The Author’s Biggest Mistake
This post ought to be filed under “Ministry of the Bleeding Obvious”. I hope most of you reading it will mutter “duh” and move on. Everyone else, kindly have it tattooed on an unobtrusive body part.
The author’s biggest mistake is not, as you may think, having your heroine gaze into a mirror itemising her lush hair, full lips and high, firm breasts while feeling insecure about her ability to attract men. That’s #2. I’m talking about contracts.
Let’s start with some true stories.
Friend: [tells me about a complex set up she’s doing with a fellow creator involving transferring large sums of other people’s money]
Me: You’ve got that down in a contract, right?
Friend: Oh, I wouldn’t want to ask for a contract, that would suggest I didn’t trust her.
At a conference contracts panel
Me: Hands up who isn’t clear what “Grant of Rights” means in a publishing contract.
[most hands go up]
Me: Keep your hand up if you’ve signed a publishing contract.
[most hands stay up. Embarrassed laughter.]
And in general:
Author: I don’t understand what all this legalese means but Publisher has always treated me well in the past, so I’m signing.
Author: I can’t believe I’m really gonna be published! I got the contract today and you better believe I signed it right away and sent it back before they could change their minds LOL!!!
Author: My brother deals with loads of contracts for the local council. He looked over it and he reckons it’s fine.
If that lot didn’t make your eyes bleed, you need to know more.
Contracts are scary, dull, and full of incomprehensible jargon. Nobody likes reading them, nobody likes negotiating them. But if you are an author looking to sign with a publisher, you have to read, and understand, and negotiate. It is culpably foolish not to.
The publisher’s job, and thus the job of everyone who works for them, is to make money for the publisher. Not for the author–that’s just a side effect which keeps the business lubricated. I have worked in publishing my whole life, over two decades, half a dozen companies. I have been a commissioning editor and a managing editor; I have negotiated, issued, and amended contracts, and dealt with rights exploitation and reversion. I was a publisher long before I was an author. And I know what I am talking about when I say that the publisher does not approach the contract thinking, “What are the most favourable terms we can possibly give?”
Writers are at a disadvantage here because, generally, we want to be published. We want to believe in the goodwill of the publisher with whom we’re dealing; we’re afraid of rocking the boat by being stroppy and asking too much. We probably can’t afford lawyers at all, and almost certainly don’t have access to an experienced publishing contract lawyer; many of us are unagented. Our eyes glaze as we read, and we’re not really sure what a lot of it means, but, you know, they publish lots of people, don’t they? The editor is lovely; authors say nice things about the publisher on Facebook. Surely it’ll be fine?
No. It is never okay to sign something you don’t understand. Your trust in the publisher’s goodwill will not get your rights or money back when things go wrong. Your unwillingness to read boring legalese isn’t an excuse, it’s an Achilles heel that covers your entire leg.
You should not sign an unexamined contract even if you trust the other party so much you’d get a tattoo of their logo. Because the best of us make mistakes. A contract may unintentionally fail to include, say, a payment schedule, or a date by which the book must be published, or a means by which the author can act on non-performance. The person drafting it can have deleted a clause by accident [raises hand] or just not thought to include something. Contracts are complex and boring, which is a great combination for producing errors. And stuff goes wrong. Relationships deteriorate, people get into bad situations. Some problematic publishers are scam artists from Day One; some start off well but get in over their heads. Some contracts are drafted by spectacularly incompetent lawyers; some have quite evidently not seen a publishing law expert at all.
Checking the contract
It is not an implication of bad faith to scrutinise the contract with great care, or to ask what clauses mean, or to negotiate more favourable terms. This is what the contracts process is for. If you aren’t prepared to take the contract seriously, you might as well just hand over your MS and ask the publisher to give you money sometime. (Don’t do that.)
The opinion of your brother who does contracts for the council is worthless (on your publishing contract at least; I’m sure he’s a great guy otherwise). You need someone who knows what they are talking about and can see potential pitfalls, and you are probably better off talking to a publisher who isn’t a lawyer than a lawyer who isn’t a publisher. The publisher might see what’s missing.
