Contractual Issues
This wasn’t what I was going to blog about this week, but something came up that deserves a bit of air-time.
The history is that a few weeks back I got an email inviting me to contribute to an anthology in a fairly well-known author’s universe. The sample contract for the anthology stank worse than week-old shrimp in midsummer, but on the flip side of this was the prospect of fresh readers from said author’s fanbase (which is substantially bigger than mine, what with my writing career being in its infancy).
So I figured okay, I can write a throwaway piece and all is good.
Except… I blocked. Hard. Writing this piece was like pulling teeth. It did not want to be written, even though I could see chunks of the action in my mind.
So I finally finished it this weekend and sent to my trusted first readers to tell me how badly it stank and how much surgery it was going to need. Only to be bowled over by three sets of “It’s great” and “It’s the start of a novel”.
Enter dreadful contract, now costumed as the Grim Reaper. I still don’t see the ‘great’ part, but I trust my first readers implicitly (that’s why they’re my first readers). If they say the story is that good, it is that good. Except, dear Grim Contract Reaper means that if I sell the piece to this anthology I not only lose it, I lose anything remotely related to that setting for the length of the copyright period. Since the story in question could be its own universe without any changes (the anthology universe is moderately generic, and none of the author’s characters are so much as referenced in my piece), and there is more there, I have a problem.
The best I can say is that I have not signed anything, because while this is an invitation thing, the final piece still has to be approved by the universe author. I’m now in the unenviable position of deciding what in the heck to do now.
I can’t throw together something else on the same general line in the short time that’s left before the story is due. Not while working full-time at the Job That Eats Lives. I don’t want to lock my story and its setting away for all eternity, either. Even a polite apology runs the risk of being shit-canned – and I’m not inclined to make the shit-can a certainty by saying the contract stinks, which means a certain amount of not-quite-grovelling in the form of “ermagawd my job ate my life and my life went to hell and back and and and and and…” (Phrased a little more carefully, of course. And not written in any form of LOLCat – into which, for my sins – I lapse when stressed and overtired).
Decisions, decisions… I hate making decisions. I suck at decisions.
Bloody subconscious knew this and refused to tell me why it was balking. Bloody subconscious is a stone bitch. If you’re ever wondering where my inner bitch comes from, wonder no more. She lives in my subconscious and amuses herself torturing me.
Okay. That’s enough whining for one post. Now I need to go and make a decision I didn’t want to have to make.
Mad Genius Club 
“Letting it out” sometimes helps.
I usually get sirens when I blow out the FDA safe sarcasm levels yet again.
Do you think there is any wiggle room on the contract terms? Especially if you point out that you haven’t used any of their characters?
Have you been talking with Famious Auther themselves or with some publisher/packager that is doing the anthology? Would FA be more sympathetic?
Eh gods. Kate is “no name” — even I can’t get contracts changed.
Pretty much. Unfortunately the industry is very much take it or walk. If you’re not prepared to walk you get shafted.
Definitely a “devil and the deep-blue sea” dilemma there. 😦
It is. I rather suspect the devil writes publishing contracts for recreational purposes.
THIS!
That sucks quite a bit. I hope it turns out to be possible to add a clause allowing you to whatever you want with derivative works outside that author’s intellectual property universe.
The other things is… You hated writing this. Do you even want the option to expand it?
The chance I can get the contract changed is somewhere south of nothing. I’m a nobody. Famous Author is a Name.
I think I blocked not because I hated writing it but because my subconscious didn’t want to throw it away. Of course, my stupid subconscious couldn’t simply TELL me this. Oh, no. That would have been too easy.
Okay no easy out then. This is really, really nasty. How much do you like this gem compared to the other stories floating around in your head? Is doing the story version of infant sacrifice worth it to get more readers for the children, er, books that come later? (I have no idea of the answer, but maybe you do.)
The problem is that if she sells this story, she is preventing herself from writing not only the book the story really wants to be but also the subsequent books in what looks to be a series. I’ve had the pleasure — and honor — of reading Kate’s story and it is the opening of a new series for her. At least in my opinion. If she were to sell the story to the antho, that’s all gone. As she said, she has a very difficult decision to make.
