Writers beware: agent and publisher clauses

Brian G Turner

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I've seen a few posts on potentially damaging agreements that writers can enter into with agents.

Rather than being illegal, unethical, or bad practice, some of these issues may actually be welcome - after all, some people may be happy for an agent to handle absolutely everything, and be paid for it.

However, there seems to be no harm is making sure that writers are aware of potential issues, and how they make affect them.

I'll therefore update this post with issues as I encounter them. Feel free to add anything in following posts:


- World rights
World Rights: Agents Hold Firm

The argument is that it's more efficient - in monetary terms - for a writer to sell rights to individual markets on an individual basis.

However, world rights can mean a biger advance and the publisher pushing harder on promotion. It may be the case that additional markets would not become possible without the publisher putting their weight behind the world rights they've bought.

For example, a friend's last project was bought by a Big 5 on a world rights basis. Not necessarily the most efficient. Yet via book fairs the publisher was able to push French rights, where the book actually found its biggest market success.

- Agent clauses
The Business Rusch: The Agent Clause (Deal Breakers 2012)

Some clauses may tie an agent and writer together without any hope of termination. Some clauses may benefit the agent against the writer's interests. As ever, caveat emptor - buyer beware.

- Estate management
Business Musings: Agents and Estates (Contracts/Dealbreakers/Estates)

Management of a writer's estate may be an increasingly important issue, not least as ublishers are increasingly looking for rights to your work for the rest of your natural life + 70 years to copyright expiry.

- Copyright
11 Things Every Writer Should Know About Copyrights

Copyright isn't just about protecting your work. It's not even about simply reproducing your work. It's about how your ownership can be manipulation - and how some companies will attempt to take some parts of it from you.

- Know your rights
Know Your Rights

Anyone in publishing can leave a publisher - the staff, the investors, the contractors. Everyone except the authors.

And here's a great tidbit:

PG would like to talk a bit about authors making a decision to sign a publishing contract with a particular publisher or editor.

Isn’t that a huge reason why most authors sign a publishing contract? RomancesRUs is the hottest publisher around and some of their authors are New York Times Bestsellers. And Leticia is the best romance editor who ever walked the earth plus she is so nice on the phone. (ditto for SciFiRUs, etc.)

The idea that no one will remember RomancesRUs in ten years and Leticia will be fired in six months doesn’t enter most authors’ calculations.

It is the nature of declining businesses to attempt to consolidate their way to survival. That’s what’s been happening in big and small publishing for awhile and what will continue to happen.

Many authors sign with a publisher because of that publisher’s reputation for quality books and successful authors. Some authors will sign because they’ll be working with an editor with a great reputation for excellence and success, the kind of editor that bestselling writers mention in interviews.

Similar thinking goes into an author’s decision to sign with a star agent, one with many happy authors who say nice things about the agent’s work.

These would be good business reasons to sign a contract that lasted for five years.

However, current reputations and past successes are a terrible reason to sign a contract that will tie up rights to an author’s books for the full term of the copyright. As a reminder, in the US, copyrights last for as long as the author lives plus 70 years.

- Option clauses
Business Musings: Long-Term Thinking: The Option Clause (Contracts/Dealbreakers)

This may serve the publisher interests much more than the writer's, and may be something worth negotiating out to allow for greater flexibility in the publishing world.

- The non-compete clause
Business Musings: Long-Term Thinking: The Non-Compete Clause (Contracts/Dealbreakers)

A non-compete sounds harmless enough, but it could exist only to protect the publisher and allow them to control all of your professional output:
If you sign any version of a non-compete clause, you will never be a full-time professional writer. Writing will not be your career. Something else will, and you will write on the side for the rest of your life.




[EDIT: There are some superb pieces overall listed in this section of Kristine Rusch's website:
Business Musings – Kristine Kathryn Rusch ]
 
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These would be good business reasons to sign a contract that lasted for five years.

