The Importance of Understanding Contracts, Part One Thousand

September 27th, 2005 · 10 Comments
by Booksquare

Despite many (many!) years of working with contracts relating to the calculation and payment of royalties (or non-payment, depending), there is one thing we would never do: sign an agreement without the benefit of an attorney’s review of the language. The fact that so many people do is terrifying. Even if your contract is the fairest, simplest, most clearly written document in the universe, if you don’t understand each and every sentence, then you deserve what you get.

A good rule of thumb is that the contract is almost always written in favor of the party drafting it. That is generally your publisher. You can do the math from here.

Take the case of an ex-DEA agent on the brink of attracting interest from a producer:

The book didn’t exactly rocket up the best-seller list. [Paul] Doyle said the publisher did nothing to promote the book, got him no speaking engagements and didn’t push it to bookstores or to Hollywood. But according to the contract he signed, the publisher gets half of any TV or movie projects that came from Doyle’s book.

Apparently, this is a financial “non-starter” (the reasons are not expanded upon, but presumably it’s because he doesn’t want to share), and Doyle is attempting to renegotiate his deal. We, unfortunately, do not feel much in the way of sympathy for the author, just as we don’t feel sympathy for the friend who licensed the rights to his life to the husband for a measly $20. It’s all very well and good to be an artsy artist, but never let that get in the way of minding your business. And your writing career is your business.

File Under: Square Pegs

10 responses so far ↓

  • Susan Gable // Sep 27, 2005 at 12:12 pm

    Oh, boo-hoo, that poor man, what an unfair contract and raw deal. (snark)

    Whoops. I seem to have forgotten to put on my Be Nice t-shirt today. (G) Seriously, I wonder if that guy went undercover with as little homework as he did before he published? And if so, and the bad guys caught him with his pants down, did he ask for a do-over?

  • Booksquare // Sep 27, 2005 at 10:02 pm

    Susan, you will be happy to know that today was designated as “crabby.” A helpful reader has compiled a Booksquare mood chart. The baseline is Cranky, though I can be Grumpy. The chart has other levels (if I recall correctly — it hasn’t been published officially): Pissed and Livid. Livid is the worst. I reached Livid late today.

    There is a companion chart: Hopeful, Happy, Enthusiastic, and Ecstatic. There was one more, either Lukewarm or Cheerful. I can’t recall.

    This is about the point where I discovered Mood Swings. For example, while exploring the possiblities of Livid, I found that I could also be quite Enthusiastic. This is where emails I regret happen. I am not, happily, bi-polar, though that was suggested.

    And, yeah, love the do-over idea. Please read your contract. You don’t want to read about reversion of rights clauses again. Trust me.

  • Douglas // Sep 28, 2005 at 7:33 am

    Seems like we are headed down the overly snarky path on this one already, but I’ll try to be the voice of ‘too lazy to read a contract’ faction.

    I consider myself an expert in this field as I have not read in detail a number of contracts that I have signed for items a good deal more expensive for me than a book contract would be lucrative for, nearly, anyone from what I hear.

    We are advised to read our contract. Well, really, what good is it to read a contract? The rule of thumb as stated above is that a contract general favors the dude handing it out in the first place. And by corallary the hander outer is not terribly ammenable to changes to the contract should the grabber suggest a bit of different wording or, God forbid, the removal of an entire clause.

    I think it’s pretty well understood by those of us that might use our entire advance to pay for a lawyer to read through an essentially static document that the net reward is a bit thin.

    The only thing reading a contract does is to get past the “I told you so.”/”Son of a…” hump a little faster and directly into the “Give us half” phase.

    All this is based on my experience with car, house, apartment, and credit card contracts. With some business contracts I have been party to, both sides have been able to cross through items they did not like and re-submit.

    How goes it with publishing contracts?

  • Douglas // Sep 28, 2005 at 7:35 am


    Is ‘overly snarky’ the same as ‘very pregnant’?

  • Booksquare // Sep 28, 2005 at 10:16 am

    Douglas, I believe you are correct. Though I’ve seen many who are, indeed, very pregnant. Degrees of snarkiness are helpful.

    First, of course, many contractual elements are negotiable. The degree of give on the part of the publisher may be slight on the first contract, but you never know until you ask. And I suspect the gentleman in question not only did not read his contract, but he did not understand what the language meant until it was too late. I know that being published is an exciting, unbelievable thing (or at least I hope to know that), but authors should not be afraid to walk away from the deal if the terms are unfavorable. Yes, I know, easier said than done!

    The party drafting the agreement has the upper hand. The author has the choice of agreeing to the terms as written, renegotiating where possible, or deciding not to work with that particular publisher. While contracts can be renegotiated after the fact, I cannot feel sorry for someone who is complaining now about something he or she should have known was a legal limitation.

    And, yeah, I’ve been reading far too many royalty agreements this week and my brain is feeling mean on this issue!

  • Kevin // Sep 28, 2005 at 11:04 am

    The actual K2 Mood Scale is as follows:

    The Bad Moods start at Grouchy and move on from there to Cranky (I believe this is the self admitted start of most days), Crabby, Pissy and lastly Livid.

    The Good Moods begin with Hopeful and continue with Fine, Happy, Enthusiastic (one of her better Moods) and finally Ecstatic.

    Helpful Reader

  • Jill Monroe // Sep 29, 2005 at 5:03 am

    Dennis – there’s a BIG difference when you’re nine months preggers, have trouble breathing, waddle and visiting the bathroom every ten minutes and four month pregnant when you’re only asking the man that got you that way if you look fat or pregnant.

    Kevin – love the scale. I’ve personally been witness to ALL those moods. I actually prefer livid over pissy.

    BTW, the correct answer to the pregnant vs fat question is neither. The correct response is a contemplative, “I think you look great.”

  • Douglas // Sep 29, 2005 at 7:53 am

    My kids bailed out at 5 and 3 weeks premature, so we never made it to the full blown get this this thing out of me stage.

  • Douglas // Sep 29, 2005 at 8:14 am

    Dang it! I keep hitting the submit button before I finish a thought. Well, before I finish all my thoughts.

    I agree that the balance between being published and getting a fair deal often leans toward the former. It’s good to hear that the publishing world is more ammenable to modifications that say my mortgage company was a few years back.

    I suppose this is how folks like Cory Doctrow and John Scalzi get to keep electronic versions of their work up on their site while still selling hardcopies.

  • Booksquare // Sep 29, 2005 at 8:30 am

    It’s okay — sometimes it takes me days to finish thoughts. Eventually one must hit enter and then just type away on another thought.

    Cory Doctorow is a great example to use. He’s proven that you can negotiate with publishers. More importantly, in my mind, he’s proven that exploring alternate publishing models (like giving away your work while simultaneously having it in retail outlets) is a viable and worthwhile project.

    If I were to take away one thing from what we’ve been talking about (until your next thought!), it’s that while the publisher controls the contract, you control your choices. Being published shouldn’t be more important than doing what is best for you. If the terms of an agreement are something you can’t live with, walk away. There are other options, hard as it may seem to see.