ‘loss of control’ if they choose to traditionally publish. Any such loss of control will always be governed by the terms of the contract. I am not an intellectual property lawyer, nor a lawyer in the field of publishing, but I am a contracts lawyer, and there are a few basics that are generally consistent across all contracts.

1. Make sure you understand what the contact means. What you think it says, and what it actually means in a court of law, may be two different things, and note also that which court of law is making the determination will also affect the interpretation. A clause interpreted by a US court may not mean the same as a clause interpreted by an Australian court. Generally the contract will identify which country’s laws apply, and of course with big publishing houses this will nearly always be US law, but if you are contracting with a local publisher, it may be the laws of your country of residence.

2. You aren’t expected to know what a contract means – that’s part of what your agent is for. Self-publishers will cite not having to pay an agent as money in their pocket, but an agent is providing a service to traditionally published authors, and contract interpretation (and negotiation) should be one of those services. Unless you make an awful lot of money out of your books, an agent is probably going to be cheaper than a lawyer, or at least won’t charge you a lump sum in advance. Of course the quality of the service will vary from agent to agent, as with all things, but look to your agent for contract interpretation advice and (in my opinion) advice on when you really do need a lawyer.

3. If you don’t like what the contract says, including in relation to creative control, negotiate. Nearly all contracts are open to negotiation on some points, and if you don’t ask, you don’t get. The creative control clauses can range from allowing the publisher to make wholesale plot changes without the author’s consultation to the publisher only being permitted to make minor copy-edit changes. If something’s not mentioned, don’t assume you retain control. Silence is ambiguous, not conclusive. Always ask for more than you want so you have room to negotiate down – it helps, sometimes, to ask for something you don’t want at all so you can give it up.

4. Don’t assume the publisher knows what their contract says or means! This sounds bizarre, but it’s so true and this sin ranges from small to large business. You might think large businesses have their own in-house legal, but even if they do, the lawyers aren’t always approving all changes (even if they are meant to).

I’ve seen contracts cobbled together from other commercial contracts, with managers using a clause because ‘that sounds good’ and with no clue as to what it really means. In big companies, I’ve had the experience of negotiating against contract managers (not lawyers) who may have agreed changes to contracts without running them past legal and then in the future they just trot those flawed clauses out again and again to re-use. Sometimes you can negotiate a change purely because the other party never intended it to say what it actually says!

5. For those of you are self-published authors, rejoicing in the fact you don’t have to navigate this minefield, you’re not necessarily in a better position. If you have a contract with Amazon, you fall in the category of contracts that aren’t negotiable – ‘take it or leave it’ contracts, as I call them. Mass-marketed contracts. Contracts that are not negotiated on an individual basis because they are high-volume, low-value contracts.

Amazon may not be attempting to take creative control away from you, but this particular type of contract, because it is a one-size fits all contract, has been subjected to rigorous legal scrutiny, and you can bet your bottom dollar it is heavily tilted in the other party’s favour. I haven’t seen Amazon’s contract, but I’ve heard it has a few potential nasties in it. Do you know what it says? Do you know what it means? You may not be able to change it, but it’s always prudent to know what you’re in for before signing on the dotted line. The absolute most basic rule of contracts is never, ever sign something you haven't read!
If you missed it, check out why Game of Thrones has been a success while Legend of the Seeker was a total failure here.

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The information in this post is factual information only and is not intended to be a substitute for legal advice.


James Peters said...

Thank you so much. I'm nowhere near to actually getting a contract,but reading about what to do if/when that day ever comes I think is the next best thing.
What a rush.

Amberr Meadows said...

I am anti-"take it or leave it" contracts. Usually it's something that screws you over.

Ciara Ballintyne said...

Thank you :-)

Ciara Ballintyne said...

Me neither, and you're right. Because they don't individually negotiate contracts, they can more easily afford lawyers to make sure this ONE contract is screwed down real damn tight. We've just had legislation passed here governing the terms of these types of contracts and making it unlawful for them to be 'unfair;. What unfair is, though, is less easily determined!

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