The Business Rusch: A Good Offense

After last week’s blog post, I became scared to open my e-mail. Not because I got hate mail—far from it. I got a lot of positive mail. But I also got a lot of sad stories about the scams out there, mostly from people who watched friends succumb.

There have always been scams that suck in wannabe writers. Terrible contracts for professional writers have existed since the dawn of publishing.

I wrote blogs over the summer about deal breakers in traditional publishing contracts, then last week wrote about scams that can suck in writers who want to e-publish but are afraid to do the work themselves. I also wrote about royalty statements that were inaccurate.

The emails I got in response to all of those posts have me quivering in my boots. Literally.

The rise of epublishing, the DYI atmosphere, and the anything-goes corporate shenanigans have led to a perfect storm of awfulness for the unwary writer.

Let me share just a few choice quotes from the e-mails I got over the summer.

From a savvy writer:

A major series imprint, owned by a top-six publisher, sent me an out-of-print letter for a book, which triggered a rights reversion. Then, a few weeks later, came another letter, basically saying, “Sorry for any misunderstanding, but when we said out of print, we didn’t mean that rights reverted because we want to see what we can do electronically.”

I immediately sent off a letter pointing out how they were completely mistaken and couldn’t retroactively change a contract clause….Then I added the official notice that I was taking the rights back….

Fortunately, the writer here didn’t fall for this trick and reminded the company that they had to abide by the contract terms. The writer became proactive and made sure that the rights reverted, going after the publisher continually until the matter got settled.

Then, I got something from a New York Times bestseller who, in the middle of a contract negotiation, was promised 10 and 12.5% royalties on a mass market paperback as a deal sweetener in a contract negotiation. The publisher added this sweetener in lieu of better terms elsewhere in the contract, terms the writer had asked for and the publisher refused. The writer then discovered through another source that the publisher never planned to publish a mass market edition of the book.

In other words, the sweetener became sour. The great royalty rate was only added to get the writer to sign on, not because the publisher ever planned to publish that kind of book. If the writer had been a little less savvy, he would have lost some other positive contract terms by believing that this one was important.

Not illegal or even unusual these days, but still, bad enough to make the writer feel cheated in the midst of negotiating a new contract. Dumb on the publisher’s part, but only because the publisher got caught.

And speaking of negotiation, here’s something I mentioned last week. A lawyer wrote to me about a book contract negotiation (with an unnamed client and publisher—although the lawyer had permission to tell me this) in which the lawyer requested “the addition of a small phrase to a boilerplate clause: Publisher shall provide a true and accurate report of royalties….”

The publisher’s attorney struck out the addition, with no explanation.

Here’s what the lawyer wrote to me:

“True and accurate” is one of the most standard modifiers in business contracts of all sorts. Whenever one party is giving an accounting to another, it obligates itself to provide a true and accurate accounting, whether it’s dollars received by a fast-food franchise or customer support calls answered in Bangalore…I was amazed at the implications behind the unwillingness to represent that the royalty statements would be true and accurate.

A writer then wrote to me about an agent, fired two years ago, who had a meltdown over the phone with both the writer and an editor. The agent, who had received money in payment for a contract several months before, accused the writer and the editor of colluding to avoid paying any payments to the agent, including the payment that the agent had already received and passed on to the client.

The stories I’ve received lately of agent meltdowns like that one show that the financial pressure on agents is getting to them. Writers’ incomes are down, so agent income—which is 15% of their writers’ incomes—is down as well. Financial stress isn’t pretty, and probably led to the above meltdown, and all the others I’ve heard about.

Those of you who indie publish aren’t immune to this stuff, as I pointed out last week. Many of you wrote me and asked me if the company I wrote about last week was… and then you’d fill in the blank.

Here’s the scary thing: you all filled in the blank with a different company name. I’d dutifully go to those companies’ websites, and read the Terms of Use or the sample contract (if there was one) or any information about the company at all. Then I’d shudder. Or I’d be appalled that the company’s motto was essentially, “Trust us. We won’t steal from you. Really. Honestly. Cross our hearts” even though all the documentation said otherwise.

Sigh.

The most surprising letter I got, though, was a form sent to a bunch of aspiring writers, offering a flat fee for fiction.

Here are three paragraphs from that letter. The misspellings and grammatical errors are not mine, but in the body of the letter itself:

Knowing [how hard it is to get published], my partners and me decided to give writers like you a fighting chance to bring their work to a much bigger audience—and pay you for it. It is a small fee for all the rights to your story, based on a brief and clear contract we worked out the next morning. We offer you 250.00$ (US) for all the rights to your story, [story title removed].

