Business Musings: Protecting Your Content and Your Name (Contracts/Dealbreakers)
Back when I was writing a lot of tie-in novels for Pocket Books’ Star Trek division, a brand-new editor asked me to help him rescue a short story anthology. It seems that the main writer on the project had quite unexpectedly. The writer had outlined the story, and the outline had been approved by Paramount, which was a major hurdle. What the editor needed from me was an actual draft of the story.
In other words, none of the characters were mine. The plot, setting, and theme were not mine. The editor needed my style as a writer and my name on the cover. That was it.
I had never worked with this editor before. My usual Star Trek editor advised me to stay clear. But, I figured, it was just a short story. What could it hurt?
Well…it didn’t exactly hurt. But it was perplexing. I wrote the 6,000 word story as requested from a 2,000 word outline. Turned the story in on time. Got an acceptance, and the ridiculously high acceptance payment.
Then I got the copyedit.
Which wasn’t a copyedit. The editor himself had rewritten every single sentence of the story. Every single one. Sometimes adding passive voice. Sometimes making the meaning unclear. Always dumbing down the content and the voice and the point of each sentence, let alone each paragraph.
I looked at that, glanced at my contract, and realized that even though this short story was written as work made for hire, I could make a huge stink about this. I could pull my name or pull the story or cause all kinds of grief.
In the end, I decided to leave it alone. If you look up this short story now, you’ll see the most poorly written thing ever published under my name.
But the outline wasn’t that good in the first place, it was a rescue, and the other author’s name is underneath mine, so I figured anyone who saw my name would think that the collaboration went poorly.
It had indeed. I found out later that this editor rewrote every single sentence of everything he bought, from short story to novel, and got a reputation inside the publishing house for being the slowest editor in the entire company. Gosh, I wonder why. And his writers hated him. Yep. I refused to ever work with him again, and I told other authors to stay away from him.
Nice man in person, though. Sweet, charming, congenial. And a total doofus.
I mean, if you’re going to hire half of the team (me and Dean) writing most of the Star Trek novels in that period of time, then you should trust her abilities to appeal to the fans. But there was nothing of me in that piece. Nothing at all.
That is the only time in my recollection that I can recall allowing an editor’s or copyeditor’s full rewrite of my work to get into print. I’ve had worse rewrites in my career, including a copyeditor who changed every single piece of punctuation in one of my romance novels, but I never let those go through under my name.
I cited contract terms, refusing to allow the changes. I pulled books from publishers because of shenanigans like this. I got copyeditors fired. Repeatedly.
I defend what I write. My writing in some story or novel or nonfiction article might be awful, but it’s mine. If I put my name on it, guaranteed—except for that one short story—every word in the piece is a word I wrote or approved. Every single one.
I’ve written about defending your work before, most recently in March in a post titled “The Copyedit From Heck.” Usually when I write about these things, I’m writing to younger writers who don’t believe in their own abilities. These writers—indie, hybrid, and traditional—need to trust their inner rule breaker and go with the way that they had written their stories in the first place.
But today, I’m writing about contract terms. And the ones that I check for first are the ones that most writers ignore.
Remember, early on in this process, I told you that 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. In every single short fiction contract I sign, I change the publisher’s right to “edit the Work” to “copyedit the Work.” I always add a line that ensures I must approve any changes, including those copyedits, to the Work.
If I don’t like the copyedit, my version stands. If my version isn’t going to stand, then the story doesn’t get published. Period, end of story.
Usually, most publishers—both book publishers and short form publishers—allow those changes.
But in 2011, I started encountering some publishers who refused to allow me to control the content of work published under my name. These clauses first appeared in British contracts, and then migrated to the U.S., which I found (and find) odd, since it usually works the other way around.
I had just negotiated a book deal with a British publisher, getting rid of a ton of this messy stuff. Then a friend of mine, a writer I respect greatly, asked me to contribute nonfiction piece to an anthology he was putting together.
No problem. I wrote the piece and he approved it.
Then I got the contract.
