Business Musings: Myth Busting (Contracts/Dealbreakers)

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For the past several months, I’ve focused on contracts, contract negotiations, rights, and dealbreakers.

I know I lost some of my indie (self-published) readers, who are waiting until I finish this series before they return to reading my blog. Those readers believe they will never sign the kind of contract I’m dealing with. They also believe that they’re protected because they’re in business for themselves.

In some respects, they are protected. They don’t have agents trying to scam them, along with publishers trying to grab their rights.

Or do they? You see, many terms of service have rights grabs buried inside the boilerplate—y’know, that stuff you just click through to use someone’s service.

Sometimes, other people will call the service on their bad TOS, and the service will change the TOS—for future agreements. But those changes aren’t always retroactive. If you signed on years ago, when the terms were at their worst, those old terms might still apply to you.

As with all contracts and agreements, it varies from person to person, item to item, contract to contract, and company to company.

Yes, you have to keep track of all of that. You. So start learning this stuff.

Thanks to another writer’s bad situation, last week I was able to link to an existing multimillion dollar book contract, which handily proved every point I was trying to make with this series. Publishers are grabbing rights; agents are worse.

And yet, if you scan through the comments throughout the series—even in the last month—you’ll see writers who still want that traditional publishing deal. Even though they now know (and admit) that they will get screwed.

I can’t help those people. You can’t help those people. Don’t even try.

However, I do know a lot of you have listened throughout this series, and have supported it with your dollars and your shares and your comments. Thank you.

To wrap up, I’m going to address the indie/hybrid writers among us.

I know many of you think you’ll never see these contracts.

I also know many of you still believe some outdated myths.

I’m going to address a few of those myths here.

Agent Myths

Myth: You need an agent to sell your books overseas.

Here’s the thing, folks. Any agent you sign with to sell your foreign rights will have all of the bad contract practices I listed in this series. And that agent might (will) insert the same kind of rights-grab language that exists in the contract from last week. On top of all that, your agent in your home country will partner with an agent in the foreign country, so you’ll have two agents grabbing at your money (which is almost untraceable) and at your rights.

Run away. Run.

Besides, folks. Those of you who want an agent to sell your foreign rights have no idea how the agents actually sell those rights. If they sell the rights.

All the agent does is compile a new releases list (usually three times a year) and send it to all the foreign rights agents they partner with. Yes, if you’re one of the big bestsellers, the agent will hand-sell your book to the foreign rights agent, but usually foreign publishers will come calling anyway.

Some agents actually go to overseas book fairs, and talk to foreign rights publishers. The agent pitches their agency and then hands the publisher a list of available works.

That’s all.

The agent does no work. Either they farm out the work to another (foreign) agent. Or they answer the phone or an email. Nothing more.

Finally, agents embezzle from their clients a lot. And the area where the most embezzlement occurs is foreign rights. If your book earns royalties, how will you know? Most writers don’t track their foreign book’s royalty statements. (Heck, most writers don’t track their royalty statements, period.) And if you signed a contract as bad as the one from last week, your publisher(s) don’t have to give you an accurate royalty statement ever. Go back and read it if you doubt me.

The Solution: You can do handle your foreign rights yourself, faster, better, and without losing any copyright or having someone embezzle from you. This world is very small now. You can contact foreign publishers directly.

If those publishers publish English language books in translation, they have people on staff who can read English language emails. Learn how to submit stories and novels to them. A good first step to learning this is the area on award-winning writer Douglas Smith’s website that provides a tutorial in foreign short story markets.  If you build a following in a foreign short story market, eventually book publishers in that market will take an interest in your work.

You will also learn the names of translators who might be willing to work with you to translate your work and allow you to indie publish it. But you know what you will need in that circumstance? You’ll need a contract between you and the translator. Heh. Wow. Guess you’ll need to learn more about rights and contracts then.

Even if you only make one traditional foreign sale per year, you will probably earn more than you would ever earn if you hired an agent, even if the agent sold a book for you overseas.

One other point: In 2016, your English-language book will have a worldwide release only if you publish it yourself. Get out of Kindle Select, people, and go wide. Use Kobo, which is growing dramatically. Realize that iBooks has fingers all over the world.

Sure, you might only sell one or two titles to a particular country, but you don’t know if one of those titles sold to an editor at a foreign publishing house who is checking out this English-language book a friend recommended. And if the editor likes your book, then guess what? She’ll contact you via email about how to acquire the translation rights for that book for her company.

