Blogger: Janet Kobobel Grant
Location: Books & Such Main Office, Santa Rosa, Calif.
When I became an agent thirteen years ago, contracts were three to six pages long and were pretty straightforward. Since then, publishing has become more complex and so have contracts. A new, unagented author can enter into the publishing process with rosy cheeks and lots of innocence about what the relationship with the publisher will be like. But once the contract arrives, even before the package is opened, the heft of the mailer should be enough to warn the author that what awaits inside isn’t going to be wrapped in a pink bow.
Nowadays, contracts can be as long as twenty pages. By the end of the first paragraph, in which the author is asked to assign to the publisher all rights, now known or yet to be invented, and distribution to everywhere in the universe, the newbie writer is up to his or her nostrils in legal commitments.
The agent views a contract with a very different eye. Generally, the agent and the publisher will have agreed on the “deal points” before a contract is sent to the agent. So the major issues: the amount of the advance and the royalties as well as the rights being offered to the publisher have been settled before the agent even receives a draft of the contract to work on. Negotiating the contract centers on the finer details such as out-of-print definitions, whether the author will be legally bound from writing for any other publisher, and what constitutes “competitive” titles (meaning the author can’t write certain types of books for other publishers because those books would constitute competition for the title currently being contracted).
Agents are in a unique place in the publishing industry because each of us sees contracts from most every publisher. So we have a wide world of comparison. When I work on a contract, unusual phrases leap out at me since I know how certain items generally are expressed. I consider unusual phrasing aberrant and take a close look to figure out why this publisher is stating an element of the contract in an atypical way. Because I know it’s atypical, not only does that alert me to carefully study that wording over, but it also gives me leverage to have the language changed, if it’s detrimental to my client. “Do you realize I’ve never seen a contract worded this way before,” jumpstarts the negotiations on such phrases. The publisher and the agent often will go back and forth several times before the precise language of every line in the contract is agreed on.
Another advantage of seeing such an array of contracts and working with the same publishers on several contracts throughout a given year, is that an agency collects clauses that provide safeguards for our clients. Our agency has a Books & Such “template” with many publishing houses from which we start our negotiations each time. I’ve been refining these templates for years, and when one of our agents negotiates a contract with that publisher, we have the opportunity to further refine the template. As a result, all our clients benefit from each subsequent negotiation.
Plus, because publishing is dynamic, clauses that were neutral in past years can develop prickly implications. For example, electronic rights were a vague concept five years ago, but today they are front and center in any contract negotiation because this is the aspect of publishing that is developing the most rapidly. Both publishers and agents are figuring out what’s reasonable and fair.
This all adds up to contract negotiating being delicately nuanced. Our agency’s philosophy of contract negotiation is to create a win-win contract. We want the publishing house to get what it needs to make the project profitable and successful (which means future contracts for that client), but we must see that our client gets what he or she needs and has appropriate safeguards if and when the publisher is no longer invested in the project.
So, with all this in mind, I’m about to set aside a portion of my day to do the concentrated, heavy lifting of working on contracts. Today I have a variety of agreements on my desk: a film option for a novel; two audiobook contracts; several eBook addendums; a couple of foreign rights contracts; and a few “standard” book contracts. All that ought to be enough to give me my fix of legalese for the day!