First off, the contract started out badly with this:
In consideration of a fee of £50.00 (fifty pounds) and 2 (two) paperback complimentary copies of the Work to be delivered to the Author on publication of the Work by the Publisher, the Author hereby grants to the Publisher the sole and exclusive right and licence throughout the world to produce, print, publish, copy, store in any medium by electronic means and otherwise exploit the Contribution or any part of the Contribution or any derivative of the Contribution in all languages in every form or format whether now known or hereafter invented, including without limitation print, audio, digital and electronic form and in each case to license others including without limitation associate companies of the Publisher to do any or all of the same. The Publisher shall have absolute discretion as to the exercise, sale or other dealing of the rights granted herein.
Yuck. We’ve discussed this kind of thing before. Except for the copyright notice, the publisher now controls all of the content here in any means forever without limitation. I knew how to change that, but we didn’t start our relationship well. I was making notes. There were a lot of other problems, all noted.
Then I hit this:
The Publisher may make such editorial amendments to the Contribution as the Publisher considers necessary.
The publisher can do exactly what that Star Trek editor did. Under this British contract, the publisher had the right to change everything in the document if the publisher deemed it necessary to do so. The writer had no say. In fact, the writer did not get to see copyedits or proofs or anything.
The publisher got total control.
Then, this lovely publisher added this:
The Author hereby asserts to the Publisher and the Publisher’s licencees the Author’s moral right of paternity in the Contribution. The Author irrevocably and unconditionally waives the Author’s moral right as provided in the Copyright, Designs and Patents Act 1988 to the extent the Publisher deems necessary to allow the Publisher to exercise and license the exercise of the rights granted to the Publisher under this Agreement.
I know most of you don’t understand this or why it’s so horrifying, particularly in the context of the rest of the contract. So to explain, let me tell you my theory of contracts.
Clauses exist in contracts for a reason. Someone put those clauses in that contract on purpose.
Double-down on this theory when you ask for a clause to be removed and the other party refuses to remove it. If I ask for a change in a contract, and the other side refuses to make that change or even work with it, then I know that the other side plans, at some point, to exploit that clause in the contract.
Remember that I am not a lawyer, so I can be wrong about this, and nothing I do here constitutes legal advice.
But…with my theory of contracts in mind…let’s look at “moral rights” for a moment.
“Moral Rights” differ depending on which country issues the document. The United States does a crap job with moral rights. Europe pays a lot more attention to moral rights than the U.S. does.
But the protections differ. And nowadays, writers generally sign contracts that license World Rights. In theory, the U.S. law should apply to U.S. authors. But…that’s not how things always work, especially in the law. And I also know that a lot of you who read this blog are not writing here in the U.S.
So…on moral rights, here’s the short version. Moral rights in a work do not refer to morality. It might be better to call this Integrity Rights or perhaps Reputation Rights. Those aren’t entirely accurate either, but they’re helpful in understanding what I’m about to say.
Essentially, an important part of moral rights protects the use of the writer’s name. Usually moral rights are affirmative—the writer has the right to put her name on something.
But as with most things contractual, I prefer to look at the downside. The writer also has the right to pull her name from work that no longer represents her.
There’s a lot more to moral rights. For example, in Europe, it’s impossible for a writer to give up her moral rights by contract. However, many companies ask the writer to waive her rights (not license them or transfer them). According to lawyerly blogs I looked at tonight, the European courts probably won’t uphold that either, but who knows? It’s courts, and you don’t want to get to a court. You want to negotiate bad clauses out of a contract entirely.
(For an analysis of moral rights, take a look at this site.)
So…let me give you the skinny on this contract as it is written in regards to editing only. The British publishing company has the right—if the publisher deems that right necessary—to completely rewrite my article. They could change everything. They could add stuff I find objectionable—political points of view, for example. They could libel someone through careless writing or even deliberately. They could take a piece in which I say I love something, and change it to say I hate it.
They can do all of that, because I would have signed that right away. Then I would have waived my right to remove my name as the author of the piece. So they could write all this stuff, and claim I meant it, because my name is on it.
