The Business Rusch: How To Make Traditional Publishing Writer-Friendly
Kristine Kathryn Rusch
A few weeks ago, Sebastian Marshall raised eyebrows throughout the writing community by writing an open letter to Carolyn Reidy, CEO of Simon & Schuster. Marshall identifies himself on his blog as a former entrepreneur who wants to become “the most skilled strategist of our era.” He freelances, and sold S&S his first book in December of 2010 for a $65,000 advance.
The book—which is a business book—had a due date of July 1, 2011. The contract called for payments in three increments. A third on signing, a third on acceptance, a third on publication, but no later than a year after acceptance. Standard stuff.
For those of you who aren’t familiar with publishing, this isn’t a large advance, especially considering the fact that it’s for world rights in all languages. For non-fiction, it’s a relatively middling advance, especially these days. Just so that you have a frame of reference.
His open letter says things went downhill from the moment the deal got made. And by downhill, he means that it took until March to get his final contract. Then he got his signing check six weeks after that.
Here’s the thing, y’all: this is normal. In fact, this is fast for traditional publishing. Amazingly, he got a deal the week before Christmas (it almost never happens). Then, factoring in the winter holidays, which were relatively short in 2010-2011 in publishing time, going only from December 24 to January 3 (meaning no one of import was in the office at that time, if anyone was there at all), the fact that he got his contract in the first quarter after the holidays ended is pretty startling. That’s the quarter it was due.
The book was (is?) clearly fast-tracked.
The six weeks from signing to payment might not be the publisher’s fault. They might have paid quicker, but the money had to go through an agent. Marshall didn’t say whether it took six-plus weeks for the check to arrive in his account or in his agent’s office. (I have had no agent who could cut a check within a week. Most took two, and one of the major agencies I was with took almost a month to cut a check. That’s right: they held onto my money for a month for no real reason except “policy.”)
So when I first read Marshall’s piece, I had the same thought his agent and editor had: He’s new. He’ll learn.
Then I read what he had to say. Really read it.
In addition to the payment issues, he ran into another feature of publishing. Remember his business book got purchased because he’s a good businessman. In particular, he knows marketing and marketing strategy. So right after the book sold, he talked to the entire editorial team about his marketing ideas.
And the publisher didn’t implement a single idea. Again, not unusual. Really, not. Except that someone kept giving the poor man deadlines to meet marketing goals as well as to write his book. For ideas no one planned to implement. That was just cruel.
But, folks, it’s normal for the editorial team to make marketing promises, and then go to the marketing team, only to have the marketing team reject those promises. Marshall calls S&S out on that, not realizing that the entire industry is this way.
“Here’s the thing—it’s the year 2011, and you guys lack basic technology calendaring. Your editors don’t work with your marketers. There’s no rudimentary project management in place. There’s no consistency or fairness or transparency in the author’s contract process. You guys don’t keep your own promises….I think the system is the problem, it’s broken, and it should be fixed.”
Yep. That’s right. For more than ten years, my husband Dean Wesley Smith and I have taught professional writers how to work inside that system because it’s crazy-making if you don’t understand it. A single writer can’t change it. And if there weren’t alternatives these days, I would shrug and write off Sebastian Marshall as a guy who needs to learn how the business works.
But he’s not just some new writer who needs a clue. He’s a businessman who understands how to make businesses efficient. And he’s aware of what’s going on in other businesses, and the other options in his new business of writing.
And in this piece he writes something very important. He writes:
“I think you really ought to speed up. It’s not so hard. Modern businesses run fast, there’s people who know how to make that happen. Three months from agreement in principle to contract, followed by a six week breaching-of-contract delay? Not okay.”
You really ought to speed up. Modern businesses run fast.
They do run fast. Traditional publishing does not. It runs on 20th century time. Early, pre-computer 20th century time. For example, in today’s mail, Dean just got an advanced reading copy of a book he agreed to blurb, a book with a publication date of 2013. (You read that right. 2013. Spring. Eighteen months from now. And the book is done except for the proofing.)
Now realize as you read Marshall’s post, that nothing has gone wrong. His traditional publishing experience is—by traditional publishing standards—a damn good one.