Myth: You need an agent to sell your books to big traditional markets.

No, you don’t. You just have to learn how to do it, and as I have said over and over again, I am not going to teach you how to do it.

These contracts and rights deals through traditional publishers are awful, people. They will control your careers and your works. If you want writing to remain a hobby, get a traditional book deal.

If you want a career, stay away from traditional book publishers.

Besides, traditional book publishers are actively cutting their book lines right now. They’re drowning. The numbers I recently heard from Random Penguin/Randy Penguin/whatever they’re calling themselves just in the past month are this: They’re cutting their titles from 900 to 250.

Think there’s room for your book in those 250 slots? Um, no. Writers I know who have been cut this past year include a large number of New York Times bestsellers. Only those writers weren’t mega bestsellers.

That 250 is for Big Guns and people who “write” novelty books, like the Kardashians. Not for you.

But go ahead. Bang your head against that wall. Break through and have leaches and hangers-on destroy your career. If you don’t understand what’s so bad about last week’s contract, and you don’t want to learn, then you’ve figured out what kind of life you want to live—and it certainly ain’t the life of a professional writer.

Traditional Publishers Do It Better

Myth: Traditional publishers will get my book into bookstores.

Really? Where? What bookstores? Small independents? Barnes & Noble? Amazon?

Oh, wait. You mean paper books, right? Yeah. Okay. Still, I ask you. Where? What bookstores? What are you talking about? Do you think it’s still 1999?

Truth: Most books are sold online these days. That includes paper books. If you publish your own books, you can get them into Amazon easily, Barnes & Noble (not as easily), and independent bookstores (if you understand things like Indie-Bound).

Here’s the thing: Even if a traditional publisher publishes your book in paper, no bookstore is obligated to take that book or to put it on the shelf. What indie (self-published) writers learn when they take print-only deals is this: the traditional publisher is no more able to sell print books than the writer was.

And on top of it, the writer loses much of the copyright on their book. In fact, the writer often loses everything in that traditional deal, including and not limited to, money. The writer will also lose control of her next projects, usually due to noncompetes buried in the boilerplate.

If the writer went through an agent, the writer will lose even more. See the clause in the agent agreement from a few weeks ago, in which the agent demanded that the writer have every self-published book approved by the agent before the book goes live. Realize that the agency who has that clause in its contract is as famous as William Morris.

As many indies have learned in the last seven years, paper-only deals are terrible for the writer. Stay away from them. They’re as bad as a regular publishing deal because they are a regular publishing deal.

Myth: Traditional publishers can promote a work better than an indie writer can.

Truth: Take a look at last week’s contract. The only party in that contract who is obligated to promote a book is the writer. The publisher can opt out of promotion at any point.

And that’s if the publisher actually knew how to promote books. Sure, publishers have deep pockets, but they don’t know how to invest in effective advertising or how to sell books to readers. Not bookstores. Readers.

As this world has changed, publishers have changed their marketing strategies not one bit. If you don’t understand this, pick up my book Discoverability and/or look at the blogs for free on this site. (But realize those blogs were published out of order.)

Once again, for an empty promise not backed up in the contract, a writer will lose control of her intellectual property.

And she’ll lose the ability to participate in all of the various ways that books actually do sell to readers.

This month, for example, I’m going to have books in three different Storybundles. Those bundles sell thousands of copies. Most bundlers, like Storybundle, do not work with mainstream publishers—in part because of contractual issues. I’ve curated a few bundles with some traditionally published writers who farmed the work to their agents, and guess what? None of us (me or the bundlers who experienced this) will ever do that again.

Opportunities lost, folks.

No traditional publisher will let you put your book in a 99-cent ebook bundle with other writers on, say, Amazon, not even for a limited time. Because that means the traditional publisher would have to partner with its competitors. The traditional publisher won’t allow it for a $50 ebook bundle either. Not happening.

Nor will most traditional publishers bundle the books in your series together. The traditional publishers publish once and then move on to the next book. Any promotions, any rejiggering of the book itself, will not happen.

I know, I know. You will make your own decision regardless of what I say. And then you’ll write to me as two separate people did this week, saying that they had made a mistake, and could I help them learn how to indie publish after all.

If there’s anything left to indie publish. If you haven’t sold control to all of your books to a major corporation, maybe I’ll be able to help you.

I’m pretty much done with contracts and dealbreakers. Other indie bloggers are quitting because they don’t like the dirty tricks coming out of traditional publishing and they can’t seem to talk their readers out of making bad deals.

