The Business Rusch: The Future And Balance (Deal Breakers 2012)
I started this small series on deal breakers two weeks ago, in response to Novelists, Inc’s request for an update of an article that I gave them last August. I thought such an update would be easy until I read the article itself. Then I realized just how much had changed in the last year.
Because of some of the responses I’ve gotten privately, and because of some of the discussions on various message boards, let me say this: Contracts are meant to be negotiated. They are not set in stone until both parties sign it.
Yes, you might lose a deal if you stand firm on some contract terms, but you won’t lose a deal if you negotiate your contract. So many writers think that negotiation is wrong, that it will offend your editor/publisher, and that it’s better to be published than it is to negotiate.
Those writers are wrong. Worse, they’re willing victims. The first drafts of any contract are the worst drafts of that contract. Some clauses in that contract are there to see how poor a negotiator the person on the other side is. If you accept the contract with all of the original clauses in place, then you’re volunteering to be screwed. Bottom line.
Worse, the publisher knows what you just volunteered for. The publisher might be happy with your willingness to cave, but your editor isn’t. At some point, you’ll wake up to your stupidity and your editor will either lose you to another publishing house or take the brunt of your (ill-informed) anger.
If you’re worried about looking bad in a negotiation, then sign a terrible contract. I can guarantee that someone on the other side will either angrily or gleefully call you an incredible idiot behind your back. And I can also guarantee that the other side will know you have no business sense and no spine whatsoever, and those people will take advantage of you in horrible ways.
After all, you’ve just signed up for it. Literally.
If you believe your agent will protect you, then you have an old-fashioned idea of agents. The worst contracts I’ve seen in the past five years have been negotiated by young agents without law degrees. Most of the writers who signed those contracts were bullied into it by the agent, who either didn’t understand the contract or, worse, did understand and wanted the deal completed no matter what.
As I’ve said in all of these posts, hire an intellectual property attorney to help you with all contracts that concern your writing, including any agreement you think you should sign with an agent. You have to know what you will and will not accept in a contract, and before you can do that, you must know what you’re selling. If you have no idea that you are licensing your copyright when you make a book deal, or if you don’t know what that means, then buy The Copyright Handbook and read it carefully. You won’t be able to read it in one sitting, but you might want to keep it in a place where you do grab-bag reading, like the kitchen table or the bathroom. Read a small section. You might not understand it at first, but you’ll eventually get a clue.
If you don’t believe you can negotiate, if you think you don’t have the balls to do so, then pick up my book called, How To Negotiate Anything. Believe me, thirty years ago, I didn’t believe I could negotiate either. I learned how to do it with my particular skill set rather than using someone else’s, and I’m here to tell you if I can do it, anyone can.
Finally, walk into any negotiation with the knowledge of the things you can bend to accept and the things you simply cannot accept. Be ready to walk away if you cannot accept something. It’ll be tough the first time, especially if it’s for something you really want, like a book contract, but believe me, you’ll be a lot happier in the long run if you walk at the beginning rather than accept something that makes you compromise your project, lose all your earnings, and possibly destroy your career under that name.
Don’t think any of that can happen? Then you haven’t read modern publishing contracts—at least, you haven’t read them and understood them.
In the past few weeks, we’ve discussed all kinds of deal breakers, and honestly, I can understand if most of you don’t take my advice on them. We’re all different, after all, and we have different needs and wants from our careers.
However, we all want careers. At least I hope we all do. I’m writing this column for professional writers and those who want to be professional writers. And if you are a professional writer or want to be one, then you need to have a career.
The only way to have a career is to remain in control of your writing.
Who you sell it to, and how you sell it, happens to be your business. You may take a little money for a lot of prestige or no prestige for a lot of money. You may take a long-term contract when I think you should have a time-limited one, or you might gamble on giving something away in a circumstance in which I might not.
All of those are business decisions.
However, there is one thing all of us—as writers with careers—must walk away from: contracts that control not just the project in question, but all future writings.
Right now, traditional publishers, particularly the large companies (erroneously called The Big Six), are trying to control everything about a writer, from the rights she sells to the amount of money she makes. They also want what they’re calling “a non-compete” clause.
In reality, it’s a “do-not-do-business-without-our-permission” clause.
I did write about this in last year’s article, but I was a bit more lenient toward publishers than I am now. What changed? I certainly didn’t. I believe that writers should protect their rights as much as possible.
What changed is this: publishers have started requiring non-compete clauses in almost all of their contracts, and are making those clauses a deal breaker from the publisher’s side. In other words, the publisher will cancel the deal if you do not sign a non-compete. The choice you are given is this: either you let the publisher control your entire career just because you sold that publisher one book for $5000 or you walk.