He got a nice advance, he’s been treated well by the Simon & Schuster editorial department, he got a contract in the usual period of time, and he got paid relatively quickly in New York publishing terms. But this is a man who is used to working in the modern business world, and the experience he’s had has left him feeling angry, disrespected, “ignored, lied to,” “jerked around,” and oh, so much more.
He writes, “I’m a hell of a lot less sensitive than most artists; I’m not even an artist, really.”
And the kicker—for me, the truth to what he was saying—is this: “Most artists aren’t businessmen. So they’ll stay afraid, desperate, clinging to your company like a life-raft in a sea of obscurity and toil.”
Oh, boy, is that true. Oh, boy, do I want that to change.
Because we are in the midst of a huge change, a gigantic change, one in which we writers can essentially say, Take this crap you’re tossing at me and shove it.
We can change the industry from within, as long as we start demanding respect.
My initial attitude toward Marshall’s post was part of the problem, not part of the solution. Because he’s right. And the kicker is that he has been right for as long as I’ve been in the business which is (guessing) probably as long as he’s been alive.
The way that traditional publishing works is just plain ridiculous.
And we, as artists, don’t have to take it any more.
The nice thing is that we also don’t have to leave traditional publishing to change things. If more of us who dislike how traditional publishing operates remain in traditional publishing, even part time, then we can change things for those clueless writers who will never understand that they deserve some respect.
1. We make one-book deals.
Yes, yes, I know. Traditional publishers will offer you a lot more money for multibook deals. And isn’t a multibook deal security for the writer in a tough publishing environment?
In a word: No.
Right now, publishers are trying to lock up every single right they possibly can. They’re trying to lock up as much product (read: your books) as they possibly can for the best deal that they can possibly get.
If they successfully publish your first book with their company, then sign on for the second. Then if they do that well, sign on for the third.
Give them an incentive to court you. Make them work to keep you in their publishing house. They see it as security to have as many books under contract as possible, just like writers used to.
Do not give them that security.
And don’t believe the hype—from them or your agent. Your agent, by the way, will want the multibook deal. Why? From their business perspective, the multibook deal makes more sense. They get guaranteed money over a long period of time (15% of what you make). They don’t have to work for that money after the initial deal is completed.
Sure, they might have to make a phone call or two, track down a check or two, maybe nudge someone in the publishing house once or twice, but after that, the agent doesn’t have to do anything.
Compare that with renegotiating a deal every year, and running the risk of having the author walk away from that deal if the deal isn’t to the author’s liking. Twice the work for (maybe) half the pay. If you were an agent, which deal would you argue for? The multibook deal, of course.
So your agent, with skin in the game, cannot be trusted to advise you on this one. Trust me. I don’t know you. I have your needs as a writer at heart.
One book at a time.
If you don’t believe me, go back to my post called “Writers and Traditional Publishing Companies,” and look at what happened to Dr. Yvonne Thornton. Ask yourself, would you want to have a multi-book deal in her situation? The publishing company still exists after all, and they just might hold her to the contract, if the sales of the first book are good enough.
It’s better—and easier—to leave a company if they do badly with a one-book contract than it is with a two- or three- or ten-book contract.
Besides—and here’s the best part—if your one book does really really well, then you can negotiate for better terms on the next book. And even better terms on the third book.
You can’t do that with a multibook contract.
Ultimately, though, the one-book contract makes everyone act responsibly and stay on their game. If the publisher drops the ball, then you can walk—either to another publisher or to self-publishing.
If you drop the ball, then the publisher doesn’t have to work with you again. Really, it’s a win-win for both you and the publisher (although not for the agent). It’s not the way that things are done, but it’s the way that things should be done.
So hold out for your one-book contract and then….
2. Negotiate the hell out of that contract.
Note I use the word “negotiate.” According to my handy dandy Encarta World English Dictionary, the word “negotiate” means “to attempt to come to an agreement on something through discussion and compromise.”
Discussion and compromise does not mean accepting the deal that you are offered because you’re afraid you’ll lose the deal. Nor does it mean fighting to the bitter end on every tiny unimportant detail.
You must figure out what the important details are to you, and then you must negotiate—either through an intermediate (agent, attorney) or on your own. Do not skip this step. Always negotiate, and do so from a position of strength.
