Any Contract Is Not The Best Contract

For authors, getting that first contract is a dream that always seems elusive. Time and time again, rejections flow into author's inboxes. They write and rewrite their stories. They start a new genre. They write a new book. They read everything they can, and yet, the rejections still show up.

Until one day... 

They leap at a new opportunity they heard from a friend, or heard at a conference. Wow! This could be it! Instead of the normal months of waiting, the author hears back and dang it, they got a contract. They can now claim they are published. Break out that champagne and celebrate.

And yet... (you knew this was coming).

Things just don't work out like they thought. Sales are not the way they had hoped. Distribution is just not there. Maybe the final product just doesn't look like they had hoped. So what happened?

It was just not the best contract. It happened to be the first contract.

I get this all of the time from submissions. Authors who tried one approach, and yes, it is often self-publishing, only to find that it was not all that it was hyped up to be. And now, unfortunately, the author may be paying the price. In the case of self-publishing, it may be a ton of money from their own bank account. It may be bad publicity or reviews. It may just be that bad taste left in your mouth. 

Here comes the line I have said over and over again. Being a published author takes time, education and talent. It is not just about writing a story on your computer and getting it printed. Yes, you may be rejected. All authors get rejected. But jumping at the first thing that comes your way may not be the best approach either. 

In simple terms, look before you leap.

Offer Up and Publishing

So, this weekend, I was busy cleaning the garage and put a book case on Offer Up. You know the APP. Take a picture of what you want to sell, throw it online and see who wants it. I had tried the APP several years ago and was a bit frustrated. Not because I could not sell the items, it came down to the number of people who contacted me and simply made ridiculous offers. There was this belief that these items, already clearly marked down from the original price was not enough for the buyers. They all wanted more. And sure enough, the same thing happened again.

So the book case I have online is an IKEA bookcase. Great shape. Original price $149. I am offering $35. Great deal! Then the offers:

•  I'll pick it up if you want to give it to me for free (BTW it is marked as the buyer had to pick it up!)
• I'll give you $5.00
• I'll take it for that price but you have to deliver it to me (this person is over 90 minutes away)

Now, why am I linking this to the Publishing world. It seems like writers do the exact same thing.

Writers seem to want the world when it comes to their contracts, regardless of the quality of the book or their careers. Now, before I go to far, please understand that I am all for authors getting as much as they can for their books. However, writer have to know that there are limits.

This is a business world and the writer, even in the case of self-publishing is not the only player. Book buyers, book sellers, publishers, graphic artists, copy editors, production editors, marketing teams all are part of the equation. 

Writers also need to understand that their publishing record and their individual novel are also factors in deciding what you get and what you don't get. 

I am reminded of a friend of ours from the debate world. He was in the debate offices and the professors and coaches were there as well. They all started talking about what they were going to do right after graduation. He made the statement that he had it all planned out. Upon graduation, he would land a 6-figure salary.

Everyone laughed. 

He was not in a field that offered that. It was 1988. He had no internships and only a B+ GPA. He expected the world!

Look, I am all for authors asking for "some" things when they enter into a business relationship with a publisher or agent, but remember, this is not Offer Up or a garage sale. This is a business.

Right of Refusal Clause

So, let's talk a little bit about contacts today, and more specifically, the clause of Right of Refusal.

This is a pretty standard clause. It is there to help out both the author and the publisher, although most writers tend to feel pretty tied down to this one. We'll talk through that piece in just a second.

The clause essentially says that if you contract with this first book, the publisher has the right of refusal on your next book. This is protects the publisher from someone selling their first book with company A, getting all of the marketing tools and publishing information, and then taking it and running off to self-publish with that info, or using it at another publisher. As for the author, it is automatically getting you a door in on the next book. Essentially, if you do everything right on the first book, play nice and so forth, the publisher will likely look at that second book and sign you (or at least that is the hope).

Now, here is the twist, and part of the reason you either need to really understand publishing contacts, or have someone who knows the contracts working with you (like an agent).

