This week, let’s deal with the clause that agents insert into your book contract with your publisher. (This is the book contract that your agent negotiated for you. Yes, I’m telling you the agent inserted something into that contract that benefits the agent, but doesn’t benefit you.) Agents have been abusing this clause for years now. Agents, not publishers, even though this clause is in a publishing contract between the writer and her publisher.
Imagine this scenario: You’re a divorce attorney with more that thirty years experience. You charge hundreds of dollars per hour for your expertise. You have what seems to be a relatively easy divorce on your hands. After all, the client has told you that he and his soon-to-be ex-wife agree on the terms. They simply need you and her attorney to hammer out the details. […]
Most writers check their traditional book contracts for the advance, the payout, and the due dates. They don’t look at anything else. Writer after writer, and editor after editor, have told me this.
I always look toward the editing clauses first. Because if they’re ugly, the rest of the contract usually is as well.
This applies to all kinds of writing for traditional markets, especially for nonfiction and short fiction. I’ve seen terrible editing clauses in those contracts, and what’s ironic is that those clauses often seem to be the most innocuous.
What you want is complete control of the content of your work.
Writers tend to go through their business life like Pokémon Go players, looking for something that isn’t there, hoping to score a magic number of points, and not seeing what is there.
It’s impossible to show you all the bad contract terms. I’ve delineated several that you need to watch out for. I’m going to go through some important ones quickly in this blog post…
Slowly, traditional publishers have realized that backlist titles are worth a lot of money. As I wrote recently, traditional publishers are slowly figuring out that they are no longer in the manufacturing business, they’re in the rights business.
So they’re buying—and holding—rights. Years ago, when I got angry at a publisher for their misbehavior, I offered to buy back the rights to one of my books. It caught that publisher flat-footed. No writer had ever done that, and the publisher had no idea how to estimate the books’ value to the company.
Now, I’m hearing from more and more writers that their publishers insist on the writers paying to get rights reverted.
It feels odd to talk about how a contract ends when you’re entering a brand new relationship with a publisher. Both of you feel like this is a Great Thing, and it’s all shiny and celebratory and marvelous. And maybe your relationship will be that way.
But the law is all about planning for the worst-case scenario, not the best case. It’s all about protecting someone, so that someone, in my opinion, should be the writer, not the publisher.
Since 2009 or so, publishers have gotten quite nasty about contracts. In short, they’re refusing to let any contract terminate.
This is causing all kinds of problems for writers.
Writerly weirdness causes conflict with our careers and our businesses, in part because we are (as a group) imaginative, rule-bound, pessimistic, ethical, and the center of our own small universes.
We bring all of those things into the realm of contracts.
Be honest with yourself: What do you imagine will happen to you if you don’t follow your book contract to the letter?
Writer Teri Kanefield emailed me after reading the non-compete blog and mentioned that non-compete clauses are mostly illegal under California law, with rare exceptions. She also suspected that they were illegal and thus unenforceable under New York law.
She had reasons for that. I asked her to send me a few citations, so that I could essentially try to recreate her argument, although I admit, as a non-lawyer, I felt uncomfortable doing that. Then she suggested doing a guest blog for me on this topic, and I jumped on it. She’s written it in the form of a letter. It’s fantastic.
I want all of you—indie, hybrid, traditional, with non-competes and without— to read this letter, which follows. I will give you each some non-legal advice on what to do after you’ve read her letter at the end of this blog post.