If your agent tells you that he doesn’t even want to attempt to negotiate certain parts of the deal that are important to you, then fire the agent. Or, if you don’t want to fire him, then take him off this deal, do not pay him 15% of this contract, and hire an attorney to handle the rest.
You can shepherd a negotiation, even if you aren’t talking to the other party. It’s not easy the first few times—in fact, it can be nerve-wracking—but you can learn to do it. If you’re scared of this and it makes you take bad deals, then look up the chapters on negotiation in my Freelancer’s Survival Guide. You can find them for free on this website, in the entire book The Freelancer’s Survival Guide, or in a short e-book called How To Negotiate Anything.
As for what you want from this deal, well, that will vary according to the reasons why you’ve gone into traditional publishing. Some writers might want an excellent e-rights percentage; others might not care so long as they have a huge advance with very few payouts.
Do make sure that you have a time limit on how long the publisher can exercise the rights in this book. I would suggest that the time limit is firm—three years, five years, ten years—and after that the contract terminates and must be renegotiated.
I used to say that there should be a “speed limit”— a certain number of books sold in a six-month period. But as an indie writer pointed out to me a few months back, all the publisher has to do is put the book up for free for a month, and that target will get hit. A financial limit—the book must earn $200 in royalties paid to the author (not against the advance, which should be earned out) in a six month period—does not work either, because that simply becomes a fee for keeping the book.
Nope. Give the contract a firm end date, with a promise to renegotiate on the same terms. That will stop any publisher from keeping a book “in print” and holding onto the rights to that book, effectively, for the entire term of the copyright.
The more of us who make this clause non-negotiable, the more the publishers will have to eventually cave in. And you bestsellers—yeah, you guys, the ones with a lot of clout—do this. You’ll help the rest of us, and you’ll help yourselves. You will now have an escape route from a bad publishing company, one that disrespects you or has decided that your book is no longer worth their time and effort or one, like Yvonne Thorton’s above that might hang onto the book even though the book line and all publishing support has vanished.
One more thing: Do not sign a contract with a non-compete clause in it. That means anything masquerading as a non-compete clause. Those clauses do everything from tie you up, and prevent you from writing other books in your most profitable series, to preventing you from writing anything at all.
And if you think you avoided these non-compete clauses because you haven’t negotiated a contract in a few years, think again. In the early 1990s, publishers tried to get me to sign non-compete clauses. I spoke to a writer last week who believed that non-compete clauses were boilerplate and couldn’t be negotiated away. (I wonder: Did the writer’s [truly incompetent] agent say that? Or did some editor way back as part of the negotiation? Either way, the poor writer believed it and has signed contracts with that clause for fifteen years.)
As you try to negotiate anything, you will hear your agents (in particular) and other authors telling you that negotiation is a bad idea. That you should be grateful to get a deal in this current publishing climate. If the person telling you this is your business advisor, this person should be fired.
A contract negotiation is a negotiation and should be treated as such. The writer has as much right to get terms important to her as the publisher does. Compromise where you can, but…
3. Walk away if the publisher refuses to budge on important matters.
I know, that’s a scary thought, especially for those of us who came of age in the bad old days when walking away from a deal meant that the book won’t get published. If you’re a bestseller, you will find someone else to take the property.
If no other traditional publisher is interested, consider self-publishing.
Here’s the truth of it, though: If you walk away, and the publisher really, really, really wants that book, the publisher will chase after you. The publisher may not offer what you want. The publisher might offer a compromise, which you should consider. But…
4. If you don’t like the terms, don’t sign the deal.
It’s that simple. You have other options now. Make it clear to the publisher that you know you have other options, that you and this publisher are a team, and that they must behave as part of that team, not as the king of the publishing world. If they don’t respect you, then don’t work with them.
5. Once your contract is signed by both parties, it’s final.
These are the terms you’ve both agreed to. Both of you. Not just you, but the publisher as well. Until the publisher signs the contract, you do not have a valid contract. So if you change your mind between the time you sign the contract and the time you get the counter-signed contract in return from the publisher, you can back out of the deal.
Realize, however, that the publisher might simply sign that contract and send it to you at the moment you try to back out. But always be conscious of the fact that you do not have a deal until both parties sign the agreement.