Why do we want all the rights? Well, our group does not want to loose too much sleep on legal stuff concerning the jungle of laws in the copyright field. So we can do anything to publish your work anywhere it fits, to apply slight changes in words and style where necessary (as any publishing company would do) and to have our hands free to apply any means of marketing our group finds suitable. That includes  your name. We will choose a suitable pen name for every publication we launch that fits the genre of your work (again as any publishing company would do either). To cut it short, we want to avoid EACH AND ANY legal hassle concerning copyright. And to keep the whole procedure simple—we do all this in our free time.

And who knows, if your story appears to be a smashing success—we will certainly get back to you and help you with your future project on real professional terms if you like!

Hard to know if this is a joke. It reads like one. But honestly, so do a lot of those Terms of Use and contracts that I read this past week.

Heck, for all I know, the letter that this correspondent received was a test of the waters, just to see how stupid writers can be.

And believe me, writers who have big dreams can fall for just about anything. Most people can, given the right pitch and the right scam.

I got a lot of other letters this week, mostly from people who feel put upon, sad and angry at all of these scammers and unethical businesses out there.

What can we do? One writer e-mailed me. We’re little guys and they’re big guys, and it seems everyone is out to get us.

Naw. Everyone just wants to make a lot of money off you. That’s all. And they don’t want you to make any money at all, if they can help it.

The question that writer asked is a good one, though. In the face of scams on the e-publishing side, and tough one-sided corporate publishing contracts on the traditional side, what’s a writer to do?

Oh, you folks will hate my answer. And those of you who are regular readers of this blog already know it.

The only writers who will survive this increasingly tough environment will have to know business.

And by survive, I mean the writers who will have an actual lifelong career in the business, not someone who’ll publish one or two or three novels and disappear. But someone who will make a good living at writing (middle class and above) for decades.

The first thing a writer needs is a good bullshit meter. If something sounds too good to be true, then it probably is. So rather than say yes right away, investigate. There are tools for investigation, everything from Google to the Better Business Bureau to credit reporting agencies.

Before you sign a contract with anyone, make sure that person has no legal complaints against them. If they handle money, make sure they are bonded and insured, and have good credit themselves. Make sure their business is on the up-and-up.

That’s what you’d do if you hire a contractor to work on your house. You should do no less to when you hire an e-publishing service or an agent or anyone else you might work with.

But there’s much more to business than a good bullshit meter and Google.

You need an education. In writing, that means you need to understand what you own, what you license, and what you sell. Don’t trust me to tell you. I gloss over this every time because the subject is too big to handle in a single blog post.

You need to read The Copyright Handbook and more importantly, you need to understand it. I mention this at least once a month, and once a month, a few of you order the book through the link provided. Good for you.

The next step is to read it. And then reread it. And get the updated copy when a new one comes out. You don’t have to read the thing in one sitting. Read it in bits and pieces, see if you understand it, and if you don’t find out more about that topic from the multitude of legal sites that exist on the web. Someone might put the topic in a language you understand.

The next step in your education is learning how to negotiate. I know, I know, you don’t want to learn that. You think you’re bad at it. But you’re not. The key is knowing what you want, knowing what you’ll compromise on, and knowing what you’d never ever ever accept. You might have to write that stuff down so that you remember it in a conversation.

You’ll also need to know your strengths and weaknesses. Most of us do not do well under relentless verbal pressure, so hide behind e-mail if you have to. Some of us do better in person. If that’s you, make sure you do your negotiations one on one.

There are a lot of good books on being a negotiator. I have one as well, which is free on this site or available in a short book in trade and ebook editions.

Knowledge of copyright and the ability to negotiate will get you past a dozen traps like the ones we’re talking about in these blogs.  You’ll understand why that ungrammatical scam artist wanted “all rights” to avoid “legal stuff concerning the jungle of laws in the copyright field.” That’s a pretty honest sentence, truth be told. Giving that ungrammatical scam artist all rights will help him avoid all kinds of legal stuff, especially stuff from you if you sign on with him and then change your mind.

There will come a time when your understanding of copyright and your ability to negotiate the best deal for yourself won’t be enough. Before that occurs, prepare a team to help you out.

That team will include business-savvy friends from non-publishing businesses who will ask you things like, Why does this so-called publisher want so much for so little? Or will say things like Gosh, I’d never agree to that in my business. Those conversations should be little wake-up calls for you.

