[process] Contracts

suricattus with a post on literary contracts. Go read it. I’ll still be here when you get back.

Got that? Good.

I accidentally got involved in a mailing list argument a couple of years ago when a fan made a mournful comment about how a certain writer had been screwed by a bad contract. Their point was that if not for the perfidy of the publisher, this writer’s books would still be available for readerly enjoyment.

Being the special kind of idiot that I am, I replied that a writer is always responsible for the contracts they sign. If they don’t understand something in the contract, they should seek reliable advice until they do understand. The point is that we as authors are responsible for our own careers.

(For my troubles, I received a scathing critique of my email .sig, as an example of how I was a fool who didn’t know what I was talking about.)

But we are responsible. Editorial ninjas don’t break into my house, place a pen in my hand and force me to sign a contract. Nothing is non-negotiable. That doesn’t mean the other party is required to negotiate, it simply means that a statement that a contract is non-negotiable is itself a negotiating position. Part of the trick is in knowing what’s reasonable to negotiate, and part of the trick is in knowing what your no-gos are.

In my case, I often have to alter contracts to protect my by-line, since my copyright name is not the same. I have only ever twice signed contracts releasing all my rights to a story, and in both cases it was work for hire short fiction with someone else’s intellectual property. I have asked for things I did not get, and I have occasionally gotten things I did not ask for.

The point is that your contract is yours. No one else understands your interests as well as you do, not your agent, your editor, your publisher, your mom, or your best friend. If you don’t understand your interests as represented in the contract, fix that before you sign.

Now go read suricattus‘ post again. She said all this much more elegantly than I could.

ETA: C.E.P. with an interesting legal comment on literary contracts here.

One thought on “[process] Contracts

  1. Jaws says:

    Agreed, responsibility for what’s in the contract belongs to each party who signs it. That said, I do want to pick a couple of nits:

    (1) It’s not the editorial ninjas. It’s the beancounter ninjas, such as the ones who establish the “e-rights are non-negotiable, and they’re the publishers” rules for Certain Conglomerates… when those conglomerates have no intention or ability of doing anything with the e-rights.

    The editorial ninjas can be difficult enough to deal with when they’re editing a work; let’s not give them any more blame than they really deserve. 😉

    (2) The publishing industry’s contracts, with the exceptions of a few clauses, are stuck in about 1972. They are structured as if neither the Copyright Act of 1976 nor the Bankrupty Code (1978) — not to mention amendments to the Lanham Act in the 1990s, among other “lesser” changes in the legal environment — ever came into effect.

    It’s only been three decades. I guess it’s unreasonable to expect the publishers to change their practices too quickly.

    Basically, the entire publishing industry simply must recognize that it is engaging in a licensing transaction, not a “sale of rights”… and must discontinue structuring its contracts as if there is an actual transfer of legal ownership (as opposed to a transfer of legal privilege). It actually hurts publishers’ positions all the time, let alone the authors.

    — CEP

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