Publishers are willing to negotiate on this clause and it all comes down to the wording of it. For the most part, contracts are set up as standard boiler plate contracts. This means the standard template is there for everyone with the exception of a few tweaks. So, with a little careful wording, you should be able to keep that door open and protect other interests.

Let's say the clause says something such as:

AUTHOR agrees to give PUBLISHER the first right of refusal for the AUTHOR'S next fiction work...

Right now, this means they want to see your next piece of fiction writing - period. If you contracted a Regency romance and have a contemporary romance, they get to see it.

However, if you tweak this you can add something like, "the AUTHOR'S next REGENCY ROMANCE fiction work."  Doing so now leaves you open to submitting even a Victorian romance to someone else.

Look, you can't change everything, but you can tweak things, especially if you have other irons in the fire so to speak.

It's More Than Just Your Story

When editors and agents look at submissions, we often all say that it all comes down to the writing. It is the story that matters! And, while this is true, this is not really the complete picture. When I look at a submission, and I am sure other editors and agents do the same thing, we look beyond the story and take some time to get to know the author as a person.

A great many writers seem to think (either consciously or unconsciously) that the process a book goes through is pretty simple. They write, send it out for edits, revise and then it is published. While this is certainly an element of the process, those people involved other than the author are not just tools in the process. These are professionals that authors must interact with.

We often talk about the author-agent or author-editor relationship as being a marriage. This is a long-term commitment. We are not looking for you to simply write one book and move on. We are attempting to work with you to build your career. This means that we need to really be involved in you and your writing.

When I talk to potential new clients, I am often looking at several things that go beyond that story.

DOES THIS PERSON HAVE A REALISTIC PICTURE OF HIS OR HER FUTURE This is a big one. We often hear at conferences, authors talking about how much money they plan on making, or how they already know their story is going to be on the New York Times Best Seller list. Authors also go on and on about how they already are planning on their books going straight to movies. When I hear this, I already see this person really does not see a sense of their future. They simply do not get the business of publishing.

It is good to have lofty goals and we certainly want you to set your goals high, but, with that said, these goals need to be realistic. Thinking that after your first 3 books in a series romance, you are immediately diving into single titles and 10-20 K for each book is not realistic.

IS THIS PERSON OPEN TO LEARNING AND GROWING We all think we have a full grasp of our writing. We know how to write a great book! But in this business, we also need to be able to adapt and grow with the times. We have to be able to listen to critique and feedback, and then be able to make those changes.

I have worked with authors in the past who simply do not want to make changes to their stories. They are in the mindset that this story is fine the way it is, despite the fact that we have gotten feedback from editors that say otherwise. Those relationships stopped fairly fast.

HOW MUCH "EXTRA" WORK WILL I HAVE TO PUT IN TO GET THIS PERSON READY I think I talked about this just recently. We get that new authors will have a bit of a learning curve. We are open to that. We know that we will have to take initial time to make sure the author knows how to get from Point A to Point B. But, this is where we have to really stop and think. Is this author going to require a year of just education and training before we get to a project that is going to sell? Is this author going to require a ton of emails and phone conversations just to explain concepts he or she should already know? This is where we have to ask, is it going to be worth it?

IS THIS PERSON PROFESSIONAL Authors need to understand that while the publishers and agencies represent them, they are representing the agency and the publisher. We want to make sure that when an author is out there in public, they are demonstrating a strong sense of professionalism. It makes it really hard when I have to go to talk to an editor and hear that they are frustrated with how that author is acting or behaving. Yes, I have had these talks and I can honestly say, these conversations are not fun. As an agent, I have to attempt to run damage control between the editor and the author. Not fun.

So, in the end, yes the story is important. But we are signing a complete package and not just a book!

Contract Problems? You Signed It!

Contracts are all about making sure ALL parties are protected. In publishing, this means that the author, agent and publisher are all part of this agreement. Unfortunately, there are many authors out there who have this believe that publishing contracts are only out to "screw the author." It is also this reason why so many people seem to think that going into self-publishing skips this process.

This is far from true.

