There are reasons not to give up in writing, as well as in political events. I've mentioned
Walter Hunt before, whose first novel took nearly twenty years to sell before turning into a successful series. Yesterday, the Wildside Press, which publishes my
roleplaying game, made an offer on three books: One of them will be a new gaming-related title, but the others are the first two fantasy novels I wrote, finished in the mid-1990s. They landed me my first agent and had some near misses, but until a few days ago I had given up on them ever seeing publication. (Even better news for Kossacks: As part of the deal I will also be editing five other gaming-related titles, including the first two books by our historian extraordinaire,
Unitary Moonbat. There will be more news along those lines later - including our forthcoming joint diary on
Rove: The Roleplaying Game, which will most likely get me waterboarded even if
Leaving Laura doesn't - but tonight I promised that I'd finally get to...
Publishing Contracts - Part 1
A bit of background: I'm not a lawyer (and neither are most of the folks involved in publishing contracts), but I have negotiated quite a few publishing contracts from several different directions - as an editor, as an author, and as a packager. Please don't construe anything I say here as legal advice. The purpose of this is to educate you on what you can expect to see in the contracts you're offered by a publisher so that you can be an educated consumer and ask the right questions. I'll talk about some of my experiences about what is likely to be negotiable and nonnegotiable, and why some seemingly innocuous points may be deal-killers (and seeming deal-killers may be no big deal).
I'm not sure how many episodes the contract part of the series will take up yet, but it may take a few.
Boilerplates
Contracts are another place where an agent is a huge factor. It's not just that your agent will have negotiated far more contracts than you (though she has) or that your agent doesn't have the same emotional attachment to your work and so can negotiate about its worth without seeming to put a price on your soul (if she didn't like your work, she wouldn't be representing you). It's also that your agent has most likely negotiated prior contracts with the publisher in question, which means that many of the most objectionable clauses will already have been removed from the version of the publisher's standard contract offered to your agent.
Every publisher has a boilerplate contract. This is the basic language that is offered to writers, and the starting place for negotiations. Boilerplates contain a mix of clauses that are standard throughout the industry, things that are vital for a publisher, things that a publisher would like to get, and things that are pure wishful thinking. If an agent is involved, the wishful thinking clauses should be off the table from the beginning.
Likewise, your agent will have some comments on the contract, as will you. Some of those things the publisher will be happy to give you (as long as you remember to ask), others you'll negotiate somewhere and meet halfway, and others will be flatly rejected.
The Grant of Rights
All contracts must have a grant of rights (what rights you're giving to the publisher) and a consideration (what the publisher is giving back to you). Not all of those things have to be tangible - the money can be mostly hypothetical or paid long after publication, and the likelhood of Croatian-language rights being exercised is pretty slim, but there has to be an exchange of at least nominal value. (In other words, you can't just give your rights up for nothing. Unless you're a senator, I suppose.)
The opening paragraph of a publishing contract typically looks something like this:
AGREEMENT made this 28th day of September 2006 by and between George W. Bush, hereinafter referred to as "AUTHOR," whose address is c/o Karl Rove Literary Agency, 1600 Pennsylvania Ave. NW, Washington, DC 20500, and Swordsmith Productions, hereinafter referred to as "SWORDSMITH," whose address is PO Box 242, Pomfret, CT 06258, with regard to AUTHOR's work for a property developed and owned by AUTHOR in whole and in part under the tentative title LEAVING LAURA, hereinafter referred to as "THE BOOK."
I should note for the record that Swordsmith (my company) no longer publishes books at all, so don't send me yours. Even if it's really good. On the other hand, Karl Rove would make a really good
literary agent.
The language here will be different if the book is work for hire, or if the copyright is shared. For instance, although I wrote a PowerPuff Girls book for Scholastic Book Clubs a while back, I don't own the rights to what I did because it was work for hire, and Cartoon Network retained the rights to their characters. Copyrights can be shared as well. Ownership of copyright is very important for things like film sales, but the person who creates the work may or may not own the copyright.