I don’t see it as my job to talk you out of anything. My job is to inform you.

I’ve done that with this contracts and dealbreakers series. I am going to list a few points that you should have gotten out of this series, and then, next week, we are moving on.

Point The First: Always hire a lawyer to advise you on legal matters concerning your writing business.

Point The Second: Make sure you have a contract that governs every relationship you have in your business, from the editors you hire to the co-writers you work with.

Point The Third: Learn how to negotiate. (Always do your negotiations via email.)

Point The Fourth: Learn copyright law.

Point The Fifth: Learn copyright law.

Point The Sixth: Hire a lawyer already!

Okay, I’m repeating myself. So I’m going to leave you with a movie recommendation. Watch Begin Again, with Mark Ruffalo and Keira Knightly. Watch through the credits. (And yes, Ruffalo’s character is an utter asshole in the first half hour. Stick with it. You’ll understand.)

Realize that the music industry is way ahead of the publishing industry in rights and music publishing and everything else.

If you don’t want to watch the movie, then at least go watch this scene. It’s from the end of the film, so if you plan to watch the movie, don’t watch this clip:

There. I have done what I can.

You are now on your own.

Good luck.

If this post or this series has been valuable to you, please leave a tip on the way out.

Thanks!

 

 

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“Business Musings: Myth Busting,” copyright © 2016 by Kristine Kathryn Rusch. Image at the top of the blog copyright © 2016 by Canstock Photo/iqoncept.




28 responses to “Business Musings: Myth Busting (Contracts/Dealbreakers)”

  1. The issue with publishing in translation is that, unless you speak the target language, how are you going to reach your readers in that country directly? How are you going to market? Are you really going to build a mailing list, let’s say, of Polish readers and attempt to communicate with them in Polish? While I am 100% pro-Indie for my English audience, I am more than happy to work with an agent and publisher in other countries to reach those markets, at least at this particular moment in time. Ebooks are not terribly widespread in other countries yet. People are used to reading print and the bookstores are where they go to find books. For the moment I’m happy to let the foreign traditional publishers handle all that for now. I’m sure it will change over the next few years but by that time I’ll have my rights back–it says so in my contracts. For now, my time and energy is better spent where I can have a bigger impact with marketing: in my own language.

  2. kris, thank you so much for this series. I’m an indie author and I’ve been eating up every post. I’m sharing as wide as possible but like you say, the allure of going “mainstream” seems to be overwhelming. i just hope those authors i usually talk to come to their senses earlier rather than later.

    I appreciate the time and expertise these posts prove. Not everyone will get on the “lifeboats” but some will and I hope that’s enough.

  3. Anne Gallagher says:

    One of my very good friends has written three very lovely women’s fiction novels and has queried agents for the last 5 years. No bites. She’s so depressed– she can’t even get an offer for a partial. I offered to publish her under my house and give her ALL the royalties (because she’s still afraid of the stigma of self-publishing) and she refused. I’ve tried to tell her the Big 5 is worthless. She doesn’t care. She still wants a traditional contract.

    I think for older writers (like myself and my friend–over 50) the idea of self-publishing is daunting. It’s hard enough to write the book (and know the “rules” of writing), but then to add in formatting, layout, cover design, marketing, publishing, uploading, downloading, all that great stuff, it just becomes out of control — especially as an older writer the new technology is overwhelming. And though there are great people out there who can do all this stuff for you, who has the money to pay for it (as a beginning writer), is the payout going to be worth it, and will the book make it to number one if I drop 5 grand on a BookBub ad.

    Most writers start out with ideas of grandeur — the book will make it to #1 and they’ll be the next and that’s that. They’ll never have to work again and live off their million dollar royalty checks. At least that’s what I thought. Ten years later, I’m still slaving away self-publishing and although it’s hard work, I’m not afraid. I’m looking at the long tail.

    And I’ve seen that movie Begin Again a couple of times. It’s a great flick and explains so much about how music (and publishing) people get screwed.

    • I don’t think it’s just the over-50 crowd who is afraid. I think the amount of work is just plain daunting, because it’s pretty clear from the get-go that writing is a business when you’re indie. When you’re trad pubbed, you think someone will take care of you, and THEN you realize it’s a business (if you’re lucky). So I think that’s part of the problem. We’re in for an ugly transition for some writers. That’s why I continue to blog. I hope that I can help folks feel less daunted in some areas and steer them away from the bad areas.

