The Business Rusch: How To Make Traditional Publishing Writer Friendly

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.

He writes:

“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.

Here’s how.

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.

Period.

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.

Both parties.

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.

Finally,

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.

That’s all.

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.

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 “The Business Rusch: How To Evaluate A Traditional Publisher” copyright 2011 by Kristine Kathryn Rusch.

 

 

 

 

 

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41 Comments

  1. All excellent points about contracts, especially the one about not signing anything you don’t understand. It’s because of this that I decided not to participate in the 2012 Amazon Breakthrough Novel Award contest: the grand prize is a $15,000 publishing deal with Penguin…which the author must accept “as is” and cannot, under the terms & conditions of the contest, negotiate for a better deal. Considering how merely submitting to the contest grants Penguin “first publication rights” until the contest has been decided, I wonder whether the grand prize winner even has the option to walk. Even though I don’t expect I’d be a grand prize winner, I think I’ll keep my options open, thanks.

    Reply
    • Good for you, Joe V, making that decision before you entered the contest. That’s the time to do it. Good post.

      Reply
  2. I used to be in marketing. A decent business person would welcome a well-informed person to negotiate with, because it’s always easier when you both know what you’re talking about. It’s telling that all the advice given about negotiating contracts comes from outside the publishers.

    Reply
    • Exactly, Lynne. That’s why, when I came into the biz, editors used to recommend that writers get an agent to negotiate. The editor wouldn’t recommend an agent, just someone experienced. That’s changed too. And I think the writer needs an experienced negotiator who knows contracts, not one who can sell a book.

      Reply
  3. Great post, Kris.

    I read that guy’s post back when he first wrote it and found myself in total agreement with his assessment, though I’m sure there is mitigating data on the other side. Maybe. For instance, many businesses use a buffer period for their accounts payable. 30 days, 45 days – these sorts of things are not out of the box really. Heck, Amazon delays 60 days for kdp payments. So his 60 day wait for his check is, as you say, not beyond the pale. The question is how did the contract stipulate it? If it said immediate and that’s it, he’s got a point. If they stated what their accounts payable delay is, and 60 days was within that window, that’s not a problem at all. Alas we don’t have that information.

    Interesting to see your thinking changing about the definite end date for a contract. That struck me as a good idea, for the reasons you mentioned but also for another. Right now, there isn’t really an incentive for publishers to be prompt in getting the book out there. But if they know up front they have only 3 to 5 years (10 seems a little excessive to me) in which to make a profit, that should serve to light a fire under them to get the book out there pronto. If they’re smart.

    Once again, though, I find myself wondering why I would even want to go there in this day and age, though. Yes, yes. Diversification. Getting paid to have my work advertised. But man, it just sounds like such a pain in the arse. Frankly, about the only thing motivating me to consider sending a book out to publishers right now is so I could go onto Absolute Write, Kindleboards, et al and shout from the rafters that yes, a no name guy or gal like me CAN get a book deal without an agent. DWS and KKR aren’t preaching things that they can only do because they’re big names. So there! But maybe that little satisfaction wouldn’t be worth the pain and annoyance involved in doing it.

    Anyway, thanks as always. :)

    Reply
    • Exactly, Michael. The timeframe is important for a variety of reasons. Great point.

      Reply
  4. Great post Kris! Big publishing has forgotten that writers should be treated as valued clients – after all they produce the product. In my opinion the next 10 years are going to be transformational for the industry (and it has already begun). A big part of that transformation should be a focus on partnership between writers and publishers. We’re looking forward to it!

    Reply
    • I completely agree, Stoneforge Press. I do think that the transformation will be interesting to watch. I’m looking forward to it too.

      Reply
  5. Good stuff, and all true in my experience. I’ve fund that some publishers pay on time, and others pay on complaint. It’s as if they intentionally wait until I ask for the late payment, and from their view, I suppose this makes sense. But it bites for the writer.

    The one thing I have no idea how to change is this:

    They do ran 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.)

    Publishers must have inventory, product, scheduled for the next year to a year and a half. It’s the only way to ensure they never get caught short. Whether a book is ready for publication is moot. There’s a queue system, and you can only release so many books each year, or you harm all the books, except those by top sellers.

