Business Musings: Power (Contracts/Negotiation)

Business Musings: Power (Contracts/Negotiation)

Much of Apple TV’s high profile The Morning Show focuses on contract negotiation. The show, based on Brian Stelter’s book Top of The Morning: Inside the Cutthroat World of Morning TV, focuses on a network morning “news” program on the day its popular male anchor gets fired for sexual misconduct. No! Apple insists, this is not about Matt Lauer, and that’s mostly true, although Matt Lauer meets Charlie Rose meets all those other piggy guys in most of the details of the show.

There are several negotiation scenes in this show. Jennifer Aniston’s character, Alex, who sat opposite Steve Carell’s Mitch for 15 years, is in contract negotiations and they’re going poorly. The network wants to get rid of her because she’s an older woman (and if you think that hasn’t happened, where have you been?). Mitch, on the other hand, just got the most lucrative contract in TV news—before the scandal broke. Because older guys have gravitas (and, apparently, a pants problem).

Both Alex and Mitch have contract issues that are part of the drama. The unbelievable turn of the show—the one thing that we have to suspend our disbelief for—is that an inexperienced 40ish woman gets hired for Mitch’s anchor chair. How that happens is delightful and is believable enough that this old broadcast veteran had no trouble thinking it could happen.

It happens because Alex takes control of her own power. She realizes what she can and cannot do. More about that in a moment.

Throughout episode 2, Alex has been negotiating through her agent/manager, and emphasizing that she wants to approve the new cohost of the show, the person to replace Mitch. The agent/manager wants none of that, and would rather get Alex more money, or keep the job.

We viewers know pretty early on that the network not only will not give her more money, it wants her gone. No cohost approval, nothing.

So when she walks up to the new head of the news division, Cory Ellison (played masterfully by Billy Crudup), and demands cohost approval or she will walk, Cory gives her a cold smile and says, “So walk, Alex.”

She stares at him, he stares at her, and the rest of the plot moves forward. Because she knows in that moment that he doesn’t respect her—no one at the network does—and she will lose in a conventional negotiation.

She makes it unconventional, in a twist that I wouldn’t ruin for you.

In the next episode, she’s in a meeting with a bunch of suits, and they excoriate her for what she’s done, telling her she’s violated the contract (which I have no idea if she has or not—we never see it), and hurl verbal abuse at her. The sound fades as we focus on her point of view. The men—and they’re almost all white men—scream on and on about what she’s done, and then she grabs a glass of water before her, and slams it on the conference table.

The sound comes back—and it’s mostly shocked silence.

She tells them that they will do what she wants, because she’s the only anchor they have left. You think you have all the power, she says to them (I’m paraphrasing). But you don’t. I do. Because I have America. America loves me. And you need me right now.

She’s right: she has the audience. They don’t. And they’ve just lost her co-anchor to an ugly scandal. One more, especially if she pulls the curtain back to reveal how she’s being treated by the men in the room, and the entire morning show might collapse under bad press.

She takes her power, and leverages it into a masterful contract negotiation.

I wanted to stand and cheer. Not because I was rooting for her, but because she recognized her power and used it. More on this in a moment.

The entire show is about power, and I’m not going to recap it all, because some of you might want to watch it. However, I’m going to point out a third negotiation item in the show, one that the recappers don’t even mention (which irritates me, because that means I can’t tell you what episode it was in—yes, I’ve been binging this).

Mitch, fired once his sexual behavior hits the news, is meeting with his attorney about the contract. The network refuses to pay a dime on that contract, canceling it instead, citing the morals clause.

He launches into a tirade, saying that a morals clause can mean anything they want it to, which is why it’s there. And he justifies signing it, primarily because he didn’t think it important enough to negotiate (for a variety of reasons). Besides, the network has known about his behavior and overlooked it—as they have with all other big earners.

Only the winds of change have blown in the #MeToo era, and suddenly, he’s not just out of a job, he’s not getting any cash infusions either. Because the network—which had never used a morals clause on anyone—used it on him.

There’s no doubt he violated the clause, and he has no recourse, because he signed that contract.

Okay. Why am I talking about a TV show that most of you have never watched and probably never will?

Because, for all its soapy elements, for all the wonderful acting and scenery chewing and moral discomfort of the show, the one thing the show is getting right is high-level contract negotiation.

The key to negotiation—in any contract—is to understand the power relationships.

I’m going to save the “I have power here” meeting with Aniston’s character for last, because I have the most to say about that.

Let’s start with the morals clause. Realize that most traditional publishing contracts now contain a morals clause. Because of some writers who are…um…ick. But, icky Mitch is right: a morals clause can be used to get rid of anyone for any reason.

But let’s move beyond the morals clause (which, by the way, you should never ever sign, even if you live a completely blameless life). When you negotiate a contract, you can’t justify away certain clauses in that contract.