I wish you didn’t have this “between a rock and a hard place” decision to make, Kate. But my advice, for whatever it’s worth, is this — save the story for yourself. Any short-term gain you could gather is not worth the trade-off of losing this story IMO.
If the deadline is the issue – how about asking for an extension? Even more on the outside – how about a ‘ghost writer?’ Maybe a writer friend with time to spare could sprint something out and agree to have you sub it in their name?
On the other hand, you could trust yourself to write something equally great another time, grit your teeth and just let it go.
Just a few thoughts. . .
Thanks, Chris. I wish one of those was doable.
What I wrote turned out to be something that… Let’s put it this way. Sarah was scared to touch it for the one change she thought it needed. It’s that distinctive, and Sarah and I mesh well enough that at times we can voice almost the same.
They made her submit a synopsis in advance, so she can’t say “it didn’t work out, but I wrote this” — which I’ve done in similar circumstances…
Wow, my sympathies.
How possible would it be to file the serial numbers off for the “this could be a novel” version? Maybe you could have your cake and eat it too.
Unfortunately the Grim Reaper contract also gives setting to Famous Author. If I wrote anything using a similar setting or similar character, Famous Author could go after me…
Evil, stoopid contract.
Wow. The publicity is sounding entirely not worth the loss of the story. I’m pretty good at math. If you want to throw some numbers out for a business case analysis of the opportunity costs involved, I could help with that. Or email me privately if you want to run numbers with me (a random internet person) and prefer to not have all the other random internet people watch.
AND that setting is KATE’s. TOTALLY Kate’s.
Hmm. How much rewriting would turn the current story into something you could happily throw away? How much to change the tone of the story? How important is the _story_ to the potential you see for novelization?
Conversely, are they paying you enough to compensate for the self inflicted bruises from kicking yourself?
And, if the Anthology Universe is fairly generic . . . is there a potential problem with writing in that sub-genre in the future? Just how broadly worded is this contract?
I’m one of Kate’s first readers. The setting and setup for that story, even if changed, would still invalidate a novel. And G-d, no, they’re not paying her enough. Also, this is the best voice I’ve seen from Kate and there’s layers in there. And you know I like Kate’s writing. If Kate were starving and/or had a bill that WOULD pay, I’d say “Take two aspirin and sign” — but now? No way.
That about sums it up, Sarah. It’s a stinky situation. I’d have been willing to lose a crappy story and setting – even a mediocre one.
Now I’ve had a bit of time to put some distance on the piece, I can see some of what you’re saying. Proof positive writers can’t evaluate their own work.
I have to agree with Sarah here. Add in the fact that this is the opening to a potential series of books and/or short stories and it most definitely isn’t worth what they’d be paying Kate.
As for the wording of the contract, it is sufficiently broad that if she wrote anything even vaguely like this short, the named author could claim copyright infringement. So, unfortunately, Kate is left with the hard decision to make.
“…the final piece still has to be approved by the universe author. ” Is there any way to talk directly with the universe author and explain the situation? I mean, if the universe author turns it down, then you aren’t doing anything bad. And since it doesn’t use the generic background or characters, they have a good reason to reject it — doesn’t play well with the rest of my universe. I.e., if you can get the universe author to play the heavy, then you don’t have to get squeezed between the big bad contract and the company.
Mike, if she explains the situation, the author is even more likely, imo, to say give me the story and then lock in Kate’s universe and characters. Then Kate, in refusing to submit, blackens her name with said author because she won’t play ball and be nice. As for not using the generic background or characters, the parameters laid out in the contract are broad enough that if Kate were to sign it and submit the story, just about anything in this particular sub-genre would then be off-limits to her were she to even use the same locale in another story. No, she either has to agree to toss out what, imo, is one of the best things she’s done and that has a lot of future potential or she has to gracefully bow out, citing personal or work obligations that prevent her from meeting the time limits of the contract.
Bow out, then. If you don’t need the money to save the farm, just say the heck with it.