If that’s the choice you’re given, walk. Hell, run.
You have other options now. You can go to a different traditional publisher if you want. You can publish that work yourself. You’re even better off putting that book in a drawer and not mailing to anyone than you are signing that clause.
I do not say that last lightly. I almost never tell writers to put books in drawers and keep the books away from readers. But if you have to chose between giving up control of your book and your future books, or putting the book in a drawer, then for god’s sake, put that book in a drawer, and write a new book. One that won’t go to a publisher who wants to control your life and livelihood.
Because the moment you sign that clause, you give over your entire career to a corporation that cares nothing for you. Even if the clause does not hold up in court (and quite honestly, I don’t think the clause can hold up), you’d have to spend years not writing and litigating to prove me right.
Here’s the place I remind you that I’m not a lawyer. I never went to law school. But I’m an observer, and I have seen some ugly, ugly things happen to writers who have signed this clause.
What is the clause? Well, it’s not an option clause. For almost twenty years, publishers have used the option clause to have dibs in an author’s next book. In other words, the publisher got the right of first refusal on that book, and no one else could see it until the publisher made up his mind.
Properly negotiated, an option clause benefited the writer as well as the publisher, often by forcing the publisher to bid on the next book long before the first book came out. A bad option clause could prevent a writer from publishing another book for a year or two after the first book came out—and this was in the previous century.
But agents, attorneys, and most writers learned how to take the teeth out of an option clause. And those toothless option clauses remain, which is why I am not saying anything bad about an option clause. Your option clause will probably look fine.
You’ll often find the non-compete clause in the same section of your contract as the option clause. The non-compete clause will look something like this:
The Author agrees that during the terms of this Agreement he will not, without the written permission of the Publisher, publish or authorize to be published any work under this name or any other, including blog posts, short stories, nonfiction articles, novels, or the like.
In other words, the contract will prevent the writer from making a living at his craft. I saw that clause in my first contract with Bantam Books fifteen years ago and hit the ceiling. (The word blog was not in it, of course.) I thought I was going to lose this rather large contract because no way in hell would I sign a document with that clause in it.
I demanded the clause’s removal and got it with no fuss at all. (I must tell you that my agent at the time, who was all kinds of shady, recommended that I sign the contract with the clause in it, and then ignore the clause like all his other clients did. I ignored that advice, and wish I had fired him on the spot. It took me another couple years to fire him for something else entirely. Boy, was I young and dumb.)
Writers have signed contracts with that clause, however, and have done so recently. I know of at least two mystery writers who need their publishers permission to put up a blog post. I know of several more who have had to get a document granting them blanket permission from their fiction publisher to write nonfiction.
Do you really want that to happen to you? Because it could if you sign this clause. Also, look at what I wrote last week about how hard it is to get out of a contract these days. Consider that the contract, like your mortgage, might get sold to another company you’re entirely unfamiliar with at the moment. (This just happened to Avalon authors. They signed with Avalon, but now they’re published by Amazon.)
Your current publisher might not enforce that clause; the publisher/business your current publisher sells out to might enforce the clause, and make you pay damages for anything you’ve previously published after you signed the contract and ignored the clause.
Worst case, right? Yes, it is. But before you sign a contract, you must imagine the worst-case scenario. The contract you negotiate should protect you from bad things, but you have to realize how bad those things can actually be.
Let’s go back to the clause: It is ridiculous. It’s there to prevent you from controlling your craft. According to that clause, your publisher is in charge of everything you write, whether the publisher pays you for it or not. Got that?
I have seen other versions of this clause, negotiated by (idiot) agents for their established clients. Those versions usually read something like this:
The Author agrees that, during the term of this Agreement, he will not, without the written permission of the Publisher, publish or authorize to be published any work substantially similar to the Work or which is likely to injure its sale or the merchandising of other rights herein.
This is only marginally better. Seriously. You’re still asking your publisher’s permission to write something. Granted, it’s only under one name, and if your publisher withholds permission, you can start up a new pen name, but honestly…who signs this stuff? And what advisor thinks something like this is okay for a writer to sign?
Because the problem isn’t with the publisher’s permission. The problem here are two phrases: “substantially similar” and “likely to injure.” Who decides if my funny fantasy novel about fairy tale characters is substantially similar to my science fiction novels about the Moon? They are supposedly in the same genre—sf/f. Or what about my mystery series set in Chicago in the late 1960s? Is that substantially similar to the mysteries set on the Moon? They are both mysteries after all.
And who determines of those Moon mysteries “injure” the sales of the 1968 mysteries? Does the fact that I’m also publishing romance, a genre that many sf editors don’t respect, “injure” the sales of my sf books?
See the problem?