If you find something objectionable, particularly if that clause is in there as a weapon to break the contract (like a morals clause), then you need to ask for that clause’s removal. If you’re told that removing that clause is a deal breaker, then do not do business with that company. Walk away.

We’ll get to walking in a minute, but let’s finish with the objectionable clauses first. Icky Mitch signed a great contract for him and for the network, but he didn’t follow my first rule of contract negotiation.

Pretend that the nice person across from you gets fired and is replaced with a demon from hell. That’s not exactly what happened to fictional Mitch. What happened to him is the other thing that can go wrong with a contract: the culture can change.

I expect every clause in a contract to get activated at some point. If some company wants that clause in the contract, the company wants it there for a reason. Just because the clause has never been weaponized against you, or even against anyone in the history of the company, doesn’t mean it won’t be.

Sometimes the person activating that clause will be a demon from hell, but sometimes it’ll be the nice person who negotiated across from you—because the cultural context has changed.

For example, some traditionally published male writers I know who have long-running book series have been told by their publishers that the next book needs to have a female name as a co-author. Realize these series (and there are several by several writers) have been bestselling for a decade or more. But in response to the change in culture and calls for diversity, some idiot publishers think that they need female names on books written by men.

Um, publishers (you nutballs), that’s not diversity. That’s pandering. If you want diversity, have women write their own series and put the same kind of marketing muscle behind those books as you do the long-running series by the male authors. Grumph.

A couple of these male authors have said no. At least one had to walk from his long-time company. And a couple, who signed bad contracts, will have female bylines added to the books because those guys had signed away the right to control their bylines in the contracts. (Not kidding.) They figured, who would ask for that?

Who indeed? Well, honestly, the person who wrote the contract put that clause in there in anticipation of something to do with the byline.

This kind of thing doesn’t just happen in traditional publishing. Anytime you sign a contract, you need to weed out the gotcha clauses. They’re particularly prevalent in movie and TV contracts, but I’ve seen them in game contracts and comic book contracts, and even, for indies, contracts between the writer and her (unnecessary) developmental editor.

If the entity you’re negotiating with won’t budge on certain clauses, and you won’t sign with those clauses in the contract, then you must walk away from the deal. I’ve done that more times than I can count.

Sometimes, the other side will come back with a different deal.

The two most memorable times were when Dean and I were negotiating a deal to buy a house, and the seller wanted a ridiculous amount of money. We were offering a tiny amount. The house had been for sale for three years without so much as a nibble. We walked away from that seller…and got a phone call from a real estate agent two weeks later, saying that if we wanted to resubmit the offer, the seller would consider it. We did, they did, and we bought the house.

The other memorable time was negotiating a TV deal with a producer for a big studio. She and I got along great, but when the option agreement came, it was full of truly ugly clauses, including one that would strip me of my copyright forever. I told her I couldn’t sign it. She took it back to legal, and they said they wouldn’t budge. I walked.

The next day, she came to me with a different offer, one between us personally, and not with the company at all. I did that deal, and made some good money on it, without losing my rights.

However, when you say you’re going to walk, you have to mean it. Sometimes you have the luck I mentioned above with the TV deal and the house. Sometimes, you get the response fictional Alex did: Well, walk then, Alex.

If you threaten to walk and you still don’t get what you want, then you have to walk. Because some day you might be negotiating with those people again, and you’ll need the credibility that the walk gave you. And if you don’t walk, then it’ll get around whatever industry you’re negotiating in. Yeah, she says she’ll walk, but she won’t.

You don’t want to be that person.

Finally, and the most important thing I’m going to share from these fictional contract negotiations, is finding your own power.

I write about contracts and negotiation all the time, and I always get hammered by writers who claim they have no power, so they have to give things up.

And yep, if you take that attitude into a negotiation, you’ll always be on the losing side.

A negotiation is, quite simply, an attempt between two parties who want something from each other to come to terms they can both live with.

Note this: both parties want something from each other.

Both. Parties.

So if you’re negotiating a book contract with a publisher, the publisher wants that contract. If you’re a new writer, you have less clout than I do, but that doesn’t mean you lack clout. It means you have less of it.

You can still do a lot of negotiating, because that publisher wants your work.

You usually have more clout in movies and TV, believe it or not. By the time a producer comes to you, they’ve usually done quite a bit of legwork on the property, and they believe that your writing fits whatever they’re trying to develop.

Sometimes, they’re just nibbling. Sometimes, it’s easy for them to walk. But often, they will already have interested parties on the hook, and the last thing these producers want is to lose face with those interested parties. The producers don’t want to go back to the interested parties and say, Well, the writer won’t work with me after all. Ooops. I never secured the rights. Sorry.

