STATUS: The last 70 degree day. Okay, I'll admit it. I popped out early to play a round of really bad golf. The weather was beautiful. The company sparkling. Kristin shanked every shot into trees. Ah yes, I'm THAT horrible beginner on the golf course that you never ever want to play behind of.
What’s playing on the XM or iPod right now? THRILLER by Michael Jackson (I mean, duh, what else could possibly be playing on the iPod tonight.)
What's scarier than Halloween? Writers signing publishing contracts not fully understanding what they are signing.
I figured I'd devote this entry to scary clauses in contracts that actual writers have signed.
1. The option clause into perpetuity.
Such a monster! I've seen this in too many small publishing house contracts to count. Any decent option clause will allow the publisher a look at the next project (usually narrowed down to specific type and genre) and that's it. Unsuspecting writers have signed contracts where they literally have to show a publisher every work they do--even if the publisher doesn't want it. The clause obligates them to then show their next project, and then the next project and so on.
I think any writer can get out of this (and the court will rule in the author's favor) but probably not without some substantial cost and a good lawyer.
2. Low royalties based on net.
Don't get me wrong, having royalties based on net isn't necessarily egregious. It is when the publisher tries to pass off royalties based on net to be equivalent to royalties based on retail price. In other words, they offer they same as "standard" such as 10% to 5000 copies, 12.5% on next 5000, and 15% thereafter but it's based on net receipts.
Sounds good until you calculate the math. 10% of net equals about 5% of retail price. Not exactly the same thing so do your monster math.
3. Warranties and Indemnities clauses where the author is on the hook for all the costs.
The author should only be fully responsible if they are found guilty and in breach of this clause. I've seen clauses where authors are on the hook for the full cost of even an alleged breach and yet they have no say in the proceedings. Oi! Even Frankenstein got a better deal.
4. Joint accounting.
Publishers love joint accounting. That means they link the monies of multiple books together. In short, an author doesn't see a penny of royalties until ALL books in the contract earn out and only then are royalties paid. You might be waiting years and years to kill that zombie.
5. Unmodified competing works clauses.
If you aren't really really careful, you might be legally obligated to not pursue any other writing work until the books in your contract are out of print and the rights revert back to you.
This is definitely worst case scenario but depending on the language in the contract, you might have backed yourself into this corner. Talk about hamstringing your career as a writer.
For me, in this digital age, the above are way scarier than anything that might go bump in the night.
I quickly left this area after taking this picture - far too many warnings for me! What were they doing here that needed this strange assortment of warnings? Why were these signs posted low behind a parked motorcycle on a busy Beijing street? What is Ovntilating and a Daop Down, and why are they dangerous? Such a mystery.
Apparently this is what happens when a small branch falls on a power line.
Interesting information about coffee and caffeine
Infographic: income levels of America’s major religious groups
This was surely an expensive Inception wedding reception.
The new FDA anti-smoking warnings are graphic.
Lego my car.
This woman is reading the entire Patient Protection and Affordable Care Act–ALOUD.
This is Betty White holding a giant snake with Slash.
How McDonalds cuts 9 million pounds of fries a day
First film footage of the “new” Amazon tribe.
A question from a blog reader asked, “Would you consider using a newly formed publishing company? What questions should a writer ask a new publisher to ensure they are getting appropriate care for their book?”
I’ve had one experience with a newly formed publisher–which I’ll write about below–but first let me mention a blog post on this subject on Writer Beware! The post is two years old, and due to the economy, it is even MORE true today than it was when posted. I hope you’ll read the entire post, but this is the bottom line summary:
“So unless you are absolutely, 100% positive that the publisher is staffed by people with substantial publishing experience–and maybe even then–it’s a good idea to wait until a new publisher has been in business for at least a year, and has published a number of books, before submitting. Not only does this assure you that the publisher can take books all the way through the production process, it lets you evaluate important things like physical and editorial quality, how the books are distributed, and how they are marketed. It also allows time for complaints, if there are any, to accumulate.
Tempting as it may be to join the rush to get in on the ground floor when a new publisher opens its doors, watching and waiting is a much better strategy.”
My Own Experience
My first mystery series fifteen years ago was my only experience with a brand new publisher. The man who started it had great credentials, and we met when speaking on a panel at a writer’s conference. It was professional from beginning to end, although his advance was a lot smaller than I was used to.
The first two books came out on time, but the sales were pretty low. (Thankfully I had had several mysteries published by that time because the “editor” I got knew nothing about mysteries and was an unpublished aspiring writer.) The third mystery ran into one snag after another, but since that happens sometimes, I wasn’t worried. I knew he was working on other books too and accepted the explanations for delays.