Part of your team will get assembled at continuing education classes, either online or in person, as  you keep up with the trends in the industry. You might end up with an artist who’ll design your covers or a copy editor from the local newspaper to make sure that your character has the same first name throughout your novel (all for a flat fee, of course).

The most important member of your team is an intellectual property attorney. You need someone who can read and explain legal documents to you, and maybe even negotiate them for you (under your direction, of course). Remember that Terms of Use are legal documents, and when you click “agree” you are agreeing to legal terms. So if you don’t understand something, for God’s sake, don’t agree to it. Find out what it says, and click “agree” only if you do agree.

I know, I know. Most of you are afraid of lawyers. Most of you are afraid to pay anyone for any service. That’s how so many writers go with someone who’ll take a percentage of the payment for various deals. That’s what agents do, right? But agents are 20th century phenomenon who are having trouble surviving in the 21st. There’s no need for agents any longer.

And those percentage-only e-publishing services, the ones that do everything for you from designing your cover to formatting your book? Those services? The ones who get your money first and then pay you whatever percentage of “net” that you’ve agreed to?

Run away from them.

Pay flat fees instead.

Also in my e-mail, I received the names of a number of flat-fee companies. I haven’t vetted them, so I won’t share them with you. But before I wrote this paragraph, I did a search for “flat fee” and “e-publishing” and got dozens of hits. You can do the same thing. You can ask other writer friends for recommendations of flat fee companies.

You can ask a flat-fee company for references, for heaven’s sake. And remember, search engines will let you know who is satisfied with a company…and who isn’t.

Find a company that you pay up front, and that helps you put the books on the various sites so when the company is done formatting your book, you get all of the money from your published book directly. No middleman.

Yes, this means you’ll pay some money out of pocket. Just like any person who starts a small business would. You pay for services, but you don’t pay a percentage. That’s like hiring a guy to remodel your kitchen and then letting him eat supper with you every night from that moment on. Nope. Don’t do it. Pay for the service and move on.

Surely you can save enough money to invest in your writing business up front, to avoid scammers.

Also, know the difference between a distributor and a publisher. Companies like Amazon, Barnes and Noble, Smashwords, Kobo, and the like will take a percentage of the price that the customer paid for a book. That percentage is for distribution. If you don’t like to pay for distribution, then offer the book for sale on your website. You’ll get full price.

But realize that everyone who distributes books, from bookstores to Ingram’s to Smashwords charges just a little for their services. Sometimes they pay up front and sometimes they pay after the sales get made.

For small businesses, like those owned by most writers, the payments come after the sales.

The neat thing about all e-book distributors is that they record sales in real time. You can log onto Barnes and Noble’s Pubit site tonight and see how many e-books you sold today. You can keep track of that yourself, and make sure they pay you for them within the prescribed number of days.

This is tremendously different from the days of affidavit returns in which companies would sign a legal document swearing that they had sold 20% of the books you sent them and then destroyed 80% without having to prove it except by affidavit (trust us, we signed a legal document). Things have changed.

It’s time for writers to change too.

You don’t like the idea of learning business? Oh, well. Maybe you really don’t want to be a professional writer.

Because if you don’t learn how to run your business like a business, you will get scammed. You will sign bad contracts, click “agree” on terrible Terms of Use, or sell all rights to some guy who is willing to pay you $250 for the privilege of screwing you.

And then you’ll end up in a bar at a writer’s conference, complaining to wannabe writers about how tough the publishing profession is, and telling them how impossible it is to make a living at it.

I’ll be honest with you: I fully expect to find New York Times bestsellers in those bars ten years from now, bitching that there isn’t any money in publishing. So many of the folks who are defending the horrible practices of traditional publishers have signed contracts that will guarantee a significant loss of income over the next few years.

This has already happened to many naïve but successful artists in the music business in the past two decades; I fully expect the same thing to happen in publishing.

So the best defense is a good offense, just like it always was.

The best thing you can do is guard your work, learn how the business works, realize what you want out of it and go after that. Learn to say no. Learn to say, let me investigate this—and then investigate it. If you don’t like the terms, ask if they can be changed. If they can’t be changed, say no.

Opportunities are everywhere. That’s why scam artists are running toward publishing these days. There’s money to be made. Traditional publishers have also realized just how easy it is to rip off writers. Writers don’t think of themselves as partners in the publishing industry, so why should publishers treat them that way? From a publisher’s point of view, coddling the writer no longer makes sense. It’s better to take everything and apologize later. Or to say, You signed the contract. Try and sue me now.