And…the article stays in print in collections and other anthologies and online and in newspaper articles and in skywriting—all for the lovely exchange of 50 pounds and two authors copies of the original book.
Honestly, these weren’t even the worst clauses. There were other ugly clauses—a minor non-compete, and then a clause that said they were under no obligation to publish anything.
Oh, and one that drives me as batty as the editing clauses: they have the right to my name. Not just to use my name in publicity. I “empowered” them to use my name in any situation they “considered necessary.”
I see this clause a lot. Writers give up the right to their own names to a corporation for a few thousand dollars and the publication of a novel. Or in this case, about $100 and two copies of an anthology. Nope, no, never, nuh-uh, not happening. Not my name or my pen names or anything else.
Or my likeness. Or anything about me.
And these clauses—all of them—are turning up in short fiction contracts, article contracts, and other agreements. Not just in novel contracts.
So, you’re wondering, what did I do in this circumstance? I looked at this contract and decided that it wasn’t worth negotiating. The contract would have to be thrown away, and we would have to start over. I really didn’t care about getting published in this project enough to spend weeks negotiating it. I doubted they were going to pay me more than fifty pounds, and my time is worth way more than that.
I wrote to my editor friend, and told him that regretfully, I couldn’t sign this contract. He wrote back, asked what I objected to, and I told him my problems with the contract. He didn’t comment. He said simply that he would see what he could do.
Next thing I hear is a clarifying email from the “commissioning editor.” She offered to change some of the clauses. And then, on the editing clause, she offered something that went on for nearly a page.
Buried in the middle of that was this lovely addition:
The Author expressly acknowledges and agrees that: (a) in the event she does not undertake the Revisions as requested by the Publisher pursuant hereto, the Publisher may its absolute discretion: (i) withdraw the Contribution from any and all subsequent edition and/or versions without any ongoing liability or responsibility on the part of the Publisher (or any authorized third party thereof) to the Author in respect of the same (including without limitation by way of remuneration, publication and/or credit); and (ii) freely substitute the Contribution and/or itself (or by a third party on its behalf) undertake the Revisions…
In other words, she was adding a clause that still gave them the right to rewrite my work. Or have someone else rewrite it.
Then she added that they refused to change the moral rights clause at all.
So, with all that lovely language, they said the exact same thing and did not change the contract at all. They just made their intentions clear.
I wrote back, very politely, saying that I could not sign the contract with the stuff above, and they needed to remove it (along with any other similar language in the contract which I specified). I also insisted, again, on deleting the clause waiving my moral rights.
She wrote back, refusing to change the editing clause, and then said this:
I’m afraid the moral rights clause is not one that I am able to make any alterations to. It is a standard clause across all of our contracts and our lawyers will not accept changes to it. As you say, this is a clause that relies somewhat on trust; I can only assure you that we will not act unreasonably, as it would not be in our interest to do so….
I kid you not. She wrote “Trust us. We won’t hurt you.”
After I stopped laughing, and showing this around to my writer and lawyer friends, who also laughed (except for one lawyer friend who got incensed), I wrote her back politely, again withdrawing my article from the volume.
By now, I had spent more time on the stupid contract than I had spent writing the piece.
One month later, I got a response from her.
She said they were willing to have me sign a non-exclusive “permissions request” rather than a contract. She enclosed it. Three paragraphs, giving them the non-exclusive right to use the piece. They could not revise it or alter it. They did not ask me to waive moral rights. They had to ask my permission to translate the piece or use it in other formats.
A very simple, very sensible contract.
And again, she browbeat me with a somewhat stupid argument. Because I’m an idiot, her very polite language said,
We will no longer hold exclusive rights across the whole collection, which makes it much harder to sell as any potential translator, for example, would have to seek to reclear permission to use your work.
Um…in other words, if you do this, Ms. Rusch, you will hurt the sales of this book and you will hurt all your little friends who have articles in it.
I ignored that part of the letter, signed the non-exclusive agreement, and the book came out in various countries, with permissions recleared no problem.