One Eye-Opening Day
I had several school visits approaching and needed copies of the third book, so when I had to be in his city for something else, I decided to just stop by the publishing house and pick up the books, as he’d said they were finished and boxed up.
When I finally located the address, I felt surely it must be wrong. It wasn’t in the business area of town–it was a residence. His home. No one answered the door, so I walked around the back and peeked in the window of the basement.
There were stacks of books and piles of papers everywhere. Evidently this was the publishing “house.” Literally! And it turned out that this man was the entire “staff” and he was out of money. Any books sold would be up to me. (This was prior Internet marketing, so I was stuck with the books and no way other than school visits to sell them.)
Needless to say, I wished I had asked a lot more questions early in the process. The books weren’t reviewed and fell through the cracks.
(Reminder:
STATUS: Done for the night.
What’s playing on the iPod right now? SUPER BAD by James Brown
This blog entry is for you Ann & Victoria. You two are super bad in the best possible way.
I think there are very few people in the world who are willing to take the time and energy to stand up for the rights of unsuspecting newbie writers who get scammed by unscrupulous people who call themselves “agents.”
Ann & Victoria have devoted countless hours to the cause. They have blogged about it. They have chatted on various writers forums to warn new writers of scams and to educate them on what they should look for. They have publically denounced scammers. And they’ve been willing to be sued. Yep, you read that right. They always say bring it on! Regardless of how many hours it will probably eat into their private lives.
That’s sacrifice and they deserve some major kudos!
And it makes me so happy to read about how the latest attempt to intimidate them with a retaliatory lawsuit has failed. The scammer failed to respond to discovery or otherwise prosecute the lawsuit. In other words, the criminal didn’t bother to show up.
How sweet it is! Now this “agent” is being investigated for fraud by the Florida Attorney General’s office.
And the good news continues! This just in from the Writer Beware Blog site. Because of their unrelenting hard work, The Federal Bureau of Investigation has decided to create a special task force to help agents in their field offices recognize and deal with writing scams.
Oh yeah. That’s super bad! Alas, if only it were true...
Still, the lawsuit was real enough. To salute the Writer Beware team, let me ask you this. What have you done recently to help spread the word about scammers? Have you blogged about it? Provided links from your website or blog to Writer Beware and Preditors and Editors?
Have you helped to educate a new writer on a writers’ forum or at a conference lately?
Be part of the solution. Blog, twitter, facebook and make those links live today. Let’s get the word out that scammer “literary agents” who charge fees will not be tolerated.
Monies flow to the author, not away.
STATUS: Another late night trying to catch up on client and slush pile reading.
What’s playing on the iPod right now? ONCE IN A LIFETIME by Talking Heads
Just as authors are often obsessive about their Amazon numbers (and don’t get me started on Bookscan), some authors are pretty attached to their Google alerts about their books. Folks might think it narcissistic but in reality, Google alerts can be quite a handy tool.
Here are just some reasons why a published author might want to keep the alerts handy.
1. Alerts are a great way of discovering new reviews that have been posted about your book. Editors are good about forwarding them but heck, everyone is busy and things slip through. One author discovered that her young adult book was a Cosmo Girl pick for best beach read. Not even her editor knew. It was a complete surprise but there it was.
2. Google alerts can catch electronic book piracy (which is rampant let me tell you). Most of our authors have been a victim of this at least once and sure enough, the discovery often comes through a Google alert that then hits the chat loops and wings its way back to us. Publishers do go after the sites but often it’s just a matter of time (sometimes only days) before some other piracy site rears its ugly head.
3. Alerts can keep you apprised of any book buzz that might be going on. Bloggers suddenly talking about the book, etc.
4. Alerts can warn an author if a right is being exploited illegally. For example, when Amazon bought Booksurge there was a kerfuffle when this POD entity was offering books available for sale that they no longer held the rights to. Uh, that’s more than an oops. If an author has held audio or electronic rights and then suddenly one of these copies are available and the author hasn’t sold the right, well a Google alert might just be the first time the author “hears” about it.
I imagine there are many other great uses (or misuses for this tool) so feel free to share.
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Thank God my small press contract didn't have any of this in here. But having some of these explained is really helpful!
Skip things that go bump in the night. This contract and the legalese that accompanies it sounds downright frightening.
EEEK! Scary indeed. And I can see someone like me...who will be so excited to even have a contract...not pay attention to these details. Thanks for heads up.
Thank you. Thank you. Thank you.
This scary post was worth the price of admission. Oh yeah, you don't charge.
Did I say thanks.
Good post.
But one thing to consider is that small presses, especially e-presses nowadays who are facing heavy competition, are so intent on maintaining their "image" they usually bend and sway to the author's needs...in most cases, not all. In other words, the slightest scandal on the interwebs can, and sometimes does, cost them huge sales, which isn't something they are willing to risk.