Or you could write a poem version that goes with the synopsis but is radically different than the actual story. It would satisfy honor to write a ballad.
Especially if you make it a funny limerick ballad. Most anthologies need some humor, so they might actually take it.
There is no way they are paying her enough or exposing her to enough new readers to lock her out of a whole sub-genre. I say bow out as gracefully as possible (but then I’m already a fan and not a professional writer).
Yes. That is my opinion too.
And mine…
Okay. WIthout knowing the players, I thought there might be a chance that the “big name” author was a reasonable person. It does happen sometimes. Hum… sounds like time for Best Alternative to a Negotiated Agreement (BATNA) and so forth thinking. How do I get out of this situation with the least possible personal damage?
One possibly helpful thought — remember that even if Kate has “lost” this idea, characters, etc. she obviously can develop more. I know it sounds like this is a locked-in situation, without any way to win. Sometimes you lose — and go on to fight other battles. And just think what a great story this will make for the memoirs! The Time I Lost My Characters… and the Great Silver Lining I Found
Mike, I know you’re trying to be helpful but believe me, Kate giving this up would be like giving up the ConVent universe or the Impaler universe. Yes, this short story — which truly is the foundation of a novel — has the potential of being a very successful series. I’ve read both the short story and the contract. Were she to sign the contract, she would lose more than just a story.
Without breaking confidence, I can say that the “universe” the anthology uses isn’t nearly as well-defined as say the universe she and Sarah have written in with “the boys”. I meant it when I said in an earlier comment that by signing contract, she could completely cut herself out of a sub-genre. The universe is that defined that broadly. There simply are some battles you don’t throw in the towel and this is, imo, one of them.
Okay. I had the impression that she thought saying “No, thanks” in any way was likely to end up with her being blackballed or something, too. “Shitcanned?” So if she can’t say no, I’m not sure what options are left.
I’m appalled that such terrible contracts exist. I’m even more appalled that they’d want a synopsis beforehand, considering the terrible contract.
I think the tough but fair decision here is simple: bow out, claim time constraints, family health problems, whatever is truthful but would usually be beside the point. Don’t lose hold over a viable universe; it is _not_ worth it even if they paid you big bucks (which it sounds like they aren’t).
I so want to know what happens.
So . . . is it better to bow out claiming lack of time, or do you get out your pen and start Xing out clauses? Cover letter: “Wow, you need to get your lawyer to tighten this up! On the surface it sounds like it would lock me out of the whole sub-genre forever. I know that’s not what you intend, but one has to worry about how loose terms could be interpreted. Would you like a recommendation for the really good IP lawyer whom I have look over contracts?”
Actually, threatening (nicely) to bring in a lawyer isn’t a bad idea. “I never sign anything until my IP lawyer reviews it, and he has some questions about this contract that we need to resolve” can certainly make some groups decide that it isn’t worth the time and energy.
Guys, again, that might be a good idea if Kate happened to be a name. She’s not, not yet at any rate. The only thing that sort of thing would do would guarantee she’d never be asked by this author or the editor assigned to the project to participate in anything else by either of them again. Also, think about the expense you are suggesting Kate take on. IP attorneys are not cheap. For her to hire one to look over the contract, make changes to it and then communicate with the appropriate parties would not only eat up everything she’d be getting as an advance, in all likelihood, but also anything she might get in future royalties.
If she is looking for a way out, there doesn’t even have to be an actual attorney involved. I mean, I understood that she was looking for a way out. Even talking about attorneys can sometimes make people nervous. I guess the question is whether “this author or the editor assigned to this project” are worth keeping sweet by giving up this story, or not. If the story is worth keeping, yes, then there’s going to have to be some creative way to refuse. If keeping the possibility of future participation is more important, then that’s the choice. But I don’t think there’s any way to keep the story, and keep future options with this author/editor open. Is there? I understood that was the dilemma.
Scenario time, Kate. Say you bow out as gracefully as you can, but Famous Author and/or his/her publishers/lawyers don’t feel you grovelled enough and shitcan you. What would be the consequences of said shitcanning to your career? And how would they weigh against the consequences of losing the right to this story and setting?