No one will defend  your business if you don’t. No one will fight for your business if you don’t. No one will believe in your business if you don’t.

So it’s time for you to do two things.

First, you must believe that your writing is a business even if you haven’t sold anything yet. After all, a retail store calls itself a retail store before the first customer walks in the door. Be businesslike from the moment you decide to become a writer.

Second, don’t expect anyone to take care of you. Learn how to take care of yourself. Sometimes that means hiring help on the best terms for you. And sometimes it means saying no in the face of all kinds of pressure to say  yes.

The writers who learn business will have careers ten and twenty years from now. The writers who believe they are artists and don’t need to think about that business thing will vanish.

There was a short period of time when writers who had no business sense could survive in publishing. It lasted about fifty years. It died with the new century.

You need to accept that. If you want to be a professional writer, then you need to learn the profession. You need to understand finances, and copyright, and business management. You also need to know how to tell a good story.

Sounds hard, doesn’t it?

Of course, it’s hard. You’re stepping into an international profession. Why do you expect it to be easy?

Don’t fall for all the bad deals that are proliferating out there. Protect yourself. Educate yourself. Stand up for yourself.

If you do those three things, you’ll succeed for years to come.

I’ve made my living as a writer for more than thirty years now. One of the reasons I’ve been successful for so long is time management. I’ve learned what parts of my business are profitable and what parts aren’t.

I make the bulk of my living writing fiction. This blog is partly for the love, partly because I’m paying forward for all of the help I’ve received, and partly because I’d be studying this stuff anyway, so I might as well share.

My problem is that writing these blogs takes time away from the fiction, so I determined from the beginning that the blog must pay for itself.

That’s why I have a donation button at the bottom of each blog post, and why I ask you to leave a tip on the way out.

Thanks!

Click Here to Go To PayPal.

“The Business Rusch: “A Good Offense,” copyright © 2012 by Kristine Kathryn Rusch.

 

 

 

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40 Comments

  1. Kris

    Sadly where there’s money there are sharks and scammers. Happens in every profession….in my day job (a large part of which is involved with online marketing) I regularly see scams like you wouldn’t believe – scams that cost people thousands and thousands of dollars.

    I love the fact that you’re giving writers the weapons and tools they need to protect themselves against the scammers.

    I’m at the start of my self publishing journey – one of the things I plan to do once I’ve published stories on Kindle (and Nook and Smashwords and so on) is to create detailed tutorials so that any ‘newbie writers’ who think it’s too hard to upload their own material to Kindle or anywhere else will have a quality, free guide to help them do it.

    Keep doing it – I love reading your weekly Wednesday posts. (And will be buying your guide to copyright later today).

    James

    Reply
    • The scammers always flock where there’s money to be made. It’s sad but true. So we just have to block and defend. And I wish that was my copyright guide. It’s put out by Nolo Press and is the easiest most accessible book I’ve found on the subject. Enjoy!

      Reply
  2. Great post, Kris.

    It’s really hard to know who you can trust these days. With the right SEO manipulation, even a scam company can look legit.

    I got a call from the US Dept of Education the other day, wanting to refinance my student loan, dropping the payment from $400/month to $150/month without changing the interest rate (which is quite good). And I wasn’t sure I believed them.

    I work for a government agency. My agency gets told we’re a scam all the time because of the information we ask for. So I should know better, and even I didn’t believe that phone call.

    (Of course, I’m also paranoid.)

    Not to say I haven’t worked with other individuals and businesses in the course of my publishing, but man, if I can do it myself, I will. (I do enjoy making book covers and things, but I can’t wait until I’m making enough that I can hire a minion to maintain my website for me and stuff like that.)

    Must take that class on Excel so I can learn how to do pivot tables for my accounting spreadsheets…

    Reply
    • Yeah, I get those calls on my credit card. I hang up. If I want to change things, I go directly to my bank. There’s no trusting anyone any more. Great points, on all of it.

      Do remember that you always have to direct the minion to do your bidding, and that takes time too. :-) And yeah, Excel. Just mentioning it makes my head hurt. But good idea.

      Reply
      • Yes, but it’s much faster for me to email my minion and say “Here is the metadata and cover for the new story, please make a page for it on my website using the standard template, and then make sure it’s on Goodreads” than it is to do it myself. ;)

        Reply
  3. When you put your warnings in terms that are easy to understand – such as comparisons to hiring a contractor to do work on your house and not expecting to feed him dinner forever – your points really stick.