What I have to first say is that you, as the author, decided to sign that contact. No one put a gun to your head. No one forced you to take on that contract. This was 100% your decision. This goes for all of those contracts. When you made a decision to work with an agent, a publisher, a printing company, you signed a contract.

And yet, time and time again, I hear authors complain that a publisher "screwed them over." Authors complain about not having certain rights to their books. They complain they cannot just get those rights back at a moment's notice. Those rights were clearly worded in those contacts, and when the authors signed it, the author's said they agreed.

So, what do you do as an author? First, if you don't understand the language, it is up to you to figure out a solution. Agents know the language so they can help. There are lawyers out there who you can pay to look over the contract, but make sure the lawyer is familiar with publishing laws.

Secondly, you can negotiate to see if they are willing to make changes. Here is where it get sticky. Remember the contract is making this fair to everyone. If you go out asking for unreasonable terms, please understand that you will not have an agreement. You don't get to dictate everything. This is a business and both you and the other party are in this for financial reasons.

Finally, if you are still not happy, then you have the right to say no. You are not being pressured into this. If you are saying "this is the only way I can get published" then you are wrong. There are other ways, but this path might not be what you want. If you are still determined to do this, even though you don't agree with the contract, you simply cannot complain later.

It's tough, but it is the real world.

Negotiating Does Not Mean You Get It All

I think there is a belief that in contract negotiations, it becomes and all or nothing discussion. This is far from the truth. The reality of the situation is that the author and the publisher need to reach an understanding where both sides can get a little of what they want and not lose too much of other points. It is all about a giving a little and taking a little.

Although it would be fantastic for an author to walk into a publisher and demand the world, the reality is that this is not likely going to happen. The reason is simple. There are a ton of other authors right behind that author who are willing to take that place in line. This does not mean, however, that the publishers will simply dump an author for someone cheaper. If the author has done a lot for the company, the publishers will want to keep that person around.

When we negotiate, we look at three lists. The dream list, the things we must have, and the things we just don't want on that contract. There has to be a happy balance between all of these things It is also important to note that the publisher is also working with that same list. It is at that point that the contract waltz begins.

There are times when an author might have to give up something, maybe a bit higher advance, to get more books in a contract deal, or the promise for a better placement in the line up. For the publisher, they may give up certain rights to the book, such as digital rights, because they know both the print sales will be fine, or that the author has another outlet for those digital sales that will assist in the long run.

For new authors, they also need to factor in that, at this early stage, they have no following or history. This is a gamble the publishers are taking on that author so asking for the moon may not occur. Sure, you may feel you deserve it after all of the blood, sweat, and tears you poured into that story, but the reality is that it is simply not going to happen.

Although I fully understand it is reality television, watching Shark Tank is a great way to see how this all works. The "Sharks" are often looking at a lot more than simply the passion and the product. They look at potential sales. They look at if this person who wants the investment money has done his or her research. You can also see how some of those people who they "pass" on, simply don't get it. They ask too much. They aren't willing to give an inch. And, in the end, they walk out without a deal. What I always find amazing is how they always respond as they walk away. "Those Sharks don't know what they are missing. They'll see."

Yep, they will see. That person walked away with nothing and the next show, there will be another person who was willing to negotiate.

The Contract Negotiation Waltz

I thought about that imagery of contract negotiation being a dance this morning. I have been working through some new contracts for my authors and working out "the bugs" can always be a tough thing. It really does take a team effort between the author, the agent and the publisher to get things to work out.

I have heard authors talk about contracts as being a way to "screw" the author. This is not the case from the reputable publishers out there. The contract is simply an agreement between all of the parties, and the word agreement says that everyone is on board. The contract is there to find a way to get the best for everyone in that given situation. It is not just about the money (although, yes, this is a factor). Let's talk about a few.

THE ADVANCE - So let's start with the money. We have to remember the advance is the money up front the author will get. It is a prediction on what that author will be able to sell. This is where it is tough for authors to understand. Being a writer is not a money making profession (with the exception of a few people out there). This is a second job. Although you might want to personally make a ton of money for that 75,000 word single title, we have to consider the sales. Those sales are dependent on a lot of factors:

• Are the book buyers wanting to put your book on the book shelf?
• How much promotion are you and the publisher doing?
• How easy is the book to find online?
• Etc.

