Blogger: Janet Kobobel Grant
Recently I’ve found myself explaining to a number of clients why some sections of contracts have especially stringent terms. My clients fall silent when I say, “Every paragraph has an author’s initials beside it.”(Which is a quote from an editor, by the way.) Oh, those initials are written with invisible ink, but the truth is authors are responsible for much of each publisher’s contract.
When I became an agent in 1996, some publishers’ contracts were three-page visions of elegant simplicity. They covered everything that needed to be agreed to, weren’t excessive in demands or so confining an author had little hope of making a living after signing the document.Today, some contracts are in excess of 25 pages, and it’s been a long time since I’ve seen anything that resembled elegant simplicity. The words that come to mind are “bloated,” “beyond reason,” and “too complex to comprehend.”
What happened in the intervening years?
Lots of changes, of course. Adequately spelling out the rights in a contract has become a feat worthy of a Gold Medal gymnast. Digital and multimedia rights alone have added several paragraphs to every contract. What it means for a book to go out of print has become a complicated matter as well.
But another big factor in fattening up contracts is the authors themselves. Through creative interpretations of the less expansive contracts of old, authors have pushed the line of what they could get away with to limits that astound and shock the unimaginative. To see what they’ve done is like walking through your house with a burglar as he tells you all your vulnerabilities that never would have occurred to you. A publisher, seeing an author violate the publishing house’s good will, phones an attorney and asks for new contractual language that protects the publishing house.
Want to know what a few of the clauses are I’m referring to?
1. If you miss your manuscript deadline, the publisher can cancel the contract–and you must pay back any of the advance given to you before the rights will be returned. Authors were missing deadlines, sometimes by years, rendering the value of the manuscript less than it was when the publisher offered the advance. These deadlines weren’t missed because of family emergencies or unexpected twists in life but because the author was too busy making money other ways, through speaking venues, public appearances or contracting with other publishers for higher advances and giving the new contract higher priority. Then the authors were asking for the rights back to the incomplete manuscript and to keep the advance. If you were the publisher, wouldn’t you add protections to your contract?
The result: Missing a book deadline has become much more treacherous. Now, if you miss your deadline, should the market have shifted since the contract was signed or should your sales numbers have plummeted, the publisher can terminate the contract and get the advance returned. Obviously, the publisher has the choice as to whether to pull the parachute cord, and most publishers are reasonable. But not all.
2. If the author doesn’t pay invoices for copies of the contracted book, the money can be deducted from any agreement between the publisher and author. Apparently many authors have grieved their publishers by aggressively “purchasing” copies of the published book but failing to pay for the copies. As a result, publishers have given themselves the right to dip their hand into any agreement they have with you to deduct from your earnings the money you owe but won’t pay. Just picture the scenarios that have occurred to result in every publishing contract having this clause. Who can blame the publisher?
3. Noncompetition clauses that result in the author not being able to produce any book-length work before the last contracted book is published. This has been a deadly clause for authors. Picture this: You sign a three-book contract, agreeing to write one book per year. You’re thrilled because you are receiving a nice advance to begin with and then regular payments during the three years you’re writing. But, as those years play out, you discover that with such a long time period, the payments aren’t adding up to enough to remain financially stable. When you check your contract, you find that the noncompete paragraph locks you into not write anything book-length, regardless of topic or genre, until the third book is published.
There are many versions of the noncompete, and I’m portraying it in its most extreme version (which occurs in several publishers’ contracts). It is, in my opinion, publishers locking down authors so the possibility of making a living wage is highly unlikely. Some publishers are immovable when it comes to this clause, but others are willing to make it a more reasonable part of the contract.
How did this paragraph come into existence? Picture the author who decided to contract simultaneously with several publishers and not to inform any of them of the other projects. The publishers, in good faith, invest editorial, marketing and sales dollars (tens of thousands of dollars) into making their book a success. Only to discover the author has created competition for him or herself by flooding the market with too many books at once. Everyone loses–every publisher and the author. So the publishers decided to build a fortress around each author, preventing that writer from creating a worst case scenario. Protection makes complete sense. But now authors who are savvy enough not to cannibalize their own sales must adhere to stringent noncompetes that make it hard to earn a living.
Other examples in contracts abound, but this gives you a taste of the bitter fruit all authors must eat from trees other authors planted. It’s not a pretty picture is it?
What other parts of contracts do you think have authors’ initials beside them?