I can’t tell you how often I’ve made a small crapload of money on producers who presold my book without an agreement from me. Those folks are desperate, and if I walk from the deal, they lose all credibility.

How do I learn what’s going on? By threatening to walk. If they panic, I know what they’ve done.

I understand my power. So many writers don’t, particularly writers with a fanbase. Those writers have clout. They have the ability to ask for more than most other writers do. And yet the writers with clout often act like baby writers, and never ask for anything, always thinking they’re in the one-down position.

That’s why I loved that sequence in The Morning Show. Fictional Alex realizes in those two beats (and a third) that she has unused power. That she has waaaay more power than she realized, and she’s going to use it now—and she does.

Could her maneuvers have backfired? Sure. I know of a number of TV negotiations where the person who thought she had power didn’t have as much as she thought. That’s the risk you take when you own your power.

But there’s more of a risk when you don’t. You become a perpetual victim, which is what most writers—bestselling or not—are. If you think you’re powerless, you will always be powerless.

Writers are powerful by definition. We are the content creators. Most people can’t come up with good original stories. Most people in the entertainment industry (movies, games, publishing, comics) excel at making derivative works, works based on what other people have created.

Content creators are essential to dozens of industries now. And if someone wants to make your book into a derivative work, like a game or a comic book, then they want something from you. Which automatically gives you clout.

Not J.K. Rowling clout. But enough that you can say no, and have it sting a bit. Enough that you can ask for gotcha clauses to be removed from contracts. Enough that you can maintain control of your work and your copyrights. You don’t have to say yes just because someone is interested.

And you don’t have to give them all the power in the relationship. You’re not some little minnow in an ocean. You’re the content creator, and more often than not, those other parties came to you because of what you’ve created.

They’re in the one-down position, not you.

In each negotiation, figure out what kind of power you have. Then use that power.

Sometimes, the only power you have is to withhold your agreement. Believe me, that’s a massive power. And one you should be willing to exercise, particularly with a company that doesn’t respect you—that wants to own your copyright or get you to sign other gotcha clauses.

Think about this: there are writers who seem to have had power from the start of their careers. How did they get that power? They acted powerful in a negotiation. They remained strong. They let the blather of the other side wash over them, the way that The Morning Show showed it in that conference room scene. The torrent of words faded into a buzz, until the writer said, Enough. I’m done with this. Here’s what I want. If I don’t get that, I’ll walk.

And some writers have. I have, from the beginning of my career. At times, it hurt. I said no to money I desperately needed.

But when the indie revolution started in 2009, I was one of the few writers who had a lot of inventory that I owned. I hadn’t sold everything to my corporate overlords. I was in a position to take advantage of the changes, because I had the foresight to take care of myself years before the world changed.

How do you get power?

Act like you have it.

That’s the real secret. It works with confidence too. Even if you have none, pretend like you do. The outside observer—the person you’re negotiating against—won’t know the difference.

And slowly, your confidence will build.

So will your power.

Sounds simple, right? It’s not. You have to take risks. Writing is already a risk. So you have practice with taking risks already. Now move that practice into negotiation.

You won’t get it right all the time. No one does. The key is to get one thing right—whatever is most important to you. Hold to that. Learn from your mistakes. Forgive yourself for them. Then move forward, planning to make more mistakes. Because the more mistakes you make, the more you learn. The more you learn, the more confident you get. The more confident you get, the better you will be at negotiating.

If you pay attention, you can find a lot of examples of power and power brokerage in the real world, and in fictional ones. I was delighted to see some great negotiation stuff in The Morning Show.

But…think about this: As I was doing some Google research for information on The Morning Show, mostly trying to remember (without rewatching) what episode the Mitch negotiation sequence was in, I learned that the show was based on the Seltzer book.

So I rewatched the opening credits. No mention of the Seltzer book. I tried to find the closing credits and couldn’t, not at first. But I searched for them because—again—I don’t recall any mention of the Seltzer book.

Instead, I found in reviews and puff pieces on the show, all published in November, some version of this sentence: The Morning Show is loosely based on Brian Seltzer’s book Top of The Morning: Inside the Cutthroat World of Morning TV.

I finally found it by going through the closing credits slowly. They say something like “research assistance provided by Top of the Morning by Brian Stelter.”

And Stelter is named as a “consulting producer.”

Why would the credit be so vague? I’m assuming that the legal department for the production studios worried that Seltzer’s book, which is about the Lauer/Anne Curry incidents, among other things, would imply that the entire show is about Lauer, and someone–Lauer?–might sue. But I could just be making this up.

Whatever caused this bad credential, it’s clear that someone—his agent, his manager, and most definitely, him—did not do a great job of negotiating his credit. The book should have been listed in the opening credits of the show.

There should have been a title card on every episode that read something like “inspired by Top of The Morning: Inside the Cutthroat World of Morning TV by Brian Stelter.”