    A publisher must have books that will be published well down the road, and I see no way to change this, or the fact that new writers without a great sales record will always be at the end of the line, unless the publisher has solid reason to believe a book by one of those writers is going to be a monster bestseller.

    But publish a book right now just because it’s been proofed and is ready to go means pushing another farther down the queue.

    As for time frame, I don’t think publishers are slow in paying or inefficient because they follow 20th practices, but because the longer you can hold onto money, the better off you are. You don’t want to withhold money until you get sued, or until those you owe stop working with you, but money you have works for you, and money you pay out works for someone else. And, of course, money you have draws interest for you, and money you pay out does not. Interest form one advance might not mean much, but interest from a hundred does.

    Simply put, if the people publishers owe, the writers, are not willing to stop working with a publisher because money is a month or two late, then why on earth would publishers not hold onto the money as long as possible?

    Damned few writers are willing to cancel a contract because of payment that is delayed a month or so, or willing to stop writing for that publisher altogether because of same, and publishers know this. Efficiency to the writer is not necessarily efficiency to the publisher, and, sadly, it isn’t so much that publishers are being inefficient as it is that publishers simply know the nature of the people they owe.

    Reply
    • James R., no sensible publisher should have a book completed 18 months before it’s due to be published. None. The book might be tracked to be published 18 months from now, but believe me, when all the work gets done early, the book gets abandoned by the publisher by the time it comes out. Because the book gets forgotten. When the proof arrives a lot happens in-house, things that don’t get triggered otherwise. So I stand by the note: It’s stupid.

      And also, James, the biz is changing. A publisher can get a midlist book out in 8 months. I have two different publishers (big traditional ones) who are modern and efficient and work on that model. I’ve had others throughout my career who do the same. But since I’ve been involved in publishing–in all aspects except as an agent–it’s my experience that the publishing houses who do things like the one mentioned with the ARC above are having other issues in-house on that book. It’s sad.

      And yes, I know that they hold onto the money because they make money on it. Duh. That’s not my problem–and it shouldn’t be yours as a writer. Your issue should be getting your payment on time–as promised by the contract–so that you can hold onto it as long as possible.

      My entire point in this piece is that it’s time for writers to stand up for themselves and get their money on time, get their contracts enforced, and all the things I said above. When you–a writer–refuse to do this “because other writers won’t” then you’re part of the problem, not part of the solution.

      Really, it’s ridiculous that a writer won’t enforce her own contract like any other business person will. Do you think the publishers will let their distributors stretch out their payments past contract? Of course not. Do you think the editors will shrug when their paychecks are late? Of course not. So writers, if they want to benefit from this revolution and remain in traditional publishing need to stand up for themselves. In all ways. Even if they’re the only writer doing it.

      One other point: a publisher rarely allows a contract to get canceled when a payment is extremely late. They just pay up. If they do allow the contract to be canceled, then there’s a problem and the cancellation is a good thing for both parties.

      Reply
  6. English is not my first language and I may be totally wrong but this post reads between the lines like Mr Marshall made you finally “grok” the situation you knew, accepted and worked around. And now you’re angry at yourself for not shouting it out earlier and you’re venting it here. I don’t mean that insulting in any way, just saying.

    Anyway, your thoughts regarding the contractual clauses make much sense to me, especially the “one book for x years” stuff. I’d add “only paper- and audio-books” (unless excellent ebook conditions are offered).

    I was wondering though, if there is a realistic chance in the pre-contract negotiations to demand a contract with no more than 5000 words or 5 pages, or whatever number? Just to keep out all the bullshit.

    Reply
    • Actually, Frank, the shorter the contract, the more problems it brings. Because then clauses are open for interpretation. Long is fine, so long as you understand it.

      Reply
  7. Your businessman’s reasons are most of the reasons that, with more than 30 commercially published novels, multiple foreign sales, and more than a million books in print, I’ve walked away from commercial publishing to publish myself. My agent has agreed to handle any sub rights offers I get. But I think I can do a better and more profitable job of publishing my work. And I know me. I pay on time.