It gets worse when you think about who gets to decide. Most writers will let their publishers decide. Those writers who challenge the publisher’s decision will find their books, their careers, their livelihoods tied up in civil court, waiting for a judge to decide.
I have seen several versions of these clauses negotiated to death, with all kinds of phrases added in, but none of them are toothless, and all of them tie the writer’s output to his publisher’s permission.
For me, this clause is a deal breaker. No one controls my career but me. No one tells me what to write but me.
The best way to handle a non-compete clause is to refuse to sign one.
So…you take the non-compete clause out and you’re in the clear, right?
Hell, no. Lately these publishers have been adding something in the boilerplate section of the contract (which most agents don’t even read). A boilerplate section is the stuff that should remain the same from contract to contract—you negotiate it once, and it doesn’t change. It’s stock or formulaic language that covers expected things like insurance coverage and Acts of God. Some boilerplate can be changed and some can’t.
In the boilerplate section is something called a warranty, and in it, you’ll find language like:
The Author Warrants that the Work is original, and uses no material from any other source…
Things like that.
Only cagey publishers have started to add this:
The Author Warrants that she will not publish any other work until this contract is fully executed.
In other words, the Author can’t publish anything until all the terms of the contract are met. Meaning that she cannot publish anything until the second or fifth or tenth book of the contract is published, and maybe, depending on the wording, not even then. She might not be able to publish until the book goes out of print.
And refer to last week’s post. Most books aren’t going to go for decades, maybe more.
Seriously, folks, watch out for this stuff. Take clauses like this out of the contract. If your publisher refuses to remove language like this from your contract and you still sign it, you will have no one to blame but yourself for your tanking writing career. Because you put your signature on a legal document giving someone else control of your output.
Let’s look at the non-compete clause from yet another perspective—one of balance.
Technically, contracts should at least pretend to have balance between the parties. Theoretically, you and your publisher are equal partners in the venture of publishing a book, and your contract should reflect that. Contract law, in dozens of countries including ours, assumes that both parties are able to enter into the contract equally, with the same kind of knowledge and judgment.
If you can show, in court, that you’ve been swindled, bamboozled, or forced to sign a contract whose terms actively harm you, then the contract might—and I use the word “might” here on purpose—be canceled.
One of the things a judge will look at to see if one party is unfairly taken advantage of in the contract negotiation phase is balance. If the entire contract benefits only one party to the contract, then the contract is unbalanced, and argues—by its very existence—that the other party was taken advantage of.
The judge is not required to act here, and often will not. This is one of the many reasons I tell you to avoid court.
But let’s explore balance for a moment:
If you are a professional writer who makes her living on her writing, and you have signed a contract that does not allow you to practice your trade, then there must be some similar consideration for the other party to make the contract balance.
In other words, if your publisher wants you to sign a non-compete clause, then your publisher should sign one as well.
If you ask for a non-compete as ridiculous as the one the publisher is asking of you, then it would read like this:
The Publisher agrees that during the terms of this Agreement he will not, without the written permission of the Author, publish or authorize to be published any work that might compete with the Work, including blog posts, short stories, nonfiction articles, novels, or the like.
Imagine a publisher signing that. Oh, you can’t? Neither can I.
But let’s dial it down a notch. Let’s say you sell a vampire romance to Publisher A. If the contract has balance, then you can’t publish a romance or a vampire book that might compete with yours—and neither can your publisher. Even if you limit the non-compete to two years, imagine telling your traditional publisher that they can’t publish vampire books or romance books for two years after the publication of your novel.
Do you see now how wrong this clause is? You should not sign it because it’s bad for you. If that argument doesn’t sway you, then ask yourself if any reasonable business would sign a contract with a clause like that. Or if any business would sign a clause like that for any reason.
Your writing career is a business. Act like it.
Do not sign something that will stop you from practicing your trade.
If you don’t like deal breakers, ignore all the others I’ve discussed. Do not ignore this one. Walk if a publisher wants you to sign a non-compete.
If you do not walk away from that contract, then you probably won’t have a writing career a few years from now.
And that’s the bottom line.
A lot of you stepped up last week when I mentioned that donations decline when I write contract or money-related posts. Thank you for the acknowledgements and the kind letters. I greatly appreciate it.
I still have a few more things to cover. This topic gets bigger by the year. I’ll be doing a few more such posts before the fall begins.
The blog itself has to remain financially self-sustaining, because I make the bulk of my income on fiction (and can use the 3K I write every week for my fiction instead).
So if you learned something or like what you read, please leave a tip on the way out.
“The Business Rusch: “The Future and Balance (Deal Breakers 2012),” copyright © 2012 by Kristine Kathryn Rusch.