6. Final does not mean permanent.
A contract is a blueprint for your relationship. As such, it has clauses that allow the contract to be terminated. Right now, in most publishing contracts, those termination clauses only favor the publisher. I suggest you add some that favor you as well, whatever that might mean.
Oh, yeah, I already told you: Make sure the contract has a real end date, three to ten years from the date the contract is signed. Believe me, that’s an important one.
7. Keep your contract out until all of its terms are met, and refer to that contract constantly.
An editor friend, now a hell of a fiction writer, once told me that many of the writers in her stable at the traditional publishing house where she worked (some of you would mistakenly call this place one of the Big Six, mistakenly because there are more publishers than six) had the same refrain about contracts:
Those writers said that the only things they cared about in their contracts were the due dates for the manuscript and the payment dates for the advance. Nothing else.
Those writers are idiots. Traditional publishing contracts have ten-to-twenty pages of legalese for a reason. That reason is to define the relationship for both sides. And there is more to that relationship than payment dates and turn-in dates.
But let’s stick to payment dates, for a moment. As Sebastian Marshall said above, “Three months from agreement in principle to contract, followed by a six week breaching-of-contract delay? Not okay.”
I would say “Not okay” is an understatement. How many of you noticed his phrase “six week breaching-of-contract delay”? Hmmm? Any of you? Do you know what that referred to?
The on-signing payment. Which in his contract was due “immediately” upon the signing of the contract. Which happened in March.
The last two publishing contracts I signed with two different publishers both had this in the contract: the first third of the advance was due thirty days after the signing of the agreement. Publisher #1 sent the money in less than thirty days (and has done so on all projects I’ve done with them). Publisher #2 missed that deadline every single time I’ve signed a contract with them. I have always given them an extra thirty days because I like working with the editor, and then I get tough.
In every instance with that publishing company, I have had to notify the company that they are in breach of contract, and I will cancel that contract if I do not receive payment within a week. The publisher scrambles to make the payment—and guess what? It always shows up after I threaten.
In the bad old days, it would have ended there. In today’s market—when that publisher offered me another contract—I said no. I don’t need the headache. Nor do I need to constantly chase payment in what is clearly a company policy of delay, delay, delay.
But breach of contract doesn’t just happen if the company refuses to pay on time. There are clauses throughout every contract that states the contract will be terminated if such-and-such doesn’t happen. Usually such-and-such reflects badly on the author—the book is late, the book isn’t up to the company standards (that’s what “acceptance” means—they have to accept the book to make the next payment, and there are times when publishers do not do that)—but there are other clauses inside the contract that the publisher might breach.
Like not sending royalty statements in a timely manner. Like not having open accounting practices. And on and on and on.
If you have a question about your relationship with your publisher, go to your contract first. And if the publisher is in breach of that contract, then write a polite letter asking for whatever it is that they haven’t done. If they still refuse, then notify them that they are in breach of the contract and that you will terminate the contract if the publisher does not rectify the situation according to some timeline that you give them.
Once again, literary agents—who generally do not have a legal education—often refuse to do this stuff. Agents are terrified of pissing off publishers. So if your agent refuses to handle this, hire an attorney to handle this part of the negotiation. And if your agent actively fights you on this, cancel your relationship with them, and use your attorney to cancel that 15% payment to the agent as well.
8. Contracts can be amended.
“Amended” as in changed. Usually this happens in the form of an addendum that both parties on that contract sign. Again, that means a negotiation, usually a negotiation to change some term in the contract.
Although lately, publishers have been sending out amendments to their contracts like crazy—and I’ll wager most of you professional writers reading this signed those amendments without understanding them, probably on the advice of your agent.
Never do that again. Seriously.
Because what the publishers have been changing is the e-rights clause of your contract, usually to include more rights for a worse deal to the writer. Most writers haven’t even checked that addendum the publisher sent against the original contract (if the writer could find their copy of the original contract). Most writers signed away rights and didn’t have to.
I got three such addendums in the last year, all amending different contracts I had signed—one on a contract that was signed in 1995. I refused to sign all but one of them—the one signed in 1995. And that was because the publisher’s dumbass lawyer didn’t understand a work-made-for-hire contract, and gave me more money than I was entitled to, granting me more rights in the contract, by using a boilerplate that had been designed for an original works contract, not for a work-made-for-hire contract.