    Reply
    • LOL, Holly. I’m not walking away entirely, especially from short stories. There you get good terms and great editors Always a plus, in my book. The novel publishers will constantly have to prove themselves to me. But I entirely understand where you’re coming from.

      Reply
  8. As a business consultant with a 50+ year publishing history, I’ve always been astonished that other writers do not know these things you have put so plainly. Clearly, if writing schools are to be relevant, they must require business education, with much more emphasis than proofreading education.

    Take, for example, the fundamental rule that a contract is not a contract unless and until both parties sign. In my half-century, I have negotiated every book contract (more than 50) I have ever signed, and I have NEVER signed a contract that was not first signed by the publisher.

    Signing first is like showing your opponents your poker hand while players are still betting. Ask Dean: is the poker player who shows his/her hand like that a real poker player, or just dead money?

    Reply
    • Exactly, Jerry (Gerald), great point. Add that to your lists, folks. :-)

      Reply
  9. Back when I worked in telecomm, I explained to my the Marketing VP of our company how the book industry worked after he asked how my attempts to get published were going. I explained the process, and he stared at me like I’d grown a second head. “Why don’t you just put together a business plan, collect pre-orders and put the numbers out?” he said. “Because it doesn’t work that way,” I answered. “I don’t know how they stay in business,” said he.

    And now we know how. As a monopoly… until something better came along. And now, badly. :,

    Reply
    • MCA, I just saw a piece on TV (can’t tell you where–CNBC?) on how monopolies work, and how being a monopoly always, always, always leads to abuse and inefficiency. And my reaction was, Yep. Now we’ll see what these traditional publishers are really made of, and who will stay in business and who won’t. It’ll be interesting, to say the least.

      Reply
  10. 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.
    This is the part I’m not clear on, why didn’t he talk to the marketing department? Why waste time talking to the editorial team? I wouldn’t have thought marketing is their speciality or responsibility? Maybe I’m missing something here.

    Reply
    • Guessing here, Rae, but I’ll wager he was told that the editor would be his liaison to marketing, and because he’s not used to the industry, he believed it would work. Dunno though. You might want to ask him.

      Reply
  11. Great article! Clipped this post, and the previous one, into evernote for future reference. Question on the set term clause. How successful have you been with trying to get publishers to agree to that? It seems like something they’d fight pretty hard to resist.

    Reply
    • Haven’t tried yet, Livia. I just came to that idea in July. The contract that was up was with a company that offered a terrible new deal, which I countered on as print only (they can’t do e-books effectively), and they said no (as I expected and hoped). So we’ll see how future negotiations go. But remember: negotiations are just that–a negotiation. Each side should compromise and come to terms that they can both agree on–not just what one side wants or the other side, but something inbetween.

      Reply
  12. Fantastic post, Kris!

    From your keyboard to a million writers’ brains, I hope. The day I started listening to you and Dean—and started treating writing like the business it is—was the day when writing became fun and easy again, along with indie publishing opening up a whole new way to conduct said business of writing!

    Thank you for continuing to educate writers until it sinks in to our thick heads. :)

    Reply
    • You’re welcome, Sam. Point this one out to your friends. I think the more folks who try to negotiate some of these points, the better off we’ll all be.

      Reply
  13. Some of these “war stories” really make me shake my head in disbelief!

    It’d hard to believe that traditional publishing moving so slowly is buisness as usual!

    Now we have another FAST pathway to getting our ebooks out there: Amazon’s KDP Select has just launched to the masses!

    With KDP Select authors make money when readers check out their ebooks from the Kindle library – for free! Granted, the readers need to purchase a membership to Amazon Prime, but the savings will quickly add up to justify the membership fee (I guess this is where the money pool comes from to pay KDP Select authors).

    As someone who also has videos for sale on Amazon, I’m doubly excited, as Prime includes video streaming!

    I’m not sure if Prime includes audio book lending yet, but if not, it should only be a matter of time before they do. Then, that will be another revenue stream for authors! Another FAST-MOVING one!

    Reply
    • Exactly, David. Things are certainly changing rapidly.

      Reply
  14. #2 – I think a lot of people are afraid to negotiate. I left a toxic job and went elsewhere. After a week, I realized it wasn’t for me. However, I needed work. I went into the director’s office and laid out my qualifications and my impression of the job description. I wanted to stay, but not in that job.

