The universe keeps giving me excellent examples of things I try to teach on this blog. When I wrote a recent post titled “Knowing What You Want,” that example was one of the first positive examples I had found on how to negotiate.
Today’s post does not contain a positive example, I’m afraid. It’s an example of something I stress over and over again, but writers never see the downside of it—the problems with a verbal agreement.
A large number of you sent me a link to this article in The Sydney Morning Herald, in Australia. Selwa Anthony, a literary agent, is suing international bestselling writer Kate Morton for breach of contract.
Most of you sent me this as a case of agents behaving badly. And yeah, there’s probably a lot of that here. Those examples are easy to find, I’m sorry to say. I can find dozens of them, although few of them as extreme as the one from the spring concerning Donadio & Olson.
The rest of you sent me the article because the writer was beyond clueless about the business of writing. I mean, seriously. She admitted in open court she had no idea that an advance was an advance against royalties and that the book could earn a lot more money over and above the advance. The level of her cluelessness about business shouldn’t shock me, but it does. It really does.
Finding examples of writerly cluelessness is pretty easy too (although, as I said, not to this extreme, usually). What I saw in this article isn’t the agent behaving badly or even the extreme naivete of the author.
What I saw was the danger of agreeing to anything verbally.
When I teach writers how to negotiate, I tell them over and over and over again not to negotiate on the phone. I tell them to conduct all of their business by email. I also advise them to have a contract with whomever they’re doing business with, even if they have to write a short minimal contract themselves.
Writers don’t listen to me, most of the time. Even if I can convince them not to talk to someone about film and TV rights on the phone, the same writer will turn around and negotiate audio rights on the phone. Or will have a “phone meeting” with terms to be negotiated later.
The problem is that once you have that phone conversation, you’ve moved into a he said/she said situation. (Or in this case, a she said/she said situation.) According to The Sydney Evening Herald, Kate Morton says there was no phone call in 2002 that stipulated the terms of her relationship with Selwa Anthony. Selwa Anthony says there was indeed one of those conversations.
If Anthony did not take concurrent notes of the conversation or reference it in email later, then there is no proof that the conversation ever took place.
If she did take notes or mention the call in a later email, then she has legal upperhand.
It’s pretty easy to lie about what happened in a phone call. One party could say that the other party agreed to all kinds of terms. The other party could say that the phone call was about where to have lunch on the following Monday.
Without a document that backs up what occurred in the phone call, then the solution comes down to whoever is the most believable in court.
I don’t take phone calls from anyone I’m about to do business with. I take phone calls with a handful of people that I’m doing business with after we have a written agreement in place.
If we end up having a phone call, I take concurrent notes while I’m on the phone. When I hang up, I email that person immediately, saying it was great to talk and great to learn (or agree to) whatever the heck it was that we discussed.
Then I print up that email and save the printed version with my notes. I also keep the digital copy of the email in a folder on my computer and in my email program.
Why do I print? Because, my friends, I have gone through so many iterations of email programs and webservers and technology that I have learned that a digital file is not permanent. For example, this Morton case dates from 2002.
If I had to reference an email from 2002, that’s six generations of computers ago. The email program I was using at the time was Outlook (and a 2001 version at that). The email address I used no longer exists because the company went out of business.
However, the paper copy of any important email from that year is in my (admittedly messy) paper filing system. With a few hours and a bit of patience, I can find that email. If the email has to do with legal agreements or has to do with any negotiation, I could find it even faster, because my paper system is less messy when it comes to contracts, deals, negotiations, and subsidiary rights approaches.
Who do I believe in the case of Selwa Anthony and Kate Morton? Honestly, I believe the agent. I think the phone call happened. I think Anthony told Morton the details of their relationship.
I think Morton didn’t understand a word of that conversation and did what most people do when they don’t understand something: she forgot about it because to her, it wasn’t important.
I have no idea how the court will resolve any of this, and frankly that’s between the two of them.
But for you writers out there—including you indies who will do a lot of negotiation (even with lawyers as your back-ups)—learn from this.
Here’s what you need to learn:
- Understand the business of writing
- Learn copyright, because that’s what you license. (If you don’t know this, buy the current version of The Copyright Handbook and read it, reread it, and then read it again until you understand all of it.)
- Never talk to someone you want to do business with over the phone. Have your preliminary conversations in email (not texts. Email).
- Hire an attorney to help you with contracts, even if you only hire that attorney for one hour to explain to you what a contract says. Let the attorney backstop you—meaning you do the nitty gritty of the negotiation, with the attorney providing advice.
- Do not hire an agent. Ever.
- Once you have a legal agreement in place with the people you’re doing business with, then you can talk to them on the phone if you make concurrent notes for each phone call, and if you then email the person afterward to make sure that you have a written record of everything you discussed.
- Print all your emails. Have digital back-ups as well.
- Trust but verify. If someone tells you that they work for a big production company, use IMDBPRO (and Google) to see that’s true. If they want to handle your finances, say no. If you are going to partner with them on something, check their references, including their financial references.
- Never agree to anything verbally even if you’re been doing business with this person for decades. Have a contract or at least a paper trail to show what you’ve agreed to.
- Prepare for the worst. Sometimes the worst is what happened to Kate Morton. She made 17.3 million dollars, most of which she never expected to earn. That’s creating all kinds of problems for her, problems she clearly never thought of. So, sometimes, my friends, success is the worst thing that can happen to you—at least in your relationship with the people you do business with.
- Make sure your agreements with other parties include provisions for success and failure.
- Make sure the agreements are easy to sever.
- Make sure you understand the business of writing.
As I said for years, the writers whose careers end badly are always writers who don’t understand business. Make sure you’re not one of them.
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“Business Musings: An Example of Writerly Cluelessness,” copyright © 2018 by Kristine Kathryn Rusch. Image at the top of the blog copyright © Can Stock Photo/Arsgera.