What to do? What to do?

The other day, I was talking with a writer who was over the moon but trying to think like a businessman. Well, businesswoman. She’d finished a book six months or so ago and had been shopping it around. After deciding against going with an agent, she did her homework and found publishers in her genre who would accept “over the transom” submissions. After silence from some and rejections from others, she finally had a contract offer. It wasn’t a big name publisher or even a medium name publisher. But the publisher wasn’t exactly fly-by-night either. But, reading the contract, she had concerns and wanted to talk them out before spending the money to have an IP attorney look at the paperwork.

I’ll admit, my immediate reaction was to tell her to run long and far from the contract. But I was good and I said I’d be glad to meet for coffee and we’d discuss it. But she needed to bring the contract with her so I could see what they were offering and what they wanted from her.

I won’t get into the nitty gritty of the contract itself. Also, none of what I say here is to be taken as legal advice. But the questions I posed to her after looking at the contract and her communications with the publisher are questions we should all keep in mind if looking at a publishing contract of any kind.

Is there an advance?

In this case, there wasn’t. Because of that, I immediately dropped down the contract to find the royalty schedule. This publisher was being “generous”. It would split royalties for e-books at 50-50 and for print at 60-40, with the “house” getting the larger portion. Also, these royalties were after “expenses” which were only generally defined.

When are royalty payments made?

Amazon and other online vendor and third party aggregators generally pay on a monthly basis after the first two months. That means an indie author will see money in their account in three months and then every month afterwards as long as there are sales. Unfortunately, that’s not the way most publishing houses run. Some pay quarterly, some semi-annually and some annually. This allows them to earn interest on your money. Earnings that aren’t reflected in your royalty payments.

In this case, payment was quarterly. Not bad but not great.

How soon would the book be published?

This is where my alarm bells started going off. One of the very few benefits traditional publishers have over indie publishing right now is the ease of getting their books on the shelves at bookstores. That’s the draw for many writers. After all, we all get a rush from walking into a store and seeing our book sitting there. But it takes time to get to that point. Not just the production time but the time to get the book marketed so the stores know its out there. Sure, that marketing might only be a listing in the publishing house’s catalog, but it isn’t something that happens overnight. Then you have to take into account the store’s own ordering and stocking schedule.

That means if your contract says the book will come out in three months, there is a very real chance that little to no real marketing of the book will be done. At least when it comes to marketing it for brick and mortar stores. Marketing for digital versions is easier to do because you don’t have to worry about shelf space or some regional or national marketing manager to place an order for hard copies.

And that brought us to the first question I told my friend she needed to ask: Do they rely on print on demand? The follow-up question was how do they plan to get her book on the shelves of the bookstores?

Rights Reversions

Or, when will you get your rights to the book back?

This needs to be very clearly defined. Some smaller publishers put a set date with option clauses in the contract. For example, they contract for exclusive US or worldwide rights for a period of five years. After that, they have the option of renewing for one year intervals. At that point the author may or may not have the power to decline the renewal. It depends on contract language.

Larger publishers tend to use the “out of print” language. The problem with this is that nothing goes “Out of print” in the digital realm. So you need to have a specific number of books sold in a quarter or year spelled out before the OOP clause comes into play. If sales drop below that number, you have the right to demand your rights back and get them. But only if the contract has it spelled out.

Along this same line, this is another reason why you need to know how the publisher handles their print editions. If they aren’t going the POD route, they will know how many books they are ordering in print format. You need to know that number as well and track it against the number of hard copy books you sell. Why? Because if you ask for your rights back, a number of publishers will try holding those rights hostage until you pay them for any printed versions they have in stock.

I can’t tell you the number of times I’ve talked with traditionally published authors who have found themselves in this position and who, after doing some simple math, have discovered the number of books supposedly on hand doesn’t add up when compared with what they say have been sold. Either the publisher had ordered up additional printings–which should have triggered a new royalty payout according to the terms of their contracts–or they were cooking the books or they’d made a “mistake”. Either way, it was to the detriment of the author and too often the author was afraid to push the issue for fear of being blacklisted by the rest of the industry.

Oh, these publishers might offer you a “discount” for the books but it will still be money in their pocket and not in yours. Don’t pay and they will try to refuse giving your rights back.

So you need to make sure you have a clause in the contract that allows the publisher to sell any books already printed even though rights have reverted back to you.