    In 2 weeks, I have a $15,000 raise and a department to run. Sometimes, you have to just stand up and say I WANT THIS! You might get 50% of what you ask for, you might get 75%…but that’s a lot more than what you started with – which was “I hate this.”

    #3 — I’m of the opinion that I’ll find another contract if A doesn’t want to play with me.

    “You just have to stand up for yourself.”

    If people would just practice this line, they would be so much happier.

    I’m happy with all of my contracts and I will (and have) called them out when something has not met my agreed upon terms. I have negotiated things that were important to *me.* I landed a pretty deal with ebook rights because I said what was important (fixed time + royalty) vs what wasn’t (other things that people fight over that wasn’t all that important to me).

    I have seen this so many times at jobs. I always get what I want from a job, or close to it, because I ask! I’m not rude, I’m not mean – I just ask things like, “my last job gave me 4 weeks vacation. You are only offering the legally required 2. What can we do to arrange for 4?” Sometimes, I get 4. Sometimes, I got 3. I never got 2.

    Reply
    • Exactly, Krista. That’s why I recommend the negotiation posts. A lot of folks have told me they used the posts to help them negotiate, folks who were usually afraid to do so. The things you have to remember in a negotiation are twofold: the worst thing they can say is no, and the best thing you can (sometimes) say is no. And then compromise. That’s important too.

      Reply
  15. Thanks to your post, I’ve become kind of fascinated with negotiation. I’m one of those people who was once thoroughly unfamiliar with it – all kinds of reason, among them being at the mercy of publishers and other companies – and I keep coloring my fiction with it constantly. If I practice the skills in a fictional context, I might well learn to do it in real life!

    Reply
    • Good idea, Ryan. Practicing in fiction is a great way to practice both–negotiation & fiction.

      Reply
  16. I’m a writing newbie, but I read Marshall’s letter and had the same initial reaction that you did. “Isn’t that kinda normal for publishing?” Then, I thought about it as a former business owner and realized how absurd it is.

    No one operates a successful business this way, certainly not in this day and digital age. I thought the marketing input they asked for and then ignored must have been particularly demeaning.

    I’m going to stick with publishing myself! It may not garner me a 65K advance, but in the long run, I like my chances for success more.

    Thanks for all the great advice about contracts, Kris!

    Elizabeth

    Reply
    • Elizabeth, great thoughts. And you’re right: you’ll probably make a lot more in the long run. :-)

      Reply
  17. @D.S.

    I saw the KDP Select announcement, and I really don’t like the idea of it all being contingent on giving Amazon exclusing access to things.

    Amazon is big enough that doing so isn’t going to hurt _that_ many people, but what about when some books are exclusive to Amazon, some are exclusinve to B&N, some are exclusive to Apple, etc

    Reply
    • David L., the KDP Kindle exclusive is for 90 days. I don’t think that’s a hardship, if you want to try the new system. Publishers ask for that sort of exclusivity all the time. I just did that with Audible on my Retrieval Artist series. It’s a promotion device, and nothing more. I’m sure Apple & B&N will come up with similar systems. It’s the writer’s choice whether or not to participate.

      Reply
  18. Kris, I read all of your posts, and every one has pearls of wisdom. This one, however, really struck home in many ways. I’ve been seriously writing novels for 7 years. In that time, publishing has changed on almost a monthly basis. A contract I signed one year ago for a book that was published this past summer has now been changed for all future authors or future books to include a) a longer time frame before rights revert; b) taking movie, tv, and audio rights (which it didn’t before); and c) expanding electronic rights beyond ebooks. I asked why the company was asking for the rights in b and c, when they had no plans (knowledge or staffing) for exploiting them, they actually admitted that it was just to tie up the rights “in case something took off and got a movie deal.” In other words, they will tie up the rights for every authors books–meaning you can’t exploit them yourself without paying them–on the CHANCE that one author will accidentally be discovered and offered a movie deal. Oy! Obviously, I will not be signing any more contracts with that publisher.