      Yeah–and Begin Again. I just made Dean watch it, so I watched it the second time. Love it. It’s even better on a repeat viewing.

      • Gretchen Rix says:

        Thank you for the movie recommendation. Just finished watching it. It’s a very good movie on its own account. That it’s about the business of music (and relative to the business of writing) was a great bonus.

  4. Caryn says:

    Kristine – Such a helpful post. I’m curious where the stat in this paragraph is from: “Besides, traditional book publishers are actively cutting their book lines right now. They’re drowning. The numbers I recently heard from Random Penguin/Randy Penguin/whatever they’re calling themselves just in the past month are this: They’re cutting their titles from 900 to 250.”

    I was mentioning it to a publishing colleague and they asked about it. It certainly is eye-opening! Thank you!

    • The stat is secondhand from writers–several now–who had discussions with their Randy Penguin editors, who all quote that statistic. Five authors who don’t know each other; five with the same statistic. Unfortunately, I can’t cite it and link to it since I’m not seeing it in public. I’m sure some version of it will be in the earnings reports at the end of the year or early next. I’m not sure it’s entirely accurate, but it’s close enough, especially considering the bloodbath I’m hearing about right now. Every author I know who is not a Super Big Name at RP is being cut, no matter how good their books are doing. I personally know fifty authors with the company, all of them in the same boat. 🙁

      • Teri says:

        Kris, these numbers are staggering. Large numbers of RP authors cut loose and fewer being signed will obviously create a ripple effect throughout publishing. More authors will go Indie creating more competition for the major publishers. My guess is that the problem publishers are facing stems from the fact that their big name authors are bringing in less money. If that’s the root of the problem, cutting the midlist doesn’t really make sense for the long term. It seems more sensible to stop paying big money to the top authors and spread the money over the midlist. Cutting the midlist and keeping the big name authors seems like a strategy that will only accelerate a downward spiral for them. You said once that major publishers will probably continue to be the gold standard because they have so much gold, but they seem to be cutting their gold in favor of novelty books. Or maybe are they banking on the hope that readers will continue to pay more than 10 bucks for ebooks from major authors.

        • I think that Big Trad Pubs are cutting author costs left and right. That lawsuit from last week is another sign. If a million-dollar author misses deadlines or screws up in any way, the Trad Pub will try to cut them too. I suspect, but do not know, that trad pub has finally discovered the gold in their backlist (ebooks) and they don’t need to spend as much on the midlist. But trying to put a real business motive on these folks is really suspect, because they don’t know business. (sigh)

  5. “And yet, if you scan through the comments throughout the series—even in the last month—you’ll see writers who still want that traditional publishing deal. Even though they now know (and admit) that they will get screwed.

    I can’t help those people. You can’t help those people. Don’t even try.”

    So true. I belong to a national writers group, many if not most of whom are aiming for traditional publication. When another newbie pops up with questions on how to write a query letter or what agents they should send it to, I’ve tried to point them in the direction of your blog and Dean’s. Some have been thankful for the information, but there’s another contingent which seems to think I’m turning it into an us versus them situation and not supporting my fellow writers in their choice. But they don’t know enough to make a choice.

    I am so grateful for all the effort you put into these Business Musings posts. I have learned so much and never regretted becoming an indie.

  6. katepavelle says:

    Nice going, Kris! I’d like to chime in and share that there is a need for a contract between an indie writer and a narrator, too. Even going through Audible and doing a royalty split (where the Audible contract governs the 50/50 transaction,) I found I needed one. I passed the document to my narrator for his use with other writers, and this is why: narrators take a huge business risk doing the royalty split, and the 7-year term of the Audible contract doesn’t guarantee a worthwhile payout. Thus, in order to entice narrators and still make an audiobook affordable, writers commonly strike side deals, offering cash incentives for “post production,” or a “signing bonus,” or whatever they choose to call it.
    This is okay, but a contract is a mutual meeting of the minds. It’s good to have the terms and deliverables in writing. It makes for a good working relationship when both parties know they are covered. The writer keeps an affordable narrator, the narrator knows s/he won’t be horribly out of pocket if the title doesn’t do well (and will do really well if the title takes off.)
    I’m lucky to have a lawyer in the family – my husband – who is now exploring the ins and outs of entertainment law.

  7. JC says:

    “If those publishers publish English language books in translation, they have people on staff who can read English language emails. Learn how to submit stories and novels to them.”

    Thank you, thank you, thank you for this section on handling your own foreign rights. This was a mystery to me as someone who wants to avoid agents all together in the future.