    I may not remember the exact examples later – tend to make up my own – but you make it perfectly clear: the only reason to let someone have 15% of your income stream forever is that you have no choice. There are not other reasons – and now you have choices, so there are NO reasons.

    Period.

    I have a dear friend who has written a wonderful thriller. She even got an agent excited, shopped it around, and – nothing.

    The consensus was that her ‘creds’ were not quite as good as they needed to be – not her writing, not the book. Her credentials as a writer of thrillers. Her WRITING is impeccable. She doesn’t DO dangling modifiers and typos and misspellings.

    So no publisher was willing to take on a book that, in my estimation, could compete exceedingly well on plot, characters, and writing quality.

    Yet she won’t try to publish it herself – she’s afraid doing so will taint her in her search for a ‘real publisher.’

    Needless to say, I gave her links to you, Dean, The Passive Voice – and will give her many more.

    The ‘prestige’ of the traditional publisher is still the shining city on the hill for new writers who haven’t been beaten up by actual publishing contracts yet. Sad. Fixable, I hope.

    Reply
    • Thanks, ABE. I try to make it as clear as possible. One of the things scammers do is sound so reasonable when they’re really being unreasonable.So I try to put the information in other terms so that folks can hear it. I’m glad it works.

      On another matter, I hope your friend gets her book to readers, whatever that means. I also think she should be writing the next. As should we all…

      Reply
    • I have friends like that as well. They would rather go with some minipublisher who’ll only gives them a complementary copy of their book (or the anthology if it’s a short-story) than try to self-publish. Even if they only sold one copy (or five or ten) they would make more money than with going with a mini-publisher.

      Reply
  4. Outstanding, as usual, Kris.

    Writers are small business owners. That’s the most important single message I could ask newbies to learn. And the second most important message: read the fine print. Read the fine print. Read the fine print. Can I say it again? Read the fine print.

    Reply
  5. This was much needed tonic after reading the article about how being an indie best seller still doesn’t feel as good as having a contract, that there is still a stigma against self-publishing among the public and other writers.

    I’ve purchased the copyright handbook and Dean’s book on publishing like a business, so I’m trying to educate myself toward the day that when asked why I would want to self-publish instead of getting a contract with a publisher I can say, “Because I make more money this way!”

    Reply
    • Thanks, E.S. When looked at from a business perspective, self-publishing makes sense these days. Legitimacy? Well, it’ll come.

      Reply
    • It’s rather weird that self-publishing still has this stigmata considering that over the centuries numerous now famous writers self-published for a variety of reasons. I think one of the most well-known ones would be Virginia Woolf and her Hogarth Press.

      Reply
    • the day that when asked why I would want to self-publish instead of getting a contract with a publisher I can say, “Because I make more money this way!”

      I’ve actually said that! Someone was asking if I was hoping for an agent or publisher to see my self-published book, and I said, “Nah! I’d probably turn ‘em down, because I make more money this way.” (Last month was very good to me. I’m hoping the momentum represents a new baseline. And, in the meantime… I get the covers for a couple more, and work on the Next Book.)

      Reply
  6. Thanks so much for this.

    The typo ridden email was painfully familiar. Some of the passive income “warrior” groups have been passing around strategies to get rich quick off writers.

    (For people who’ve never heard of them, I recommend running far, far away from anyone who says they make money off passive income. These folks are professional scammers.) Their base strategy is to start a “publishing company” for under $2000 by purchasing 8 books for $200 each and some $5 cover art. Just put an ad up on Craigslist and people will practically beg you to publish their book.

    They pitch it as doing the author a favor. Hey, those books were just going to languish in a drawer somewhere without their help. They kindly take care of the cover, formatting, and marketing and the author gets a little pocket cash. They’re practically doing you a favor!

    Likewise, I’ve seen way too many alleged ghostwriting gigs where the scammer pays you $50-200 to write 5000-20,000 words of researched nonfiction on a topic with good SEO. Folks, if they can afford to pay you $200 up front, then as Rusch says, with a little bit of work and patience, you can make a heck of a lot more than that publishing it yourself.

    The silver lining is that all these scammers prove there is money to be made in publishing. Go make it for yourself. The flat fee cover artist, copy editor, and ebook formatting advice is spot on.

    Reply
  7. When I explain our (Lucky Bat Books) flat-fee structure to writers, one of the most common questions I get is: “Then why do the other guys take a percentage?” My answer? Because they can. It’s easy money if you can stomach doing that to someone.

