Essay–Contracts For Nothing
Writing is a business. Wait…no…publishing is a business. Writing is the stringing together of words through some strange process incorporating the brain, a writing medium, and Cthulu’s leavings. Publishing, on the other hand, involves editors, designers, layout, production, and marketing. Or at least it should.
As I’ve mentioned multiple times, I’m a hybrid author. All but one of my books has been published by Shadowpublications.com or Blue Moose Press. In both cases, I am the publisher. And guess what? I pay editors. I pay designers. I pay folks to layout the text. I pay someone to produce the books. Unless it’s an ebook. Then I don’t pay myself for putting it together. Once all that’s done, I release it to a myriad of marketplaces and pray to Garaaga that someone will notice.
Why do I do this? Because I’m trying to be a, gulp, FULL TIME WRITER! Because how cool would it be to create characters and then kill them for a living? That’s the dream! A paid serial killer! Just sounds too damned cool, doesn’t it?
Yeah. That’s the problem. It sounds cool. Writing is work. Editing is work. Publishing is WORK. There are days you want to smack yourself in the head for being so bad at all three. There are other times where the mania lifts you to Proxima Centauri where you dine on bison and drink endless pitchers of amazing beer. Other days, you just cackle as you find new ways to mess with both your characters’ and readers’ minds.
Alas, I digress. I bring all this up because sometimes, quite frequently in fact, I wish SOMEONE ELSE would do the ugly chores involved in the actual publishing of the book. As long as they pay their folks to do great jobs on designing, layout, marketing, and etc, I don’t have to. More importantly, they know how to market. But the best part? I get to just write and not split my focus on the business side as much.
Except, of course, when it comes to the dreaded contract. A contract is an agreement between entities. A contract basically says “I’m giving you this, and in return I’ll give you this. If I fail to live up to my side, here are the consequences. If you fail to deliver, here are the consequences.”
Did you pay attention to what I said about the contract? “I give you, you give me.” And then there are “consequences” if either side reneges. Sounds very straightforward, right? Um, wrong.
There are these things called “lawyers.” They like to write contracts that cover every possible problem in the universe. Shady business people use shady lawyers to write contracts filled with landmines, bear traps, and even enslavement. Okay, that last part may have been a bit dramatic, but I stand by it anyway. And I’ll tell you why.
In the world of publishing, publishers want to cover their asses. Writers want to cover their asses. And each party wants to get as much out of the other as possible. That’s business. Reputable publishers will agree to do the following:
- Promise to provide editing for the work.
- Promise to provide cover art for the work.
- Promise to publish the book within a reasonable time frame.
- Retain the rights to the book for a REASONABLE amount of time ( < infinity is preferable).
- Provide a number of FREE copies of the book to the author.
- Allow the author to purchase additional copies at a discount.
- Provide a REASONABLE royalty for e-books and print books.
- Provide an advance (although this might be completely token. We’ll get to that later)
Disreputable publishers will usually put the following into their contracts:
- Retain the rights to all characters in the book, the book itself, any audio/video/virtual/multimedia rights, the writer’s first-born piece of phlegm, and any loose bills in the writer’s wallet. They will do so in perpetuity and promise nothing in return.
- Promise to publish your book some time before our sun dies.
- Offer shitty royalties.
- Offer no advance.
- Demand the writer wash their car on a moment’s notice.
Complete and total asshole fucktard publishers might also put the following in the contract:
- Have first right of refusal on any thing the writer writes, including memos and doodles, in perpetuity or as long as the Earth keeps spinning. If the writer dies before perpetuity, then their heirs will be pen-slaves for the rest of their lives. This will continue for at least seven generations.
- Any book written and accepted by the publisher will be bound by this same, non-negotiable piece of shit contract.
In case you didn’t get it, I’m kind of adding ridiculous verbiage to my descriptions. Considering how insanely one-sided the last two lists are, I figured it would make them more believable.
The first two contracts I turned down didn’t quite have the same clauses I listed as being disreputable. But they were close. Real close.
Had I signed either of them, I wouldn’t still have Garaaga’s Children as a series. I wouldn’t have control over any of the characters or tales that overlapped that series. I would own nothing. I wouldn’t have had an advance and the publisher could easily claim the costs of book production and accounting ensure my non-advance would ever earn out. In other words, I would have sold my writing career…wait for it…for nothing. 0. Zilch. Nada.
NOTHING! NOTHING! NOTHING! GARAAGADAMMIT!
As you might have surmised, I’m a little passionate about this. Why? Because I consider it pretty goddamned unethical behavior. I like to be optimistic and give people the benefit of the doubt, but anyone that sticks a contract like that in front of my face is about as shitbaggy as it gets.
Now, to be fair, this kind of bullshit is usually inserted into a “boiler-plate” contract. Lawyers and businesses LOVE boiler-plates. Why? Because, believe it or not, most folks aren’t going to look at it twice and are just going to sign it to get what they want. In some cases, that’s a car. In others? It’s the DREAM of getting what you want, regardless of the realities.
