I am not a lawyer, nor do I play one on TV (though I have played the part of a judge in legal videos, and I look great with a gavel in my hand). However, reading, negotiating, and writing contracts has been a large part of my life for over fifteen years. I have negotiated contracts with the federal government, an insurance entity bigger than God, and with many major corporations. Yes, even that one.
In general, I love a well written contract. When they aren’t specific, they are from the devil. So what is a contract? A contract is a legally binding agreement between two or more parties to fulfill mutually agreed upon obligations.
A contract should promote harmony between the parties. It should be clear and specific. It should envision consequences for non-performance by either party. It should include an equitable way for the parties to end the contract if things aren’t working out.
Here is a link to SFWA’s contract page. I think these are okay examples. I think they are not specific enough, and the language is unnecessarily “legalese.” I personally would amend the heck out of these contracts before I’d sign them. But they are better than many of the contracts I’ve seen, and a good place to start. Some of you may say, “But if you won’t sign the contract as-is, they won’t publish you.”
Maybe, maybe not. Plenty of authors amend their contracts, and get published. But even if you don’t, so what? You can publish and promote yourself now. It’s a perfectly respectable thing to do. It’s not 1954 anymore. Go self publish and promote your book. Yes, it will take time. So did writing the book. If it does well, publishers will come to you. We have all heard the stories. It happens.
So here are the questions I would encourage every author to think about when it comes to contracts.
- How long do you want this publisher to be able to publish this book?
- Do you want print on demand to be considered the same as “keeping the book in print”?
- Do you want them to have electronic rights, and if so, for how long?
- Do you want them to have foreign rights?
- Audio right?
- Media rights?
- What about rights to some media that hasn’t been thought of yet? Do you want to reserve all unspecified rights to yourself?
- If you hate what they’ve done with your book, how do you terminate this contract?
For an agency contract, again, harmony lies in specificity.
- What book or books are they representing?
- Can they represent audio, ebook, foreign, media rights?
- If they fail to sell any of these rights, do you want the right of representation to revert back to you within a specific time?
- If you feel this agent has done a poor job of representing you, how do you get your rights of representation to this/these properties back?
I have several blanket recommendations.
- Define what it means to have a “book in print”. This is, in my opinion, the most egregious way that some publishers are using to keep writers in bad contracts. The claim that as long as the book is available as print on demand, it is in print, is to me ludicrous and offensive. A book, in my opinion, is in print when it is already on the shelf. If I can’t go into a book store and pick it up off the shelf, then it’s not “in print.” Print on demand is a wonderful thing, but it is its own category. And I think it should be clearly delineated as such in contracts.
- Think about how you want to terminate this contract. While it all may be roses and champagne now, in five years you may feel very differently. You may want all your rights to your book back. You may want to have just the media rights back. It is impossible to tell what the future holds, so there should be a meaningful, and fair, way to terminate the contract. And to be clear, if you choose to terminate a contract, it is reasonable for the other party to want compensation for their future losses. So keep that in mind. Fairness is important on both sides. Here are just a few suggestions of specifics that could go into a termination clause:
- When the book is no longer being printed as a mass market paperback
- When sales of the book are less than X per year
- All rights revert to you in five years
- Whatever seems like a good idea to you and your publisher
- Have a contract lawyer read your contract, and make recommendations to you, before you sign it. It’s not particularly expensive, and frankly this is your writing career. Isn’t it worth investing a little money to know you’re being treated fairly? You may choose to ignore an attorney’s advice, but at least you’ll know what you’re getting into, and that it’s your choice.