    Reply
  8. Wow, WOW! That’s all I have to say.
    Thank you so much for sharing the quotes and information.
    I plan on sharing this post with everyone.
    Have a great evening,
    Tamara

    Reply
  9. Been thinking this one over since I read it earlier, and I think I realize what the problem is: Writing for the longest time, after the author finishes the novel, becomes a passive act for the writer.

    The writer send the novel out (agent or publishing house), and start on the next one. they do nothing else with the story until they get an acception/rejection letter — if it’s rejected, they send the novel to the next agent/house on the list. Rinse and repeat.

    But if it gets accepted by a publishing house, the house does the editing, cover art, blurbs, marketing, printing and the like. The writer makes changes to the novel as requested by the editor, but they don’t worry about the rest of the process the house does to get the book ready for the market. It not the writer’s concern.

    Now, self publishing, all of a sudden, the writer has to make decisions they have no idea about. It’s new to them. What font to use? How do you do the book cover? E-book only, or POD? Why price do I sell it at? The writer is floundering around, trying to find they way through a changing landscape.

    That’s where the scam artist come in. Thay say, “We’ll take care of all that for you for 15%, 20%, 25% of the cover price. And the Writer thinks, “Okay!” and think they’ve solved the problem.

    Educatiuon is the key, but there are no college course for this new way of doing business. So, we’re all learning on the fly, getting guidence from people who are kind enough to show the way.

    Another good colum Kris — thanks!

    Craig

    Reply
  10. I’m not sure who actually said it to me. Might have been one of my tecahers at business-school but the gist was: get it in writing and READ! IT!

    Even today when companies call with some super-special offer I tell them to send me a written offer by mail and I’ll look at it. If they can’t (read: won’t) do that then I’m not interested.

    The first thing I did when I signed up with KPD was print out the Terms so that I could read them on paper.

    Reply
  11. I’ve shared your links over at Kindleboards.com>Writers’ Cafe where you know (and I know you occassionally visit) self-publishers hang out.
    Lately, quite a few “small press” ebook publishers have been signing these writers. Of course, these writers could just pay a flat fee and get the same services these small press are providing and will be receiving a percentage on—forever.

    Reply
  12. My rule one is, ‘Don’t pay for anything you can get for free, or learn to do yourself.’ Tough rule, but I’ve learned to format, edit, and publish, as well as market my books. I’ve walked away from contracts. I will not invest any money into this business that is not generated by the business itself. It requires patience, and there are times when my relatively thin skin burns a bit from certain remarks. I’ll be honest with you. I get real tired of folks with money spending five or ten thousand dollars to publish a book, and looking down their noses at me. The smartest guy in the world is the one who just bought a new car. They all got a great deal, but I write too much too fast to blow that kind of cash on pure faith.

    Reply
  13. Problems caused by authors not understanding contracts they’re signed have already begun:

    Sued for self-publishing

    Reply
  14. One of the other authors in the group that supply fiction for the gaming fiction site I write for tweeted that he had another rejection letter for a novel of his. I tweeted that he should look into self-publishing. He tweeted back “I’m not that desperate. That novel has only been rejected (solely by query) 12 times. This is the first partial-ms rejection.”

    That led to a flurry of tweets between him and me. I invoked Kris’ name, he invoked Chuck Windig’s name, and I have no idea what else to do except to refer to my previos post in this thread. I hadn’t had this conversation when I wrote that post, but I think this author fits what I wrote about.

    Craig

    Reply
  15. Oh, Dear Bog in Heaven, that $250 guy. How is it possible to function in society with that low a level of shame?

    And yes, everybody, you NEED an IP lawyer. We are not all rapaciously expensive. (I am, sorry.) Lots of us, even the expensive ones, will give general advice pro bono. (I will, but keep in mind that I only give GENERAL advice, and I can’t formally represent other clients since I work for a corporation not a law firm. You will find this common if you look for pro bono help.) And we all know some young hungry who will do reasonable work for a reasonable fee if you can’t afford us. (Again, I certainly do.)

    Do not, I repeat DO NOT, use a family friend/college buddy/officemate who is or knows a general practitioner. This is a highly specialized area of the law. Most lawyers do not even study it in law school and unless you practice in the field it is quite arcane even for law. No offense to your family friend/college buddy/officemate. But they will have to do a lot of work to come up to even a minimal reasonable level of competence. I don’t do real estate closings: they shouldn’t negotiate IP rights. (No, seriously. I didn’t even do my OWN real estate closing.)