Authors without agents have to know how to play the game and work everything to their own advantage. And when it comes to "image" these days, everyone is concerned about what's put out there in public. Once the image is tarnished even slightly, small presses lose readership and potential authors who might have submitted to them.
The scariest thing I've seen in publishing are the cyberbullying and stalking web sites and blogs that claim to help writers but just create problems for the industry and act extremely anti-social, calling their competitors a scam in order to survive rather than earn their way up the ladder by merit. They have no accountability and claim "lack of jurisdiction" when they tell a lie about someone on the internet and ruin someone else's reputation. They are cowards like Miss Snark who never was or will be a real live literary agent. Terry P.
When I read something like this, I wonder why anyone would EVER attempt getting published without an agent.
Karen Peterson--
I totally agree! I don't know any legal jargon, how in the world would I be able to tell if I'm getting screwed over??? I think getting an awesome agent is the best thing to do.
The agent *will* know to tell the publishers to revise if they see these things right?
It's my opinion that most of those "ruined" agents or other individuals in the publishing industry generally caused the damage to their reputations in the first place. What they don't like is being held accountable or outed to writers who might need genuine srvices.
Mr. Kuzminski, you have already been proven guilty of defamation in the Virginia courts by an attorney and a judge. So are the cowardly Miss Snark and people like Writer Beware who have posted to her blog and then do not wish to be held accountable claiming "lack of jurisdiction." What a copout. They should be telling the truth in the first place. I am sick of listening to
hypocrites who claim to have manners but are really vigilantes and social misfits
And they're at it again. Folks, please see Victoria's (Writer Beware's) post on The Write Agenda, and decide what should scare you here.
The Write Agenda and Writer Beware
Kristin, thanks so much for the contracts post. Unfortunately, I've heard of real horror stories where noncompete clauses were concerned, and the same with options. Your words of warning are appreciated.
Yikes. I've been reading agent blogs for a few years and thought I had heard of most of the big clauses to avoid, but these ones are new to me and quite scary. Agreeing with Karen Peterson and questioning why anyone would accept a contract without an agent or at least someone very versed in legal matters looking over it.
@Anonymous 3:22
So quit listening, or go create your own blog to combat them (or at least own up to any you already have) rather than leaving anonymous comments that don't give anyone any perspective of your authority on the manner.
"What they don't like is being held accountable or outed to writers who might need genuine srvices."
There is a lot of bad advice going around these days, from so-called reputable agents. This bad advice is mainly with respect to e-publishing, something most agents don't want to even think about now...unless it involves them cashing in on it. So why aren't these folks being called to task as well on the so-called writer beware blogs? I'm all for exposing the creeps, but expose them all and stop playing politics with the ones you like because it fits a specific agenda...or goes against a model no one wants to challenge. Get a pair.
Kristen, since you've written this(thank you, by the way)I'm curious as to your thoughts on the situation with L.J.Smith, the author of the vampire diaries. a friend recently told me that L.J. Smith is no longer allowed to write another Vampire diaries book and any new ones will be ghostwritten by others without her input. How could something like that happen? How did she lose the rights to her characters and books?
Anonymous @ 9:54pm
I can answer this. Smith never owned the rights to the books in the first place. She was hired on by the publisher in order to write those specific stories. Her contracts stated that everything--characters, the whole package--belong to the publisher.
From what I've heard (take this with a grain of salt), the publisher didn't like the direction she was taking with the books, therefore decided to hire someone else to continue the series.
Nothing cowardly about Miss Snark (who has been put to rest). Funny, smart and meant to teach and entertain. You obviously missed the joke, darlin'.
Thanks for the helpful post, Kristin. Apart from having a good agent and/or hiring a suitable lawyer to look over contracts, is there any other way authors can protect themselves from these nightmare clauses?
P.S Miss Snark rulz, ok?
LOL... these WriteAgenda people are really poor writers!
Great advice, Kristin...
Most ebook authors can't get agents (or don't need them yet) and they sign contracts that they don't understand. I recently had a offer on a novel, and after trying to make heads or tails out of it, I ended up asking questions on writer loops. I got some great advice and ended up red-lining through the contract. They didn't like my terms and we parted ways. I'm really happy I didn't sign, and now that same book sold to another ePub. This ePub had a simple contract, two pages long, and words even I could understand and live with.
Don't sign if you are not sure. Do your homework. Even better, talk to the pubs authors and see if they are happy.
Thank you thank you thank you for the education. :)
Incredibly helpful - thank you for providing author holy water! (Not that all publishers are $sucking vampires but...)
Info like this re-affirms why agents are so important.
And I love that you have a "career suicide" tag.