Marketing and PR

In other words, what are they going to do to help get word out about your book? Put it in their catalog? Send our ARCs? Set it up on one of the e-ARC sites to get early reviews? What?

Too short of a time between contract signing and publication date means much of the marketing and PR won’t get done.

Along this line, don’t expect them to send you on a book tour ala Castle or some of the other movies or TV shows we’ve seen. Book tours aren’t being used like they used to be. More often than not, when you see an author at a library or bookstore, the money for that appearance has come out of the author’s own pocket. Oh, they might be reimbursed for some of the expense by the publisher but don’t bet on it, especially if it is a medium to small publisher.

Why can they cancel a book?

This is so important in this day an age. Too often we’ve seen books canceled because social media has suddenly decided the author or the topic wasn’t up to its standard. Trial by media, in this case social media, rules when it comes to traditional publishing and it will listen to the screeching of a relative few on Twitter, etc., and panic, pulling books simply to avoid controversy.

Some publishers have also shown a propensity for pulling books if the author becomes controversial for one reason or another.

They seem to have forgotten that the more controversial a topic or author, the more likely it is someone will buy the book just to find out what all the furor was about. They will sacrifice sales for political correctness and safety.

Concerned by vague language throughout the contract when it came to responsibilities of the publisher, I turned my attention to what the author was required to do. Let’s just say I wasn’t surprised to see much more specific delineation there.

She had to turn in the manuscript and edits by certain dates or they could cancel the contract. (There was no similar language if they failed to get her edits and galleys by specific dates.)

She had to commit to promoting and marketing the book using social media, blogging, blog tours, etc. She was also “encouraged” in the notes to the contract to contact local media outlets, libraries, etc., to set up interviews and author appearances.

Failure to live up to the terms of the contract could be viewed as putting her in breach and the publisher could cancel the contract and bill out for expenses already incurred on the book.

That is when I told her I would tell them thanks but no thanks. the publisher was getting all the benefits and she was getting little, if any. But, if she chose to go forward, she needed to ask the questions we outlined and then take them, along with the contract, to an IP attorney. But she should not sign the contract as is without first discussing it with an attorney.

I swear there were tears in her eyes when she tried explaining that the editor she’d been dealing with was so nice. She’d been assured that this was all just boilerplate and if she had any issues or concerns, they’d work them out. If she wanted her rights back at any time, all she had to do was ask.

I didn’t laugh. It was difficult but I managed it. I reminded her this was her business. She needed to treat it as such. In this litigious society, we no longer live by the handshake. She needed to have those promises in writing as part of the contract.

This is all a long-winded way of saying to never take anything at face value. Read the fine print. Ask questions and make sure assurances are added into the contract and, most of all, never ever sign until you have an IP attorney vet the contract. Otherwise, you might find yourself signing over the rights for your book for not only your lifetime but for the life of copyright.

36 thoughts on “What to do? What to do?

    1. I don’t know. She’s young enough that the tech end of it doesn’t scare her–or shouldn’t. But she is being pushed by her family to be a “real” writer. Shrug.

      1. She should carefully and ever so politely make it abundantly clear to her loving family that since they know so much about the business they should sit themselves down and write their own damn books instead of giving bad advice on something they have no experience in.

      2. *grumble* You mean real, like the physical book (trade paperback) I’ve got in my sweaty little hands, signed by the author, which I bought from the author’s Ebay store just a few weeks ago?
        (Count Taka and the Vampire Brides. Insanely fun book, especially for myth geeks.)

        It only cost a bit more than an unsigned tradpub, too.

  1. “And how much are you going to pay me to do your marketing?”

    Le sigh. If I was going to do that much of the work, there no point in handing them the lion’s share of the money.

    1. Yep. My feelings exactly. I stopped shopping around for agents when they started asking upfront, before they even saw anything I wrote, what my marketing plans were, who my contacts were, etc. Sort left me with the impression they weren’t working for me but for the publisher.

  2. I immediately flashed on an established author of our mutual acquaintance who is currently struggling with one of the “good” publishers. They have informed this author that they do not care to continue with her current series and refuse to release the rights to what’s in print unless she buys the supposedly huge inventory they claim to have in their warehouse.
    So if the author chooses to continue the series through indie absent the rights to the existing books any further books would potentially create interest in that backlist and be of great benefit to the publisher holding the rights at ransom.
    To be blunt, traditional publishing is and always has been a business built on the backs of struggling authors and structured so as to bestow the majority of the rewards straight into the publisher’s pockets. Have to keep a fat cash flow healthy in order to afford those plush NYC offices don’t you know.