    Another tip: If there is a law school near you, you could always call them and ask if they have a legal clinic in IP. (The John Marshall Law School does, for instance.) You get assistance from students who are being supervised by professors (who are of course licensed attorneys.) As free help goes, it’s usually pretty good.

    Just so you all know, this is certainly not limited to writing. In one of my other lives, I’m a photographer. I once shot some pictures of a model for a friend of mine’s small business, and met his son-in-law, who was a band promoter. He loved my pics and thought I should shoot his new band.

    I said, “Okay, what’s the fee?”

    He said, “I could probably pay you $250.” [Hence my flashback above.]

    I said, “Okay, that’ll get you the shoot and limited promo rights.”

    He said, “Oh, I was thinking you’d just give me the film.” (I don’t use film, but never mind that.)

    I said, “Do you think you need the copyrights?”

    He said, “Yeah.”

    I said, “Copyrights start at $500/image and go up from there.”

    Oddly, I never heard from him again. That’s what happens when you try to scam an intellectual property lawyer. :)

    Reply
    • Great advice, Marc. I’ve noticed that people in general are scared to hire lawyers, and I simply don’t understand it. They’d rather get ripped off than go to an expert? It makes no sense to me. But then, I have lots of lawyers and judges as friends, so I don’t find these folks scary at all. (Of course, I knew a lot of them before they got their degrees, so maybe that makes a difference.)

      Thank you for the comment!

      Reply
      • You are most welcome.

        As far as fear of lawyers, well, I can understand that. Whenever I get a letter on legal letterhead, my heart sinks, and I are one.

        But we have an old saying in my profession: “Pay me a little now, or pay me a lot later.” Or, in this particular case, “Pay me a little now, or watch somebody take a lot from you later.” It’s up to you.

        And it should also be noted that most IP lawyers, like most other kinds of lawyers (a major exception being criminal defense lawyers for obvious reasons) will offer a free consultation and give you a (highly-qualified) estimate of what something will cost you. If you can’t afford it, say so. We may try to talk you into it, but we won’t mock you for not having the money. Most of us, being friendly sorts, will often offer observations (not advice) on what has worked in similar situations in the past during such consultations.

        We do not bite, we will not make fun of your outfit, and the only criticism of your writing abilities we will offer is if you spell our names wrong on the check. (To a lawyer, the zenith of literature is the immortal short story form which begins, “Pay to the Order Of:”) There is, honest and for true, no downside to consulting one of us.

        Reply
        • Thanks for this, Marc. It’s also been my experience with attorneys that they’ll tell me if I really need to hire them (or someone else). If I can handle it on my own with a little coaching, a good attorney will say that. I hired an attorney when I was exceptionally poor. She let me pay the retainer in installments, and it took me four years to pay for her work. But she was worth every dime and I am extremely grateful. We hired a different attorney for the estate we dealt with last year, and he outlined all of the fees for everything in our first consultation before we hired him. He too offered a payment plan, although we didn’t ask for one, and we didn’t need it. Most folks need one on a case as big as that estate was. He was not the first attorney that we talked to. Another attorney wasn’t sure he could handle the complexities and said so. And a third attorney (a friend out of state) consulted briefly just so that we made sure we had the right attorney here. Every single attorney gave us good advice, told us (or me) their limitations, told us what they could or could not do, and advised us on what we could easily do ourselves. A good attorney is worth every dime, imho.

          Reply
  16. There’s a directory of literary lawyers on my website. These aren’t all the good lawyer in the field, there the ones who can be regarded as personal referrals from me. Either I have worked with them or dealt with them in a professional capacity (indeed, one of them is -my- lawyer), or they have been referred to me, with supporting detailed information, by professional writers who’ve worked with them and whom I know personally, and I have discussed with them being in this directory before putting their names there. NO ONE gets into this directory without working with me or working with a writer I know personally. I’d rather leave a good lawyer out of the directory than risk making a bad/unfounded recommendation there by NOT being that careful. (Ditto with the freelance editors I recommend on the same page: they are all specific, personal referrals or people I know well, professionally speaking.)

    The directory is at:
    http://sff.net/people/laresnick/About%20Writing/Writers%20Resource.htm#Lawyers

    There are also a couple of essays posted there about how and why/when to work with a literary lawyer.

    Reply
    • P.S. Please excuse the typos and bad grammar above. Very tired. I’m in my second week of nomadism, and feeling the burn. had to move out of my apartment before my new home is ready. (But I finally have a closing date! Mid-Sept.)