    I’ve also put a sticky note on computer that says “one book” at a time. Like most writers I’ve thought a multi-book contract is the way to go. Lately, I’ve been wondering about that because of the many, many horror stories I’ve heard from fellow authors who lose their editor and then the other books get no marketing; or the series gets dropped after book 1 has shipped and book 2 is accepted (having nothing to do with sell through numbers by the way) meaning book 2 has no chance and the series is then dead. The other thing I’ve heard lately is that the multi-book deals tend to grab more rights, and be less negotiable, than one book deals. Not sure if that’s rumor or truth but definitely something to watch.

    Reply
    • Good points all, Maggie. When people (companies) are afraid, they take everything and run, if someone lets them. The key for us writers is to not let them do it. Ironically, just this week, I got another addendum to another contract, read it, and said no. It’s the retroactive changes that folks really have to watch.

      Reply
  19. OMG! I don’t know what to make of it but here’s Sebastian Marshall’s latest contribute to his quixotic fight against “the cartel”

    http://www.youtube.com/watch?v=hhVJl-OBEY4&feature=youtu.be

    He’s shirtless in it. (is that how twentysomething do marketing now?)

    p.s.

    Kris you rule/rock

    Reply
    • Thanks, DJ. Shirtless, eh? I’m not sure if that’s a recommendation or not…

      Reply
  20. I recently got turned down by a Really Cool Agent, who agents for an author whose works I like, and as far as I can tell, the author and the agent do well together. And I was, unexpectedly, relieved on one point.* See, that agent was cool. (Still is, probably.) And that meant, I realized, that the agent was a hostage. Because if she went out there and hustled the manuscript, and then I decided that the contract was a steel-plated bear-trap and I wasn’t stepping into it… She suffered.

    So unless someone’s already a top-selling author who can take all the blame for being a prima donna while the agent plays “good cop,” then even a good agent, even an agent who would fight for good deals, even one who has your back like a mythical shieldmate… is a potential hostage. (And one, arguably, with a risk of Stockholm Syndrome.)

    Attorneys are looking better and better all the time. They don’t give a flying flapjack if you take the deal or walk away, and they’re not harmed if you walk away.

    (* For the rest of my emotions, my “darn, no mass market paperback hopes” was well-tempered with, “Ooo, now I can go see if that artist I want is open for commissions.” And she is!)

    Reply
  21. Amazon is requireing the book be exclusive for 90 days now, but once they (and the other stores) start down the road, it’s really easy to just extend the requirement a bit, or say that you only get to participate in the lending related handout for X months after making it available through another distributer.

    I would be incredibly surprised if having a printed book be exclusive to one retail store in your contract was something that would be acceptable to you. It’s not just making it exclusive to a publisher, but to a retailer.

    Also, the announcement is incredibly optimistic when talking about how much an author can earn from this.

    The chances of any one title equaling 1.5% of the total borrowing in a month are extremely low. I’d be surprised if even the bestseller books reached that point once the program starts scaling up. 0.15% will probably be doing very well (150 checkouts in a month, I hear people talking about self published books selling in the 10′s a month on average, and exceeding 10x that is probably stretching things, let alone going to 100x that), which would result in a payout of <$750 (or $75 if it's 15 checkouts in a month). this is $5 per checkout if there are only 100,000 checkouts a month. If this grows to 500,000 checkouts/month than an author will only get $1 per checkout.

    Reply
  22. David, there’s a simple answer: if you don’t like the KDP Select terms, don’t join; if you like them, join.

    In my case, I see no benefit — yet — in joininng KDP Select. I currently have one lonely little self-pubbed 99 cent novella available for sale on Kindle. I just asked myself this: if a customer only gets to borrow one title a month, is it going to be a 99 cent novella by some novice? No, it’s going to be some $12.99 mega-novel by a big name. So I expect my likely returns won’t outweigh the potential sales across multiple platforms.

    If I were the big name with that mega-novel, though, I might consider it. Not only is that book likely to be borrowed, but each borrower has a small chance of liking it enough to buy it later. So there’s a real benefit there.

    I do think that right now for a lot of indie authors, Amazon will get more out of the deal than they will; but I don’t think it’s a cut-and-dried case, and I think a lot of people will be happy they joined the program.

    Reply

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