    My only question is will indies who work w/ traditional publishers in other countries run into foreign trad pub contracts that are as bad as the ones in the United States? Should we worry about foreign publishers attempting rights grabs too or am I just being paranoid?

    Also does it make sense for us to just go to book conferences where foreign publishers might be to sell our rights ourselves?

    • Great questions, JC.

      Yes, you should worry about foreign contracts. For the most part, the unagented ones I’ve seen have been all right. Although in the last two years, I’ve received British contracts as bad as American contracts. So I think it’s creeping in.

      I think you should attend a foreign rights conference just to see what it’s like. You might need to have someone else handle the actual discussion with foreign publishers, but you might not. It depends on the conference. (In other words, you might have a representative of your business talk up your works–under your business name (Such N So Publishing instead of JC’s Books). But again, it depends on the conference.

      Good luck.

  8. D J Mills says:

    I am Indie published (wide) and visited each week to read every blog post. Thank you.
    Your final points are gold. 🙂

  9. acflory says:

    Great clip and great series, and yes, I am an Indie. I may never become a rich and famous Indie, but I hope to be a wise one. Thank you. 🙂

  10. Will Overby says:

    Thanks to you and Dean I learned to read ALL Terms of Service agreements AND to keep a copy for future reference.

  11. Loyd Jenkins says:

    Kris, thank you. Your blogs on contracts do not apply to me NOW, but I have learned so much. I will avoid the typical bad contract in the future, thanks to you. May good things come your way.

  12. The numbers I recently heard from Random Penguin…just in the past month are this: They’re cutting their titles from 900 to 250.

    Whoa! That is…shocking. Definitely important news. I’m steadfastly indie, but I’ve been following along on your contract series in order to stay informed. Indeed, I’ve been reading your blog for the past 5 years. I’ve understood that the publishing landscape is changing dramatically, but those numbers – 900 titles dropping to 250 – really bring it home.

    • There’s a Facebook group that describes itself as:
      This group was formed to centralize efforts to persuade Penguin Random House to reconsider their decision to cull their cozy mystery offerings.

      I don’t think any of their tactics have worked.

  13. Marsha says:

    Kris, Thank you from the bottom of my indie-writer heart for taking the time and making the effort to help other writers understand the quagmire of trad publishing. I was one who once believed I had to have an agent (didn’t every writer?) to help me publish. I was turned down (my lucky day) and started looking for alternatives, found you and Dean and began to see the light.

    What you have done with this series is very important. Your points are well thought out and backed by fact. Any writer who still believes they need an agent and a traditional publishing contract after reading these deserves exactly that.

    Now to educate my family and friends who ask if I’ve found an agent yet…sigh

  14. Kris, thank you so much for taking the time and effort to inform us- and some of us ARE listening and heeding. My friend, a long-time trad writer (who has great books, but he could never earn enough to go full-time!), cannot understand why I have no interest in working with a trad publisher- I explain that the contract will cost hundreds to vet, and then I won’t sign without changes that they’d never agree to- so it’s a waste of time and money. Every time I think about pitching a series idea, I come back to these posts and shudder. In several of my writing groups, most would give their right arm to sign ANY contract with a big publisher, and as you say, they will not listen to anything against that. But in five more years, I’m betting I’ll be the Indie pro, all without any trad push. Bless you for helping- like David Gaughran, who keeps exposing the scammers taking advantage of writers. Remember that some of us deeply appreciate what you’ve done, support you with purchases, and spread the word to others.

  15. Prasenjeet says:

    Hi Kris. A lovely blog post busting the myths of publishing. However, I was wondering how come traditionally published books (especially from the big five) from not very well known authors have a better sales rank than indie published books, if the publisher doesn’t do any promotion? I remember reading a very old blog post of yours (the topic was inaccurate e-book sales reporting in traditional publishing) where you claimed that your traditionally published books had a better (lower) rank than your indie published books. I am just curious to know what do these guys do to make books sell better. 🙂

    • They don’t, Prasenjeet. You realize that all trad pubbed books have a different place in the algorithm, right? The publisher moves them up. (Sometimes paying for that privilege.) Check the rankings of a trad pubbed book versus an indie pubbed book 10 months after publication. The indie will be higher.

      • Prasenjeet says:

        Thanks so much, Kris. 🙂 This was news to me. I didn’t realise that trad pubbed books have a special place in the Amazon algorithms. I thought Amazon treated all books (indie published or traditional) as equal.

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