However, current reputations and past successes are a terrible reason to sign a contract that will tie up rights to an author’s books for the full term of the copyright. As a reminder, in the US, copyrights last for as long as the author lives plus 70 years.
Sobering thoughts.
 
Some of Kristine Kathryn Rusch comments on how traditional publishing is developing are just so scary. Take this:
Business Musings: Introductory Remarks (Dealbreakers/Contracts)

"
And here’s the really scary part: Old contract terms, some written in the 20th century before ebooks existed, are being redefined and employed as a justification for publisher behavior. These traditional publishers—particularly those that have been subsumed into a major conglomerate—are not asking permission to change the definition of the terms. They’re just doing it.

Things that were pretty innocuous in 1985 are now weapons that are being used against authors.

You’d think that agents, who are supposed to work for the writers who hire them, would prevent this whole-sale change of meaning of old contracts. But a handful of agents are complicit in this, preferring to maintain their working relationship with a big publisher than rocking the boat for a small client.

Even more agents are just plain ignorant of what the changes in the clauses mean.

Those who run the agencies, though, do understand that their income is going down, so literary agencies have become pretty draconian in their own contracts. Those agencies make agreements with their authors, usually requiring the author to give them 15% of the earnings of a particular book if the agent sold the book. That’s bad enough, especially if the agent has been fired—as two of mine have (the two who still are entitled to 15% of certain projects).

But the agency agreements are moving into a whole new, and even uglier, place in relation to their writers. Agents are demanding a piece of their writers’ copyrights as well. Some agents are blatant about it, stating in the agency agreement that they make writers sign before the writer becomes a client, that the agent will own 15% of the copyright of any book the agent sells for the writer—or in the case of one agency, 15% of the copyright of any book the agent markets for the writer.
"
 
Here is something I've meant to share here. My lawyer sent this to me, and we made sure to include all fair contract terms on my book contract.

contract principles.png
 
This kind of stuff is what made us decide not to even submit to large publishing houses, and only possibly, maybe, look at smaller publishers. Losing control of your own works and worlds is a scary prospect, considering the vast amount of work, love and time we put into them.
 
I just wanted to make the point that while many will think publishers = Big 5, it's smaller independent publishers I've especially seen come up for criticism over terms and royalty rates.
 
This kind of stuff is what made us decide not to even submit to large publishing houses, and only possibly, maybe, look at smaller publishers. Losing control of your own works and worlds is a scary prospect, considering the vast amount of work, love and time we put into them.
To second Brian - this is not generally a risk with the big houses but the smaller ones. Most big houses have standard, good, contracts to be negotiated on. Smaller houses (not by all means all - there are some great small pubs out there too) tend to have boilerplate contracts which are the ones appearing in Absolute writes bewares. I've seen some shockers.

So, to safeguard your work - you"d he much better off only approaching big publishers than the other way around (but, mostly, know your rights and then you can negotiate with any of them.)
 
The non-compete clause
Business Musings: Long-Term Thinking: The Non-Compete Clause (Contracts/Dealbreakers)

A non-compete sounds harmless enough, but it could exist only to protect the publisher and allow them to control all of your professional output:

From that links:

Around 2012, publishers 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.

I bring this up again, partly because it resurfaced on Twitter - but also because there was a big story about this a few years ago.

I ran a search of the forums but couldn't find it, so here are the links:
Amazon vs. Penguin
DAVENPORT DIALOGUES: SLEEPING WITH THE ENEMY: A CAUTIONARY TALE
 
Another interesting piece, specifically on editing clauses - which could allow a writer's work to be rewritten and edited and then used without their consent:

http://kriswrites.com/2016/07/27/bu...-content-and-your-name-contractsdealbreakers/

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.
 
And one this week about how indie authors need to be very careful about contract terms, because agents can end up writing up an agreement that gives them rights to all previous and future works:
Business Musings: Agent Agreements (Contracts/Dealbreakers) – Kristine Kathryn Rusch

Then she ends with:

People! Can I say this any clearer? Stay away from agents. Sell your work yourself. Hire an attorney to negotiate the deal.