(And if you didn’t understand any of that previous paragraph, then get yourself a copy of The Copyright Handbook because you need to understand this stuff. Writers don’t sell books or manuscripts or stories. They license copyright.)
Anyway, by refusing to sign the other two, I caused the legal department of those publishers no end of headache. They wrote me letter after letter. One even threatened me. Another said they would cancel my contract if I didn’t sign. I smiled—because I wanted that contract canceled—and said, “Okay.” And dammit, they didn’t cancel. They just moved on, and I still have the excellent rights deal I’d had for more than a decade.
Because I read and understand my contracts.
Now, please note that I do not have a law degree. I am not a lawyer and I do not play one on TV.
But I follow one simple rule in business: I do not sign anything that I do not understand. And by understand, I don’t mean that someone explained it to me in general. I have to understand every word as it relates to every other word. Believe me, in contracts, that’s important. Because every word is important.
Going back to amendments and addendums. Publishers aren’t the only ones who can amend a contract. You can too. You can send an amendment as an addendum to your contract to your publisher. If your publisher signs that, then you have changed a term of the contract. (Of course, you would work with a lawyer to draft the proper language.)
If you don’t like something in an old contract, folks, and you can’t find a way to cancel that contract, see if you can find a way to amend that contract. If you’re willing to do the work and to be a squeaky wheel, you can always find a way.
9. Stop being grateful and stop being a victim.
You no longer have to be grateful that some publisher condescended to buy your book. You have other options. You might never use those options, but they should remain on the table in a negotiation at all time.
Under no circumstances should you ever, ever, tell your publisher that you would never self-publish. Even if it’s true.
Never ever ever.
Because they need to think you’ll take your golden goose and run at any point in a negotiation. They need to know that you know that traditional publishing is not the only game in town.
And don’t ever accept terrible contract terms because you have to get published. Those days are over. Most self-respecting writers never acted like that, but too many did.
It’s time for all writers to stop being victims of their publisher and to start acting like the powerful people that they are.
10. Be businesslike in all things.
Business is not personal. It’s not about friendship and “marriages” and trying to avoid making the other party mad. It’s about making an alliance to do something.
In the case of publishing, you—the content creator—are making an alliance with a traditional publishing company to publish—and distribute—your book to readers.
Nothing more. It doesn’t matter if you like the people at the publishing company or if they flatter you a lot.
You should always act in business as if the people you like will be fired tomorrow and replaced by some draconian person with no soul who is out to crush you. If your contract protects you from the draconian person with no soul, then you have a good contract.
If your contract is contingent on the nice people whom you like keeping their jobs, then you have a bad contract.
Yeah, yeah, I know. You can’t think like that about people you work with. Fine. Then hire a lawyer. Because too many agents become too cozy with the publishers in New York, and have that same bad attitude. (“Don’t worry. Those nice people at Traditional Publishing House A will take very good care of you.” Not.)
In this new world of publishing, writers finally have options. We don’t have to settle for the 20th century ways of doing things.
Sebastian Marshall is right: traditional publishing treats its writers badly and is badly run. But sometimes, we writers want to do business with traditional publishers.
So we have to approach them like the dysfunctional companies that they are. We have to protect ourselves, and we have to be willing to walk away when the deal is harmful to us and our careers.
That’s a sea change, folks. That’s an attitude only a few of us had in the past. Now all of us should have it. All the time.
If we all negotiate our contracts from a position of strength, then the publishers will move toward us. They’ll give us better contract terms, and treat us better.
They’ll have no choice. They’ll need to accommodate the writers in order to have product.
You don’t have to self-publish to be part of this new world of publishing.
You just have to stand up for yourself.
These blogs have given me the freedom to say things that, in the past, I only told students face-to-face. Can you imagine me getting this chapter into a book on traditional publishing—published by a traditional publisher? Of course not.
So if you find these blogs helpful, if you’ve gained something useful out of what you’ve read, please leave a tip on the way out. The blogs take a lot of time from my full-time gig, which is fiction writing, and I need to justify the time spent. Your comments go a long way toward that, and so do the donations.
Thanks in advance.
“The Business Rusch: How To Evaluate A Traditional Publisher” copyright 2011 by Kristine Kathryn Rusch.