    1. like how they claim PB prices are so high and had to go up because of publishing costs (literally claiming the cost of ink and paper was going up) but somehow want to charge *more* for the version with no ink or paper? yeah…

  3. Since I’ve started “working” I’ve gotten a whole different outlook on contracts and legal documents. Sure, sometimes I think that my boss is a bit on the obsessive side, but he was a lawyer by training once, and I think maybe even a judge. But here’s the thing… I grew up to view litigation as PERSONAL. Suing people without an overwhelming cause was sinful even. Certainly it was a last resort. Being too uptight in a contract or wording was suspect for sure. Certainly good people could shake hands and keep their word.

    But a contract or legal document is meant to avoid disagreements about who has to do what and what is expected of anyone. Going to court over interpretations still happens but it’s not personal at all. In our industry those contracts are inheritable and transferable and there are disputes about those transfers and consolidations and who sold what percent of their share and who retained what, all over decades. I’m not saying that no one has hard feelings but everyone is expected to look out for their *own* interests and the contract is to say exactly what is what. Not personal. Not because “I don’t trust you”. It’s a business and legal document, not a friendship bracelet.


    But getting past the ideas that I had growing up really isn’t easy and I’m sure I’m not the only one who grew up believing that *good* people didn’t need to write everything down.

    1. In some of the publisher bankruptcies we’ve seen the properties, the author’s work, turns out to be *assets*. It’s complicated. There’s no handshakes in good faith that can adjust to new circumstances when something goes belly up.

    2. It’s why we have the idioms ‘good fences make good neighbors’, and ‘mending fences’.

      The fence is a symbol of the agreement between adjacent landowners regarding the boundary. Keeping it inspected and in good repair together minimizes the legitimate grounds for dispute, hence minimizes the disputes between people of good will.

      A contract or fence is of no good with someone of bad will. If you find someone like that, better to not do business with them, or cash on the barrel head only.

      Poking at the contract is a way to test the other party.

      Furthermore, ‘word is good’ contracts are acceptable for a few trusted people at low volume of transactions. You want complex things on paper because a) you have a trustworthy reference to go back to b) you can look at the confusing stuff and make sure you both understand the language.

      I do think it is better to take business risks you can afford the loss on, so you can take a deal gone badly as a lesson about the other party, and drop it. To seek to avoid litigation, or at the very least, defer it to a late stage.

    3. The problem with so many publishing contracts is that publishers held the upper hand for so many years. There was no viable alternative to them. So they got to dictate the terms and the writers basically got screwed in the long run. It’s why they have been able to get away with using the hand-wavium figures of BookScan to determine the number of units sold instead of a real-time inventory tracking system like most other manufacturers employ. It’s why they can have vague expense clauses and why they have been able to walk back their promotional responsibilities. It is why, when e-books came onto the scene, they were able to continue taking the lion’s share of the royalty cut even though they have no real expense for the creation of the ebook, at least not if there is a print version as well.

      1. BookScan was an improvement.

        They were shocked and startled when they announced and found themselves besieged with requests from authors, they had thought the market was only publishers.

        1. It may have been but it is nothing but a means to rip off authors now. Publishers know how many books are printed, where they are shipped and what books are sold or pulped/returned. Bookscan still doesn’t account for every sale from every bookstore. And authors are supposed to just trust them and take the loss.

  4. Oh, and sending back contract with changes is NORMAL. It’s not an insult. It’s business.

    1. Except, in traditional publishing, a number of publishers–big and small–will laugh in your face if you aren’t a best seller and you want to change contract terms. You’ll hear things like “industry standard” and “too hard to change”. The larger the publisher, the more such stories I hear.

      1. Sounds like a personal problem. :/

        For the publishers, I mean.

        I absolutely understand that a culture developed of supplicant to patron and can I just kiss your toes or do I have to kiss higher. Desperate authors are a copper coin a dozen. Just move on to the next one until someone doesn’t care how badly they’re abused. The only check on that was competition with other publishers and look where that is today.