You don’t know how to sell your work to traditional markets yourself. That’s probably good. Because right now, you don’t want to. The contracts are terrible. The treatment is terrible. The benefits are terrible.

There’s almost no upside to selling traditionally on novels right now.

...

And seriously, whatever you do—traditional or indie—please don’t hire an agent.
 
I don't know if it's been mentioned before, but the UK's Society of Authors has produced a guide to publishing contracts. I found it useful when negotiating mine.

http://www.societyofauthors.org/sites/default/files/Guide to Publishing Contracts_1.pdf

Also very very important: SoA offer a free contract vetting service for members, using experienced literary attorneys.

It's a really vital service, and well worth the membership cost. Even without an agent, UK writers can negotiate a good contract using SoA.

You are SoA-eligible the minute you're offered a publication deal of any kind.
 
People! Can I say this any clearer? Stay away from agents. Sell your work yourself. Hire an attorney to negotiate the deal.

You don’t know how to sell your work to traditional markets yourself. That’s probably good. Because right now, you don’t want to. The contracts are terrible. The treatment is terrible. The benefits are terrible.

There’s almost no upside to selling traditionally on novels right now.

...

And seriously, whatever you do—traditional or indie—please don’t hire an agent.

Honestly, this advice feels like a train wreck waiting to happen.

  • General attorneys are useless for literary contracts. They don't have the understanding to handle all the weird ins and outs of publishing, and they don't have the experience to tell them which clauses are standard, which are set in stone and never change, and which are changed every time.
  • Literary attorneys are few and far between, and don't always have the experience and networking contacts of a working agent in a reputable agency. Most Big 5 contracts go via agents, not attorneys, so literary attorneys don't experience as wide a range of boilerplates as an agent. Most of them make their money dealing with estates.
  • Experienced literary attorneys are expensive as hell.
  • If you have a complicated publishing contract and no agent, you're probably working with a small press and no advance/low sales expectations.
  • (Side-note: the no-agent-required contracts with good sales expectations, like Amazon's self-publishing agreements or the Big Five e-book only imprints, are generally non-negotiable)

If you find yourself in a situation where you have a complicated publishing contract in hand, no agent, and no larger organisation to support you, a literary attorney does help. But you're incredibly unlikely to be able to afford it, and if you can afford it, you're unlikely to recoup that money through sales.

I know getting an agent isn't easy, but it lacks the financial barriers of any other route. It's open to all writers, regardless of their situation, as long as they have a rudimentary dial-up connection or a mobile phone capable of sending an e-mail. You can go to start to finish in the Big 5 process without spending a penny.

That's part of the reason why it's so damn hard to stand out -- when a process is equal and open to most, it stands to reason that going to be busy.

The SoA deal is an exception to all of the above -- it evens the playing field and means UK writers can safely enter unagented deals -- but it's an exception most writers across the globe aren't eligible for.
 
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Also very very important: SoA offer a free contract vetting service for members, using experienced literary attorneys.

It's a really vital service, and well worth the membership cost. Even without an agent, UK writers can negotiate a good contract using SoA.

You are SoA-eligible the minute you're offered a publication deal of any kind.

That's a great looking resource - thanks for posting it. :)
 
No problem at all! SoA are unsung heroes in the UK community, I wish they were much better known than they are. They also set guideline rates to help authors unsure of what to charge for speaking gigs, and regularly fight against authors being only offered unpaid or travel-cost-only gigs, which they rightly consider unfair. A day of speaking is a full day's work (and usually another day's prep work...) and deserves compensated.

Properly good people at SoA, and well worth supporting.
 
Also, membership of the SoA gets you 10% off in Waterstones!

They did vet my contract, and were very prompt and helpful about it. (They didn't come up with much, mostly I think because my publisher based their standard contract on the SoA recommendations in the first place.)
 

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