Some professional bodies such as the Society of Authors will scrutinise contracts for members. The RWA does not do this for individuals, although they did, admirably, pay for a legal opinion on a recent contract amendment that affected a lot of authors (including me). An agent ought to assess contracts for you, and have a lawyer to call on. If they don’t, or don’t ever suggest changes, get a new agent. If you have a friend in publishing or know an experienced author, you might call on them for an extra pair of eyes, but at your own risk, and be aware it’s a big ask.
Watch out if you ask an author at the same publisher. Many authors, for understandable psychological reasons, fall into a “my publisher right or wrong” attitude. Ignore anyone who tells you to have faith in a publisher, human or corporate. This is a business, not a family, and certainly not a church.
I know this isn’t easy, and many people just throw their hands up and sign for lack of other recourse. But you can protect yourself, starting by learning to read contracts. If you’re capable of writing a publishable book, you’re capable of grasping the basic principles of a publishing contract. If you have the courage to put your writing out for people to buy, read, and review, you have the courage to write “Please explain clause 4” or “This clause doesn’t cover everything, please add…” And you will always be the person most concerned to protect your own interests. Nobody else in the process is going to put you first. Trust me on that.
There are tons of helpful posts by experienced authors, agents, and contract people out there. Some good information on Contracts 101 here and also here. I am not a lawyer or a contracts expert so I won’t presume to offer a checklist. I will, however, outline a few of the things that can go wrong, to give you an idea of the wonderful and exciting possibilities that await.
Grant of rights
Rights are everything in publishing. Most publishers will ask for all the rights they can get. If you don’t understand what rights are, do not sign anything till you do. Go away and learn or you will get screwed.
The publisher ought to specify which rights they are taking, in what languages and regions, and for how long. So you might grant World English Language electronic publishing rights for a seven-year term, or World rights, all languages, all editions and formats, for the full term of copyright. (Which means till after you’re dead.)
Everything not explicitly specified as going to the publisher should be reserved to the author. Do not accept open-ended wording like ‘all media forms currently in existence and hereinafter invented’. Traditional contracts routinely used that, and when ebooks came along it gave publishers electronic rights that they never negotiated or paid for, and which in a huge number of cases they will neither use nor release. If an older in-copyright book isn’t in e, chances are a publisher is sitting on the rights. It’s not worth their financial while to digitise the book, but it would be giving away an asset to return the rights to the author, so they don’t. Business, remember?
Things like audio rights and translation rights can be licensed to other publishers and can make a lot of money. If you grant, say, audio rights to the publisher, they will take a cut (specified in the contract) on any deal they set up. If you retain those rights you/your agent can sell them directly to an audiobook publisher, or you can arrange an audio version yourself. That’s a lot of work and you need to decide what’s best for you.
Publishers often demand subsidiary rights and then leave them unused, to the author’s impotent fury. Don’t sign these away without a “use it or lose it” clause: you give the publisher, say, 12 or 18 months from publication date to exploit those rights, after which period the author can request reversion (getting them back) if they haven’t been used. That gives the publisher a fair chance to make money but lets the author regain control if the publisher doesn’t do the work. And you can of course leave the rights with them after the expiry of that period.
If the publisher insists on controlling audio and translation but won’t agree to a “use it or lose it” clause, you will have to make your peace with never seeing any of those rights exploited, never making any money from them, never having an audiobook or a translation–because that is almost certainly what will happen. My own failure to insist on a “use it or lose it” clause is why my most popular series is not yet in audio, and why two of my other series will probably never be available in print. It is not something I will omit again.
It is not fun to fume in hopeless rage while a publisher sits on rights they will never use, but won’t revert, and it happens all the time. Publishing is a rights business and publishers hang onto rights like Gollum with the ring.
Failure to Publish
A crucial and often-omitted clause that covers when the publisher doesn’t publish the book, or doesn’t do so in a timely fashion. This is far more common than you may think. What you need is a set term in which the book must be published starting from delivery of the MS, and right of reversion if it isn’t. For example: “The Publisher will publish the Work within 12 months of delivery of the completed manuscript unless otherwise agreed in writing between Author and Publisher. If the Publisher fails to do so, the contract will automatically terminate and all rights will revert to the Author.”