Why? So that his book would get the big sales bump from this show. Instead, I ended up surprised by the association. And there won’t be a single book sale from it, because no one knows about it.

You see, for me, a deal breaker is no credit for my book. I ask for that in every negotiation for derivative works. Every single one. It’s that important to me.

But I think about these things. And most writers think their agents will magically make these things happen.

No one magically makes anything happen in negotiation. What happens is a little power struggle between two entities who are trying to make some kind of deal. Eventually both sides will compromise. Or should compromise.

Too often, the writer gives up without a fight, because the writer has no idea about the power she wields by being a content creator.

Time to start paying attention to that, folks. Because the only person who cares about your well-being, at least in this realm, is you. Everyone else has their own agenda.

If you remember that, you’ll be fine.

Make mistakes. Take risks. And stand up for yourself—because no one else will.

*********

It’s amazing where inspiration comes from sometimes. I’m finding a lot of it this year. Some of it is licensing, but some of it comes from what I’m reading or watching. Not to mention all the articles and links you folks have sent me. Thank you!

 I’ve done some more licensing blogs on Patreon, and I’ll be doing more here. I’ve gone some other things to research, but the front part of this year has been insane. So I’m a little behind, which is not a surprise to me.

I’ve got a lot to share with you folks, though, and I’ll do a bunch of it on Patreon in short bursts. I’ll continue to do these posts on the website as well.

If you feel like supporting the blog on an on-going basis, then please head to my Patreon page.

If you liked this post, and want to show your one-time appreciation, the place to do that is PayPal. If you go that route, please include your email address in the notes section, so I can say thank you.

Which I am going to say right now. Thank you!

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“Business Musings: Power,” copyright © 2020 by Kristine Kathryn Rusch. Image at the top of the blog copyright © Can Stock Photo / ryanking999.

 

11 responses to “Business Musings: Power (Contracts/Negotiation)”

  1. Teri Babcock says:

    Top of The Morning: Inside the Cutthroat World of Morning TV

    I just put a hold on this book at my library. There is one copy in the entire system and there were no holds on it.
    I’ve had several people mention the show to me, and seen the ads for it on bus shelters. At least as far as my location goes, this show is pretty high profile. There should be at least a dozen copies of the book in my library system, and triple the number of holds. But no one has asked for it.

    I can’t guess how much money this has cost the author and their publisher. Probably enough for the author to shed tears… once they realize what they’ve done to themselves.

  2. Geoff Palmer says:

    Regarding your comment about the book credit being on the show’s title card, a while back I asked a well-known producer friend about this — having seen, or not seen, it on a number of shows. “At what point should you insist on this?” I asked. His response: “Day one, Item one.”

  3. LL says:

    Thank you, Kristina! Wonderful article.

  4. Indiana Jim says:

    I guess you mean Brian Stelter?

  5. Ken Hughes says:

    Another resounding lesson. Many thanks.

    It’s especially sad when writers give up their copyright. We’re the only ones who can create the material at the heart of the system, but we can only use it by trading it all away? Where’s the sense in that?

  6. Vidya says:

    Hi Kris,
    Thanks for the food for thought. First, it came as a surprise to me that most traditional publishing contracts now contain a morals clause.

    Second, it would never have occurred to me to object to such a clause. I live a blameless life, and I’d assume this clause was meant mainly for men in the MeToo era, and since I’m not a man and I haven’t sexually harassed anyone, why worry?

    Now I wonder. If we did refuse to sign such a clause, wouldn’t it just make publishers think we must have something to hide or we’d sign it? Might they then hesitate to offer a contract?

    • Who cares what they think? You’ve got to stop caring about that. These clauses are gotcha-clauses. You walk from them. They’re impossible to define and the definition changes. Heck, if you’re female, wearing skirts above the knee in the States was immoral 100 years ago. It still is in some countries. So cut those out of the contract, no matter what.

    • AlexB says:

      Never, and I do mean never, accept the “if you have nthing to hide you have nothing to fear” logic. Anyone using it on you is trying to rob you of your ability to fight back against future unknowns.

    • Kate Pavelle says:

      Being a female isn’t much of a protection, as was driven to me during an employee orientation at an all-girls summer camp. Everyone, from 16-year old CIT (Counselor-in-training) up got the spiel: Kids can accuse you of anything. Use the team system, always have another C, CIT, or adult with you, never be alone with the kids. And yes, some abusers are women, it’s not all men. Measures I used to see as “distrustful” were suddenly a lifeline to having a credible witness in case something went down.
      There is no such thing as a blameless life. All it takes is an accusation, and gender is no protection.
      (This made live-shooter contingencies interesting. Priorities change under such circumstances.)
      Writers have interesting day jobs 😉

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