DELIVERY DATES - This is another one the authors often don't see the big picture on. Publishers know the best way to get sales. They know months that do best for certain books. They know how fast books should come out depending on the author (i.e. Back to Back releases and so forth). They will do whatever they can to adjust the dates to get things to work for you, but remember, they also know they want to get those books out there to the public. But here is the other things we often forget. You are not the only author.

Your books need to be put on a calendar for release. Your books need to get to Marketing, to the Art Department, to the Copy Editor, and certainly through your own editor several times to get things done.

OPTIONS AND OTHER STUFF - There are things in those other clauses that we can negotiate and can often get. The sticky one is the options clause. In all honesty, this one is designed to not hurt the publisher and to get the best for you.

First of all, publishers want to keep you. They signed you in the first place which means they must have liked something. They don't want to put in all of that hard work on you and your writing and then find you have gone to another publisher with all of that work. If you want to write another genre, that is fine. We just make sure that the option is in your favor to do that.

But secondly, this option gives the author an immediate inside to further contracts. For new authors, this is really important. You don't want to just be a "one hit wonder." Think of it this way. Let's say you are hired by an employer for a 1 year non-continuing contract. What does that mean? At the end of the year, you are unemployed. End of story. There is not promise or guarantee of you staying, regardless of how well you work. Having an Options clause gives you something more than the thought of unemployment when that contract is over.

Now, when I said it is a waltz, it really is. The more everyone can "play nice" and being working for the same goal, the dance is gorgeous. But think of those businesses and corporations around you that really struggle with contract negotiations. If is often because one or both sides is not wanting to make it a waltz, but a solo performance. Feelings get hurt. Contracts don't get processed, and often, there are big losers.

We don't want that to happen with you!

Contracts, Agents, and Helping Out Authors

Last week, I received a request from an author to discuss what agents are doing to help out the writers with language in publisher contracts that might hurt the author.

I have to begin with a single statement. we cannot immediately blame the publishers (or I should say the reputable publishers) for this language. We have to remember that the contract, and all of those clauses and phrases that hurt authors can only happen if the author signs the contract. No one is forcing an author to sign the contract. I would also add that, as an agent, if an author says he or she doesn't want to sign the contract, then it stops right there.

But what about the agents. What are we doing?

First of all, I cannot speak for all of the other agents out there, but I am assuming we are all doing the same thing, we will only work with the publishers that are reputable and we can trust. Because our role is to represent the best interests of our client, we will not send projects to publishers, and even specific agents that have proven to be less than reliable. When we make those decisions we are looking at a lot of different factors including the type of contract the publisher uses, how flexible the publisher is, what the rates are, what the terms are, and certainly, whether or not the editors our authors would be working with know what they are doing.

Secondly, when a contract does come in, we do take the time to look it over and make changes that will work best for the authors. Much of this is even done before the contract is written up and the editor calls us to "make an offer" for the book. They will send us a "term sheet" which gives us the over-all view of what they will be offering. But we don't stop there.

When the contract does show up, especially for new contracts, we really do a lot of tweaking. We make sure the options clause is going to work for an author wishing to branch out or wishing to write for multiple publishers. We watch for termination clauses, advance copies, editorial notes and what not. This is ALWAYS on a case by case basis for each author.

Once that author is established with a publisher, this work often requires a lot less work because the contracts departments will consider the "last contract" the author approved as now being their individual "boiler plate contract." But we still look it over. There are times when things change. There are times when the author now needs to take his or her career in a different direction.

Now, there are times when things change at the publisher and we see "revisions to the contract" show up. These are the same thing as when your bank, your cell phone carrier or your insurance company sends out changes to their policies. When those occur, as agents we also review those and we have to sign off on those just like everything else. If something isn't going to work with our clients, we will go and fight for it.