      Reply
      • Congrats on having a date, Laura. Sorry it’s taking so long. And thanks for adding the link to the IP attorneys. I should probably do that every time I mention them, since invariably you or I add the link in the comments. If only I could think that clearly when I write the posts…

        Reply
  17. In the second example cited above, I don’t think 12.5% sounds “too good to be true” and therefore a red flag for the author. It sounds completely reasonable to me, particularly since it was a deal-sweetener.

    So how was the writer supposed to do due diligence and figure out the publisher was contracting for rights they never intended to exercise? I mean, my publisher promised brick-and-mortar distribution and never followed through–how is one to check such items ahead of time?

    Reply
    • You can’t always find out, Deb. But the best thing to do is follow the publishing trades publications and get to know others associated with your publisher. This particular author found out through a side channel, but I learned that one of my publishers–who had just purchased a horror novel from me–was shutting down their horror line, which meant that my book would be published with no support. We had lots of talks, canceled part of the contract, and I moved to a new publisher because of it. Sometimes in traditional publishing, one part of the company has no idea what the other part is doing. In the case above, the publisher had stopped doing mass markets on particular genres. Same thing. Education, keeping your ear to the ground, and following trends is about all you can do.

      Reply
    • If I may insert a not-so-subtle plug, an experienced licensing attorney, when offered particularized incentives for particular products, will immediately ask, “How do I know that those products will be offered for sale in commercial quantities as opposed to other products which have differing royalty terms?” I can think of three different ways I would have addressed said deal-sweetener, and that’s just off the top of my head. I wouldn’t even necessarily attribute the prospective failure to promote/market/sell the royalty-enhanced products to bad faith. I don’t care why somebody does something when I write a contract, only whether they do it or not, and what happens if they do or don’t.

      (As an aside, it’s very common for licensees to play the “We’re honest professionals, you can trust us to read this reasonably” card when licenses are negotiated. My response to this is a friendly laugh and the statement, “Of course I trust you, and I’m sure you’d pay on this just like you say. But, God Forbid, what if you get hit by a bus tomorrow and somebody else has to manage the license?”)

      This point shouldn’t be taken in isolation or wrangled about in depth: it’s just a good illustration in general of the kind of thing you need professionals to know about so you don’t have to. I could list out a few dozen similar principles that are so ingrained in my mind that I don’t even consciously think about them when I read a contract. They just go “ping” when I hit them. To most lawyers, how you people make all the words come out and tell stories about dragons and robots and cats that solve murders and whatnot is an impenetrable mystery. How to make the words in a license come out so the story ends up with “And then she got a nice royalty check on the licensed products just like she was supposed to” is our mystery. :)

      Reply
      • Marc, I love your philosophy. I had to learn the hard way to ask those questions that you just naturally ping, because I started out with agents handling the negotiations (like a good writer should). Then I started asking the agent who hadn’t a clue. So I forced agents to ask, and several refused. They no longer work for me.

        And folks, I approach every negotiation with the attitude in Marc’s aside. Yes, the person I’m negotiating with is wonderful, but they could get hit by a bus tomorrow, and then I expect them to be replaced by Darth Vader (or maybe the Emperor–he was probably tougher on contracts). When looked at in that light, a lot of contract terms are simply unacceptable on their face.

        Reply
  18. Another brilliant post Kris, thanks for the insight.

    Reply
  19. The thing that drives me crazy, as one who does like to negotiate deals, is that most of these “terms of use” online agreements are take-it-or-leave-it, essentially non-negotiable deals. All you can really do is walk away from them.

    I read lots of provisions in the Amazon terms for self-publication that really turned me off, but I e-signed the damned thing anyway, because Amazon is such an enormously popular distribution outlet.

    At least with a paper contract (or an online agreement with a small firm) you can dicker.

    Reply
  20. IMO, the general problem falls into the category of most writers hate dealing with business. Most of us would rather focus on writing and let someone else handle all that “boring stuff.” Many writers sign these things thinking they can now focus on the reason they went into writing, with one less thing to worry about before the big bucks come rolling in.

    As you point out, however, that era is gone. A person can have the best written novel in the world, but they’ll never make it today if they don’t get the business side of the equation. The saying of “writing trumps everything” is true…for those looking to make a quick buck off of you.

    Reply
  21. I love this article. I started out my professional life as a legal secretary and I have been preaching this same thing for years. I am teaching a class on basic novel structure for absolute beginners and would like to use this article as part of that class.

    Reply
    • Please do, Marsha. The more this information gets out, the better off we’ll all be. Thanks for thinking of that!

      Reply
  22. Great information.

    Reply

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