The key here is to have the period start from your action, and not from any act of the publisher. (If they insist on the start being acceptance of the MS, then you need a specified time period, eg “at acceptance of the MS or within six weeks of delivery, whichever comes first”.) A small press of which I have heard has an 18-month failure to publish term that starts when the book is assigned an editor. That publisher has been known to sit on MSS for a year or more before assigning an editor, who then doesn’t even read the damn thing for another year, and there is nothing the author can do about it.
A refusal to include a decent failure to publish clause when asked is a flag so red your eyeballs should ignite. Use the flames to set fire to the draft contract and run away.
A large publisher’s boilerplate contract might forbid you to publish a competing work for a period (eg 2-6 months) either side of the publication date. Fine if you write massive non-fiction tomes once every decade, less so if you want to publish five romances a year. Make this extremely specific (“no competing work of male/male paranormal romantic fiction set in medieval France”). Otherwise signing a series to be published at four-month intervals might make it impossible for you to publish anything else in your genre that year.
Option clauses, giving the publisher first dibs on your next book, can be a problem. You don’t want to have a vile experience with a bunch of jerks and then find you’re obliged to submit your next book to them. Georgette Heyer wanted so desperately to get away from her detective-novel publisher that she wrote Penhallow, a murder mystery where the victim doesn’t die till 2/3 of the way through and we see who the murderer is as they do it. I assume the working title was Shove Your Option Up Your Arse. I have also heard of authors with popular series writing drafts in which their central couple die, purely in order to get out of options. Downside: the publisher might accept it anyway, and then you’re stuffed.
Term and Reversion
What triggers the end of contract. A “full term of copyright” contract may conclude if the book is not available for sale in any edition, which means never given that ebooks can sit on Amazon forever at no cost to the publisher. If you must sign a term of copyright contract make sure there’s a sensible sales threshold below which you can revert, such as fewer than 500 copies sold at full price in a 12-month period. But frankly, consider before signing if you’re ready never to have your book in your control again. (Several author advocacy bodies are trying to get rid of these lifetime contracts: see here for more.)
For smaller presses there is likely to be a set contract term, e.g. seven years from date of contract, after which the author may request reversion at any time. Make sure the reversion process is laid out and simple. Some publishers have rolling renewal clauses, e.g. a two-year contract term, but the contract automatically renews annually unless the author requests return of rights in writing six weeks before the renewal date. This sort of arrangement has no obvious purpose other than to trap authors into another year’s contract against their will.
These are only a few of the possible pitfalls. I haven’t even mentioned the big one, money, and there are many more. Many. What if your book isn’t professionally edited, or the editor demands unreasonable changes? Do you get a meaningful say on the cover? Are there provisions for redress in the case of publisher breach?
It may sound like I’m saying authors should fear and distrust contracts. Not at all. A good contract is the thing most likely to protect your working relationship with a publisher, by spelling out exactly what both sides’ rights and obligations are, with dates, and allowing for redress if those obligations aren’t met. That’s a sound basis for a business relationship, which is what the publisher-author relationship is. It is not a family, or a friendship based on warm feelings of trust. Good intentions, fine promises, and cute dog pictures are all great things for a publisher to offer in addition to a rock-solid well-drafted contract; they do not replace it.
It is absolutely fine to scrutinise the contract, ask for clarification, demand extra clauses and alterations to wording, or ask for clauses to be struck out. That’s negotiation. And you don’t have to be afraid that the publisher will withdraw your offer for asking. (That has happened once in my 20 year experience, and I’ve worked on contract negotiations that took two months and made me afraid to open my inbox. The one where we withdrew the offer was far, far beyond that.) There are of course publishers who will offer you ‘take it or leave it’ terms; to me this is a massive red flag. Consider: if this is how they’re treating you when you can still walk away, what will it be like when you can’t?
A bad contract is worse than no contract, just as a bad publisher is worse than no publisher. It may not seem that way when you’re desperate for publication; it bloody well will five years down the line. And you may feel that a publisher has you over a barrel now, but that barrel will not become more comfortable if you sign a document that allows them to keep you there for seven years.
Signing a contract without full consideration is the biggest professional mistake you can make. This game is hard enough at the best of times. Make sure you read the rulebook before you play.
KJ Charles has worked for seven publishers as an editor (including many, many contract negotiations) and with four as an author, and has made every possible mistake in that time.
Her newest release is An Unseen Attraction with Loveswept.