For those of you working without agents, you can certainly do all of these same things we are doing if A) the publisher does negotiate with the author directly; and B) you know exactly what you are doing on the legal side of things. I do know I have heard some people take their contracts to lawyers, but unless the person is a lawyer that has done work with publishing contracts, you might find you are not got getting what you need. I am not saying you won't, but it is certainly a possibility.

The point that I want to make here is pretty simple. As agents, we are working strongly as advocates for our authors. We want the best for them and that does include fixing those contracts, finding them the strongest publishers and keeping them on the right track for great success.

On Contract Negotiation

One of the fun tasks of being an agent is getting to deal with contract negotiations. O.K. maybe it isn't fun, but it is a necessary evil. As a writer, I do think it is very important to understand what really goes on during the negotiations and why agents will push for some things and not push for others.

First of all, remember that every agent does things differently. Along the same lines, each time there is a chance to look over a contract, there are different variables at play. These might include the type of book, the author, the publisher and the things the author represents. With this in mind, while looking over contracts from other authors is interesting and will give you some insight into what is happening, you simply can't argue, "but they have it in their contract!" Things will always be different.

As an agent, we are working hard to make sure that not only do you get the best deal, but, more importantly, you are set up for some great progress in the future with your career. We never want to look at contracts in isolation and out of context. In other words, what happens with this deal will affect things for future deals.

Negotiations are not simply about looking at making a lot of money on that advance. We will take some time to look at how much you will make on royalties later on and in all of the various versions of your book. We also take a look at how many books will need to be sold before those royalties take effect. In some cases, agents may even recommend taking a lower advance or a different advance set-up to get you better royalty rates later on.

One big element we take a look at is the infamous "Options Clause." There are a lot of writers that panic when they see this; however, if we really understand the purpose, you can see why this is beneficial to both the publisher and the author. For the publisher, they want to make sure they get to keep you as an author if your story is pretty darn amazing and does well. They simply don't want you to run off to someone else with that 2nd and 3rd book. For you, as an author, you want to make sure you still have a foot in the door for those later books. This doesn't mean they will sign the book, but you will not have to go through the whole submission process a second time.

When it comes to the wording of the option clause, an agent might narrow the focus a bit more. Instead of the publisher having the right to the next book your write, the publisher might only look at something similar to the work you are contracting at that moment. This approach will allow a writer to actually write for different publishers with different genres.

Agents may also argue for maintaining certain rights for the book. Again, this all depends on the book and the agent. Some agents want the option to do ALL of the marketing of foreign sales. Some will allow the publisher to do it and just adjust the royalty breakdown a bit more. The same goes for movie rights, e-book rights and so forth. There are also times when an agent knows getting those rights might not be worth the fight. The key is to understand, everything is different.

We need to remember though, in these negotiations, you might not get everything you want. While in a perfect world, you might want it all, sometimes the best approach is a little give and take.

Scott

You Don't Have To Say Yes - A Thought On Contracts

So, you have been working your butt off finding an editor or an agent. You found someone that really does work for you and isn't someone just out to take your story and your money. In other words, you found someone reputable. After a bit of talking, you are offered a contract. Now what?

Of course we always talk about contract negotiations. Find what works best for both you and the editor/agent and work out the details. But this is not always going to work out for everyone. Sometimes, even if the deal looks good and you have worked everything out to the best of your abilities, something might not feel right. The question is, do you sign.

One of the things about the publishing business is that a lot has to do with gut instincts. Although I am not someone into all that New Age stuff, I do believe that many times, if we trust our feelings about something, we should follow that tought. The same goes for contracts.

If things just don't feel right, there is nothing wrong with simply saying "no." In a professional and polite way, you can explain to the editor or agent why you think you will pass on the project. In all likelihood, the contract might be heading you in a direction different than what you want to do with your career.

The thing about this is that you may have closed off a door later on if something does fit with that editor or agent. Now they will see your name and be reminded that the last time, you changed your mind at the last minute. The question they will ask is if you plan on doing that to them one more time around. Do they want to devote all that time and effort into reading your project, discussing things with them and then writing up the contract just to say no again? Probably not.