I thought I was the only person who had trouble with the original contract but it turns out that about a third of us had trouble. Earlier communication with this company made it sound like I was the Big Bad Wolf. The problem was, I didn’t care.
All I wanted to do was withdraw the article if they didn’t give me a better contract. They were the ones who kept negotiating. I kept walking away.
I wasn’t trying to hurt my little friends or tank the collection—and surprise, surprise, surprise, I didn’t.
Some quick takeaways here:
Make sure the editing clauses in your contracts—from short story contracts to article contracts to novel contracts—limit what the publisher can do to your work. You essentially should allow them to change some things to house style (like whether or not you put a capital after a colon). You should have the right to review a copyedit—and to have the final say on that copyedit.
You also need a clause that limits revisions. When there’s a clause in the contract that says that the finished book must be “accepted” by the Publisher, then you have to define what that means. If it means revisions, then those revisions should be limited to no more than two or three before the contract terminates.
I’ve known writers who rewrote their books for years before the books finally were tossed back as unacceptable by the publisher. One author I know rewrote her book every year for ten years for a textbook publishing house I worked for. When my boss left, and the next editor took his place, that editor saw this continual revision, and canceled the contract. the writer had to repay her entire advance.
She did ten years of work, revised a textbook ten times, and lost money on it.
Yep, see how I learned how bad contracts can be?
Learn about moral rights. I’m not including moral rights as a dealbreaker in the contracts here, because I’m an American author, and in theory, American authors don’t have moral rights in their books. We have other protections for our name and our content under our copyright laws.
In theory. Which is subject to change whenever the laws change.
I don’t think it’s worth tanking a contract over the possibility that the laws might change in the future. But you might feel differently.
Learn about the ways that other countries laws differ from ours. For example, libel laws in Great Britain are much more draconian than they are here in the United States. And the punishments are more severe.
Suddenly, protecting your content against the things I mentioned above becomes very, very important.
And you indie writers, think about those libel laws when you publish something wide on Amazon or Kobo. If you have a dicey section that might libel someone—even sniffs at it—then you could run into trouble outside of the United States.
Guard your name and your likeness as well as your content.
Make sure you are the arbiter of what gets published under your name, not the publisher or some employee of a multinational corporation.
The ironic thing about the story that I just told you in the blog is this: I could easily have removed my name from that Star Trek edit. I could as easily requested another editor or deleted every single one of those changes.
And that was a work made for hire, with a good contract behind it.
If I had signed that nonfiction contract for an original work, I would not have been able to do any of the things I could have done with a Star Trek short story.
If I were to ask a group of writers to judge sight unseen which contract they thought would be the worst—a work-for-hire contract for a media tie-in novel or a standard contract with a reputable publishing house—every author would have said the standard contract. And they would have been wrong.
I hope this piece helps you understand a little more about contracts. And about how to protect yourself and your work. I also hope it shows you that sometimes walking away is the best option, particularly when very little money is involved.
Sadly, that British editor was right when she told me that the contract I saw was standard. It is. I’ve seen many more like it both before and after. These contracts aren’t getting better, folks. They’re getting worse.
I have a piece that I’ll write as a concluding essay on why I think that’s so. But first we have to get through some agent and attorney posts.
The summer of contracts continues next week.
Thanks to all of you who donated this past week. I greatly appreciate the support, especially since some of this stuff is just plain icky, and I feel dirty when I write about all the ways writers can be screwed or harmed.
It’s as important to me that these posts also get shared. I want writers to know that they have options. They don’t have to sign contracts as is. They can negotiate. They can walk away—and should, more often than not.
We’re lucky. We can self-publish now. We have a lot of choices. We just have to believe in ourselves as writers.
Which is, at heart, what this particular post is all about. Defending your writing and your work and your name.
Thanks for reading it and thanks for all the support.
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“Business Musings: Protecting Your Content and Your Name,” copyright © 2016 by Kristine Kathryn Rusch. Image at the top of the blog copyright © 2016 by Canstock Photo/ studiostoks.