Writers fall into that last group of people. So do musicians, visual artists, and any other creative folks. The “I DID IT!” dream. The dream of walking into a bookstore and seeing your book staring you in the face. Or of being the next Scott Sigler.
That dream, that validation of your worth, of your imagination, is too powerful for common sense to reign. The little voice that says “you’re about to get fucked!” is drowned out by the dream’s screams of impending victory. So people sign. And then?
Yeah, a car wreck only ends one way–A WRECK.
When you whine about signing the boiler-plate, I ain’t gonna listen. You signed the contract. You acted before thinking. And now? You’re screwed.
Now back to the boiler-plate. The publisher isn’t as dumb as you think they are. Most publishers, yes, even reputable ones, use the boiler-plate as a negotiation mechanism knowing full well that sane people are going to ask questions or say “no, I’m not doing that.”
That’s when the “fun” begins. You haggle. You talk. And you finally come to an agreement or agree to disagree and terminate the talks. In other words, find something reasonable for both of you or it’s not worth doing.
Writers can be as nasty during this process as they want. Or so they think. But that goes both ways, folks. BOTH WAYS. The publisher can be unreasonable and YOU can be unreasonable. So figure out what reasonable is. Do your research. That way if you manage to start the haggling process, it will be possible to find common ground.
Now, back to the disreputable folk. They will stick to the boiler-plate. They will not negotiate. They will demand your works for near nothing or they will walk and you’ll get nothing. Um, do the math kids: nothing = nothing.
You are the creator. You have the rights to the work you wrote. You have the right to use that work to produce audio/video/virtual/multimedia adaptations. You have the right to the characters and worlds you may have created. And you have the right to write other books. Those are your rights. Know them.
To get published by a publisher, you’re going to have to give up something. Because you have the copyright, you have to give them permission to print your book or publish an ebook. So that’s a right you’re giving away from the get go. Contracts will usually stipulate this for some amount of time that’s reasonable. Boiler-plate contracts from disreputable shitbags will demand those rights in perpetuity. That means for as long as the copyright holds.
Some publishers want the audio/video/virtual/multimedia rights to your creations. That’s perfectly acceptable. Provided, of course, you make them pay for it either via percentage of proceeds or a significant up-front advance.
And that’s the trick. You can give away some or all of your rights. You can do so for nothing, or you can do so for compensation. Um, need I really say “compensation is preferable?” I guess I do.
The reason I’m going off on all this is because a large number of authors recently had their worlds turned upside-down when their publisher, Permuted Press, suddenly “changed the game.” Well, yeah, Permuted suddenly decided they would only publish dead-tree versions in specific cases. Which, actually, is their decision. It’s a business decision and I understand why they did it. Sort of. But the bottom line is that these authors are now extremely butthurt and whining like little kids all over facebook, twitter, and etc. Not to mention their flamey blogs.
I feel for them. I actually do. But here’s the thing: THEY SIGNED THE FUCKING CONTRACT WHICH PROMISED ABSOLUTELY NOT A GODDAMNED THING. Was the contract unethical? Fuck yes. Was it illegal? Nope. Was it in bad faith? Absolutely. But they signed it. They made the biggest mistake of all time: they trusted.
Publishing companies are bought and sold. If the new owners decide to change the way they do business, their writers are still bound by the contracts. Existing writers that are making the company good money will more than likely be grandfathered/mothered in and their original contracts respected. To the word. If they’re the ones making the money for the company, then the publisher is unlikely to hurt those sacred cows. The n00bs on the other hand?
Yeah. That’s the issue, folks. There are quite a few indie or self-published authors looking to crack into the “traditional” side of the biz. Earlier in this ridiculously Dickensian essay, I stated why and my own reasons for doing so. If you thought Publish America and Xlibris were predatory shitbags, trust me, there are a lot of so-called reputable publishers whose practices are just as unethical and scheezy.
I’m angry about people getting screwed. I’m angry at Hachette and Amazon for not being able to get their shit together. I’m livid that some authors, probably some very very good ones, are now locked into contracts from which their work will never escape. I’m extremely disappointed in some of my literary heroes for their work in propping up and defending shitbag business practices rather than trying to reform the companies that represent them. But most of all? I’m pissed off at the constant pewling of authors that didn’t do their research, didn’t ask their peers for contract advice, and ran merrily into the maelstrom.
What I’m happy about? I found a partner. A small press that’s interested in my career and both of us making money out of the deal. My first novel as a hybrid author, The Black, has performed better than anything I’ve ever written. And the podcast and promotional crazy has yet to start. Why? Because my partner did a damned good job of cover design, layout, marketing placement, and etc.
I doubt I’ll ever walk into a bookstore and see my name on the shelves. That’s very unlikely to happen. But that’s okay. I’m WAY past that particular fantasy. Instead I want to focus on writing another book that brings me one step-closer to writing as my sole career. But I can only do that, and you can only do that, if you’re smart enough to read the fine print and negotiate and never give anything away for free.
Here endeth the sermon.