Remember, under current copyright law, anything you write is copyrighted in your name the minute you put it into permanent form (such as by posting it to a blog). You don't have to file any paperwork or put up a copyright notice in order for the copyright to be valid. A publishing contract can modify ownership to the copyright, or can clarify who is considered to be the owner and creator of a work. (Other things can modify it as well, such as the notice on DKos that any material not otherwise marked on the site may be freely reproduced elsewhere. That doesn't change your status as the legal owner of the work, but you can't try to retroactively charge people for reprinting it either.)
After the preamble comes the actual grant of rights:
In consideration of the mutual promises and conditions contained herein, it is agreed as follows:
1. AUTHOR grants to SWORDSMITH the sole and exclusive right to produce, publish, assign, use, license, sub-license, print, reprint, publicize, distribute, sell and otherwise control AUTHOR's work for any version of THE BOOKS in all languages, in all media, and in all countries, throughout the world.
2. SWORDSMITH shall have the right to license, assign, sell, lease, or otherwise dispose of the following rights to AUTHOR's work for THE BOOKS in whole or in part:
a) All publication rights, including book or other club editions; direct marketing editions; foreign language editions; trade paperback editions; mass market editions; hardcover editions; foreign serial and other periodical rights; abridgements; adaptations and condensations; limited deluxe editions; special editions; mail order; and all other book editions, including sub-licensing of editions, serial rights, and syndication.
b) Visual use such as microprint and microfilm; computer software, videodisc, videotape, CD-ROM, CD-I, DVD, interactive videodisc, telephone and/or on-line use, and any other electronic, electromagnetic, or optical reproduction in use now or hereinafter developed, in all languages, throughout the world.
c) All audio rights, such as audiocassette, compact disc, and any other audio media in use now or hereinafter developed; comics and graphic novels; games; all merchandising rights, such as toys, calendars, and coloring books rights; all dramatic rights, such as radio, television, and film rights; and all other rights, in all media, in all languages, throughout the world.
This is what is jokingly referred to as "galactic rights" - i.e., "all rights ever developed in any language ever spoken on any planet in the galaxy." Publishers tend to be pretty inclusive in these rights, especially after Disney failed to be specific enough in licensing voice rights for some of their early films, leading to a major lawsuit by voice actors when the first videotapes were released without their consent. Many publishers had a similar mess with the onset of electronic publishing, which wasn't included in many boilerplates. (Much of the publishing industry is simultaneously very acquisitive and a bit stodgily conservative, and that dichotomy can be reflected in publishing contracts.)
Some of these rights are vital to the publisher (like North American book rights and audio rights). Some of them you may not care about (like calendar rights if you're writing a technical manual). Others will depend heavily on who the publisher is and who your agent is. Does the publisher have a strong overseas publishing program and specific ideas for marketing the book abroad? If so, it may pay to grant them the foreign rights (which they will pay you for separately from the North American rights). On the other hand, if your agent is a whiz at foreign sales, or the publisher has no overseas track record, you probably don't want the publisher sitting on rights that your agent can be selling.
Some rights are more subtle. For instance, because of the way films are marketed and commercialized, it's nearly impossible to sell film rights to a studio without also selling game rights. So if you're planning to retain dramatic rights (usually a good idea), make sure you hang onto book rights as well.
I always try to retain dramatic and game rights, but otherwise my general rule of thumb is that I'm willing to give up control of rights that I think the publisher is likely to actually use, but not rights that they're just going to sit on.
The Credit
Something else you don't want to take for granted: How will your name appear on the book:
All editions of THE BOOK shall contain the following authorship credit: "by G. W. Bush." Said credit shall appear on the front cover, spine, and title page of THE BOOK.
Remember that the name you use here may not be the same name you're using above. Usually, the publisher wants to use your name - and with established authors, the name is the single biggest factor in selling a book. (The cover art is second.) On the other hand, if it's part of a series or a tie-in, your name doesn't really make a difference to the book's sales, and unless it's contractually required, the publisher may not bother to put it on the cover. It never hurts to specify that all editions of the work need to carry the credit, so your name doesn't appear on the hardcover then disappear from the paperback, for instance.
