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.
STATUS: It’s Thursday already?
What’s playing on the XM or iPod right now? ARTHUR'S THEME by Christopher Cross
About three weeks ago, the agency started receiving a series of calls from a local gentleman writer. Anita, being the lovely and generous person that she is, answered, gave information and lots of resources to help out the caller.
Evidently that wasn’t enough because this person proceeded to call us several times a week insisting that he had to talk to me. The first couple of calls Anita answered and calmly explained why she doesn’t forward inquiry calls to me and offered help in general terms. When he became belligerent with her, she stopped answering the phone when caller ID clearly showed who it was.
Then we received lots of voicemail messages. It definitely got my attention but not in any way that’s going to help this person’s writing career.
Then he decided to visit the agency in person.
Folks, let me just say that if you come to the office and try and browbeat my assistant, you will be dealing directly with me and you won’t like it. Even though I posit myself as a nice Midwesterner, you will see the Big B—up close and personal. No one treats my assistant that way.
And I’m sure this goes without saying but at that moment, there was no way this person could have pitched his book that would have induced me to look at it.
STATUS: The dog days of August. I handled over a 100 emails and got caught up. I concluded a film deal (won’t be able to announce for a bit so sorry) and did a phone conference about a contract as just a tad bit of what I did today.
What’s playing on the iPod right now? STAY (I MISSED YOU) by Lisa Loeb
I know you’ve heard the saying that all publicity is good publicity. Well, I can certainly think of a few instances where that might not be the case and when I saw this article about an author who made the news because she shot her father in the rear end, I thought to myself that there really couldn’t be a better of example that I could offer of this.
Especially since the author describes her writing as redneck noir. Suitably apt? So maybe the lesson here is think before you shoot?
STATUS: Piping Mad!
What’s playing on the iPod right now? OMG! Somebody is practicing their horn nearby and I can hear it through the vent (maybe a tuba?) And trust me, they need the practice.
Unbelievable! Yet again, an NYT story on how a hugely lauded memoir called LOVE & CONSEQUENCES is basically a fabrication.
Funny how all the memoirs that publishers have bought and have deemed “big enough” have been nothing but fiction disguised as a memoir. The publisher, Riverhead, is now recalling the 19,000 copies that released last week.
I am steamed. Kim Reid and I worked very hard to find a home for her memoir NO PLACE SAFE. An amazing story. A beautifully written story. A completely truthful (and we can back it up with full documentation) story.
Do me a favor? Go to Amazon.com right now and buy a copy of NO PLACE SAFE that’s actually a true memoir. Buy it so these yahoos in publishing will quit paying six figures for what is essentially a work of fiction.
If I hear one more story in the news about a fabricated memoir, I’m going to spit.
Okay, rant over.
And even though John’s memoir LOOK ME IN THE EYE did extraordinarily well (and Kim and I are often in envy of his sales numbers), his story is also true.
So if you want to support truth in memoir by making a purchase, I guess you can buy a copy of his as well. (But only if you buy a copy of Kim’s—she says wickedly).
Two more miles through the woods...seven more mosquito bites...and Mystery Writer remains a mystery.
The boys were off getting haircuts this weekend, so E and I decided to take the little black nature journal on another hike. This time, we checked out Silver Lake Bog, a beautiful trail that starts with a half-mile boardwalk stroll before climbing through the woods to a bluff overlooking Silver Lake.
For a couple weeks now, we've been trying to track down the owner of a beautifully sketched and written nature journal that a student's father found by the side of a hiking trail. It chronicles seven years of Adirondack hikes and includes the names of every bird and wildflower spotted along the trails, but no name of an owner. Last week, we checked the log book at Poke-o-Moonshine mountain to see if we could figure out who hiked there on the date noted in the journal, but the log book didn't go back that far. We ran into the same problem at Silver Lake Bog this weekend. The first entry in the book is from just over a month ago.
We didn't find our Mystery Writer, but here's what we did find:
Many, many lovely bunchberry plants,
A pitcher plant (Did you know that this is a meat-eating plant? Doesn't it look alien?)
A White Admiral butterfly,
A friendly toad, and a tiny garter snake, no bigger than a Number 2 pencil, who slithered under a log before we could snap his picture.
We enjoyed some writing time up on the bluff, so close to all the things Mystery Writer loved, but no closer to knowing her name.
We'll hike again next week, but I'm afraid we'll run into the same problem -- log books that have been replaced since Mystery Writer's last visit. Where are the old ones??
This afternoon, I called DEC headquarters, where a woman told me that I should check with Chris. Chris might have them, over in Lands and Forests. She transferred me to his voice mail. He's out of the office until June 25th.
Part of me is glad. I am loving the sunshine, the warm rocks, the leaves under my feet. Besides, nothing ruins a good mystery like having it solved too soon.
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.