        But in actual *business* like grown-ups do in the real world, negotiating a contract is not an insult. It’s normal.

  5. A good IP lawyer would have laughed and the amount of red pen on that contract would have been ‘interesting’…

    1. If they even let the client consider the contract in the first place. This wasn’t the worst one I’ve seen, but it was damned close.

      1. That sounds like a column right there. “Hello, would like to sign up to let us **** you over without recourse?” but in allegedly polite (though likely merely masking) language.

        1. LOL. Ox is being bad again and I love it. I might have to embibe the right “special” brew and write that one up.

  6. I swear there were tears in her eyes when she tried explaining that the editor she’d been dealing with was so nice. She’d been assured that this was all just boilerplate and if she had any issues or concerns, they’d work them out. If she wanted her rights back at any time, all she had to do was ask.

    I’ve read quite a bit on this point, and what I’ve generally heard is the following:

    “Don’t think about how that nice lady you’ve been negotiating with is likely to interpret the contract. Imagine that your worst enemy ends up acquiring the publisher in a bankruptcy sale and figure out the worst possible way HE could interpret the contract.”

    I’m sure I’ve seen that from KKR, but it’s been other places too. It’s not an unreasonable fear; even if the people you’re negotiating with are really as nice as you think, mergers and acquisitions, retirements and reassignments, are all part of the business. And when you’re no longer dealing with the same people, the only guarantees are what you have in writing.

    1. She might have felt as if the betrayal was personal, as if the “nice” lady was lying on purpose. She might well NOT have been. After all, she’s not an IP lawyer, right? She also only knows what she’s been told and she knows her own good intentions.

      It might be possible to get that contract in a form that didn’t totally suck, thus satisfying the family desire to be able to brag on their daughter’s success without having to explain things.

      What gave me the most twinges was that they were going to bill the account for services/expenses. That might be “standard” but it’s completely open ended unless an end is specified. I’d take a smaller royalty if they weren’t able to suddenly “find” editing or art or administrative or other costs and take it out of *my* share instead of their own. Particularly if these are IN-HOUSE expenses. “Oh, we billed hours for 5 people in a three hour conference where we discussed your book and ate pizza, which we also billed to you.”

      1. Yeah, the big red flag for me would be the publisher not putting a cap on expenses or spelling out exactly what would be paid for.

        Earlier this year I had a book published by a very small press, and the deal was that the publisher paid the upfront costs, which were spelled out (so much for a cover, so much for editing, so much for promotion) and would take that much out of the profits first, with royalties to be paid after that.

        I’m okay with that–they are taking the risk, they deserve to be reimbursed for costs prior to me getting paid. I’m not out of pocket at all.

        However, the important thing is that these aren’t ongoing expenses–this is money that has already been paid out to subcontractors. With an open ended expense clause it would be very tempting for a publisher to do a little creative robbing of Peter to pay Paul and use royalty money from one project to “help” another project get funded.

        1. You’re lucky with that contract. I can’t tell you the number of contracts I’ve seen or authors I’ve spoken with where they’ve had the unspecified “expense” clause and they would then refuse to clarify it.

          1. That’s one of the advantages of working with small presses–the contract was something we worked out together rather than a diktat handed down from on high. I think a lot of authors (particularly if they have been submitting manuscripts unsuccessfully for a while prior to getting an offer) feel that they have to accept whatever terms they are offered.

            And, sadly, there are unscrupulous people in the publishing business who will take advantage of that. Be polite and businesslike, but if there are terms that are unclear, ask for it to be made clear, in the contract. (An assurance made in an email is worth bupkis, and a verbal promise even less.)

            It may be that the publisher simply didn’t think through a particular clause and you’re helping them to write a better contract. I’ve had publishers thank me for questioning something that they hadn’t considered.

            If they refuse to negotiate, then you need to seriously think about whether or not this is someone that you want to do business with. After all, a book is likely to go through a dozen revisions before it’s published, revising a contract a couple of times before signing it shouldn’t be a big deal.

            1. You’re absolutely right. What I’ve seen in almost every case except for a few small presses is they either try to get you to accept an email assurance that they’ll work with you outside the terms of the contract or they tell you they can’t change it. Both are BS and I’ve told writers to walk away from contracts when that’s happened.

      1. I miss here posts still. She was one of those watchdogs of the industry I followed closely when she was alive.

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