If you're ghost writing the book, you may get no credit on the title page (not even an "as told to" or "written with"), but other credits are possible, such as a special thanks or a coded listing in the acknowledgments. One romance writer who ghost wrote a big-name celebrity's romances wasn't able to even get that, but she finally managed to negotiate for the dedication. So each book is dedicated to her, "without whom this book would not have been possible."
The Work
These are the actual specifics of what you'll be providing the publisher in return for your money. A lot of what's in here has been affected by bitter experiences at the publisher, so while they may be willing to tweak the due dates a bit, they'll be pretty strict on the actual requirements in the contract. (On the other hand, any publisher that expects a writer to meet all deadlines is insane, and publishing contracts cannot, in fact, compel you to do so. If you get writer's block and never finish the book I can't make you give back the money - a big part of why new writers get little or no money until the manuscript is actually turned in. I can prevent you from writing books for anyone else until you finish the one you owe me, but I can't force you to actually write it. Although after today, I suppose I could torture you for it... because tortured prose is just as high quality as tortured confessions.)
4. AUTHOR's work for THE BOOK shall include the following:
a) A manuscript of approximately 100,000 words in length. Author shall provide said manuscript to SWORDSMITH both in printed form and on computer diskette, in a format readable by SWORDSMITH.
d) Reasonable revision of said manuscript as directed by SWORDSMITH.
e) A brief biography and photograph, for use in THE BOOK and in all promotion for THE BOOK.
f) Reasonable efforts to assist in publicity, promotion, and marketing for THE BOOK, as directed by SWORDSMITH
5. AUTHOR's draft for THE BOOK, including all revisions and delivery of biography, shall be delivered within one hundred eighty (180) days of request by SWORDSMITH. AUTHOR's revisions to THE BOOK shall be delivered within thirty (30) days of request by SWORDSMITH.
If it's a multiple-book contract, there will also be provisions for outlines or other material for the later books in the series. (Publishers usually try to sign new writers to multiple book contracts. Generally the publisher is free to reject the second book if the first one doesn't sell well enough, but if the first one is a strong seller, they pick up the rights to book two below market rates. As a new writer, it's very hard to turn down that sort of contract - and you may have very little leverage.)
You may assume that you will happily make any revisions the publisher wants to the book, and gladly do your part to help sell it, but publishers have experienced far too many authors who disappear at key moments when revisions are due, refuse to talk to reporters, or lose interest in the book partway through the process. They won't assume that you'll always be chipper and cooperative, and will want to insist contractually that you actually turn in the book they're expecting, at approximately the time they're expecting it. (A significantly late book will cut the books sales dramatically, as I discussed a bit in the publishing lists episode.
Scenes from Next Week's Episode...
Next time around, I'll talk about how publishers pay you, and how royalty rates are structured. The boilerplate I'm adapting these from is a packaging boilerplate shorter than the standard publishing contract; it only has about 25 clauses, and no attached schedules (but I'll be pulling them from another boilerplate at the appropriate time... unless people get bored of contract talk before then).
The Rest of the "How Publishing Works" Series
I do still monitor and respond in the previous episodes, so feel free to post questions or comments in them if you'd like. And feel free to post requests for future topics in the comments as well.
Part 1 - Why bad things happen to good books.
Part 2 - Avoiding publishing scams.
Part 3 - Literary conventions (with an emphasis on SF Conventions).
Part 4 - Book packagers.
Part 5 - Submitting a manuscript.
Part 6 - Publishing lists.
Part 7 - Literary agents.
Part 8 - Copyediting.
Part 9 - Marketing and publicity.
Part 10 - Outlining.
Part 11 - Editing.
Part 12 - Ideas.
Part 13 - Contracts.
Part 14 - How Writers Get Paid.
Permalink | 44 comments