But, this does not mean you take it. This all goes back to do your homework before you start anything. Make sure you know as much as you can before you start. Still, remember that you have the power to say yes or no. It is 100% your decision.

Scott

How Much Negotiation Is There With Contracts

I saw yesterday a couple of agents Tweeting that they were "negotiating contracts." Wooo, that sounds so cool. Writers just get tingles hearing those words because of what they are now thinking. The image is clear to the writer. The agent is probably on the phone, telling the editor they want the world or they will never let the editor see the manuscript ever again. They're probably arguing for a 6 figure deal for that book. They're pushing to maintain all of the rights.

Um, not.

When it comes to contracts, there is a lot of material in there that simply isn't going to get changes. I am sorry to break that one to you. Yes, we do negotiate some things. Yes, we do push to get the writers the best situation, but really, for the most part, the use of the word "negotiate" is a bit extreme. It is implying something much bigger.

For the most part, this "negotiation" is involving simply a re-working of a lot of the details. Depending on the author, the book, the agent and what not, there might be some maintaining of rights. Maybe this agent has some great connections and wants to keep the foreign rights. Maybe this person has just talked to some people about TV and movie rights and they want to keep those. It doesn't happen with every book, but that is a maybe.

Sometimes we spend the time talking about the advances and the royalties. There might be some trade-offs to take a smaller advance and higher royalties. Maybe it is the payouts.

Most of the time, it is simply a wording to make something a bit more comfortable for the agent and the writer. Not really changing the context of the contract, but the wording.

The thing to remember is that really, in the end, all parties are really wanting to work things out so that everyone is happy. But we do have to remember that, while writing is fun and writing does involved the creative side of things, this is still a business.

Scott

Contracts

Contracts are really the ugly side of the publishing world. These things, however, are a necessary evil and something that should be taken seriously.

Now, before going any further, I do want to stress that if you are in negotiation with a real publisher or with a real agent, then you aren't going to see too much getting in the way and you can breathe easy. Still, reading and understanding is important.

Regardless of who you get a contract from, take the time to read it through slowly. I know there is a level of urgency in wanting to get that publishing career moving, but making a stupid mistake early on may lock you into something that you simply don't want to be a part of. Take the time to understand what is going on. If you don't understand it, go to someone who does and have them explain it. If you want to pay a lawyer, feel free to do so, but make sure that it is someone that deals with literary contracts. I have seen a lot of people taking their contracts to people who specialize in taxes or divorces and they try to manipulate that thinking into the contract. It simply doesn't work.

If you are still struggling, take the time to ask questions. If the person wishing to sign you is truly interested in you, your writing and your career, he or she will work with you.

As for making changes, as an author, you may have little chance to make significant changes. Along the same lines, as a new author, you'll likely have a little or no chance of arguing for more money since you have nothing to prove. You may be able to change around deadline dates, or wording in the option clause. Try though. The worse they say is no. If the contract is with an agent, certainly talk it through. There will be potentially more flexibility there.

Finally, and this goes without saying, make sure they are reputable. For agents they should either be members of AAR or at least following the guidelines. Check with those major writing organizations you are a part of. These groups also keep track of agents and publishers that have a track record of working with the authors and not out simply for the big bucks.

The key here is simply think and understand.

Best of luck!

Scott

Ciao from Italia

I had a brief moment to write between sessions.

We were discussing contracts this morning and a couple of issues came up regarding what agents are looking for in contracts we negotiate. Nothing out of the ordinary here, but one issue that came up that we were all in agreement with was the issue of writers lack of an understanding of the business.

Now, do not get me wrong here. I understand that you have an agent to deal with the logistics and legalize, but you need to know the basics of what we can and can not ask for. It makes it really difficult to work with a writer that is really unaware of what the contract negotiations entail. This is something I have talked about for some time now - that being a writer needing to understand something of the business before jumping into it with both feet.

Remember that for most new writers, there is only so much we can negotiate. You simply do not have the numbers or the proof that you can produce. We will, however, do all that we can to get you the best deal.

Time to get to a new session.

Scott