Thursday, March 6, 2014

The Fine Print
by Allison Pang

There's something both exciting and terrifying about being under contract. As a fledgling author, many of us had dreams of just what it all means - fame, fortune and glory, perhaps - or book tours and signings - or hardcover best sellers lining the shelves. Pool boys, at the very least.

But the reality of sifting through a 20-odd page legal document is both mind-numbing and confusing.

And really, how many of us skim through contracts we probably *should* understand before we sign them? "Yeah, yeah, promise you I won't sue you if you accidentally kill me while I'm on the operating table. Done."

I'm pretty sure one of the reason contracts are so nefariously ridiculous is just for that - in the hopes that we, the poor consumer, will skip to the good part, sign our names and be done with it. Just look at EULAs (End User License Agreements) on computer software. Most of us scroll right through them during the install program with nary a backward glance. (Although you will sometimes find some tongue-in-cheek clauses within. Hell, when you install iTunes, you actually promise that you won't use the program to create nuclear or biological weapons with it. So, um. Yeah.)

As a species, we're rather nonchalant about signing over our rights when it comes to the next big shiny purchase. Probably because most of us aren't actually lawyers. In the case of, say, a house - most of us have a Realtor to help guide us through the process, or a mortgage lender. And we vaguely trust the "This paragraph means x or y. Sign here and here and here and you'll be all done." But at the end of the day, we're still the ones who have to take responsibility for just what it is that we're signing.

This is especially important in today's world of publication. Just a few years ago, there wasn't much by way of e-book rights written into contracts, for example. Kindles didn't exist. And even now, there's an interesting disparity as to what constitutes fair royalties of ebooks vs print books (earning a percentage of a gross vs a net sale can make a pretty big difference.) Not to mention things like rights (what are you selling? English rights, world rights? Again, something to think on. Some people like the publisher to handle all of that, some prefer to handle foreign sales on their own or through their agency. Lots of different directions to go.)

And then there's the right of first refusal clause - which is something publishers tend to sneak in on their contracts - but like everything else it can be broad or narrow. For my first print contract, I gave the publisher right of first refusal for my next work of adult UF - which mean the next UF I wrote after my contract was filled had to go to them. If they wanted it, they got it. If they didn't, I could take it somewhere else. Or, if I decided I didn't want to write UF anymore, I could go anywhere I wanted and not worry about it. A lot of "boilerplate" publisher contracts will sometimes have right of first refusal for *ANYTHING* the author writes after the fulfilled contract. Which might sound like job security at first...but it's not, especially if you and your editor have parted ways, or your sales aren't great. (Or in at least one case I know of, the publisher just sat on it. And sat on it. And sat on it...and the author was trapped, because she couldn't take it anywhere else - and everything else she wrote had to go to that publisher first anyway. Awful situation, all the way around.)

Whether you have an agent or not, I would argue that it's never a bad thing to have a literary lawyer take a looksee over what you're agreeing to. In theory, if you have an agent, that is part of their job...but not every agent is equal and I've heard enough horror stories to know that doesn't always work out. Sometimes a neutral third-party gives us the transparency we need to determine what is best for us - but it's on us to read that fine print.

1 comment:

  1. Knowing a lawyer would sure be nice sometimes. Lucky for me I have thus far avoided messing with the law, if you don't count my dog barking tickets (my husky, not me promise) and am flying under the radar of any would be contract offerers. Always an upside :)