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Throughout history and across cultures elephants have amazed and perplexed us, acquiring a plethora of meanings and purposes as our interactions have developed. They have been feared and hunted as wild animals, attacked and killed as dangerous pests, while also laboring for humans as vehicles, engineering devices, and weapons of war. Elephants have also been exploited for the luxury commodity of ivory.
Last week, we introduced the persuasion plot hole. Over the next few weeks, we will add persuasion tools to our plot toolkit.
1. Ask for More: If Dick wants something, he can start off intentionally asking for too much so he can settle for something in the middle. This makes him seem like a reasonable kind of guy, except the part where he manipulated Jane by asking her to do something she'd never allow to get her to agree to something she mildly objected to. Children are masters of this technique.
2. Appeal to Authority: Dick may be getting nowhere in his conversation with Jane. He can play the authority card. The authority can be real or imagined. "They say" is so random. Who are they? "Authorities on the subject state..." Who are the authorities? Jane won't have time to verify them. Adding jargon and psychobabble gives his argument more power. Dick can flip this tactic and discount the authority Jane uses to support her argument. He can press her to come up with an answer as to who "they" are. He can refute the validity of the authority.
3. Assume Concession: Dick can circle around the point he is trying to make or the consensus is he trying to achieve. He can talk at cross purposes and end the conversation with, "Well, I'm glad we all agree then." Except no one really agreed, but they will doubt themselves. Did we agree? Maybe we did. If Dick pushes on in a confident manner, they may be bluffed into silence.
4. Attack the Posse: Dick can tear down Jane's objectives by attacking the basis for her assumptions. He can attack her friends, her coworkers, her group members or the social, political or religious body as a whole. He can deride her documents or the source of her information. Jane will be derailed into defending herself as apart from the group or into defending actions by the group she does not agree with. She will be sidelined into defending her source rather than her point.
5. Baffle them with Bull: If Jane seems unconvinced, Dick can bring in random and completely unrelated evidence to bolster his argument. Jane will be forced to respond to each unrelated thread, rather than arguing the main point. He can sum up his argument as if everything he just said supported it. Jane will either be confused enough to give in or will call him on it.
6. Bait and Switch: Dick wants to achieve C. He argues the merits of A. Jane fights back with B. Dick offers C as a compromise, which was his intention all along. Dick wants Jane to agree to a vacation at a golf resort. He starts off with suggesting they go fishing. Jane says, uh, no. She suggests they go to a bed and breakfast in Amish country. Dick says, uh, no. Dick suggests a spa resort in Arizona. Jane agrees to the compromise. Dick had already planned to meet up with his buddies in Arizona so it's a darn good thing Jane agreed. He doesn't tell her about that until they are on the plane or happens to run into his buddies at the hotel, setting up a new conflict.
7. Call Their Bluff: Characters all make blanket statements and threaten things they'd never back up. Dick has a date with Jane for dinner. He needs to get out of it. He suggests Hooters. She reacts negatively and says she'd rather eat at a motorcycle dive bar. Since the motorcycle dive bar is exactly where Dick needs to meet his contact, he calls her bluff. Jane is forced to either go with him or refuse to go with him, which suits him just fine. The date is called off. Next time, Dick needs to make a reservation at her favorite five-star restaurant to make up for it. Jane may bravely state that she is willing to do something against her better judgment to exaggerate a point. Dick agrees to do it. Jane has a problem. She has to wriggle out of it, change her tactics, or end or derail the conversation entirely.
8. Change the Name: Changing the name of a thing can render it less objectionable because it changes the set of objections that accompany it. Dick asks Jane to steal something. She objects, naturally. So he convinces her it isn't really stealing. It's borrowing. Or it's returning something to its rightful owner. Fanaticism can be religious freedom. Anarchists become freedom fighters. This is used rampantly in terms of political correctness and to justify what would otherwise be considered psychopathic behavior. Jane is likely to object to some things more than others. This also works if Jane refuses to grant Dick any ground and he switches to getting her to disagree with his point's polar opposite. It might confuse her into agreeing with him.
Next week, we continue to add persuasion tools to our writing kit.
For these and other fiction tools, you can pick up a copy of the Story Building Blocks: Crafting Believable Conflict in paperback or E-book.
0 Comments on Persuasion Tactics Part 1 as of 4/3/2015 10:45:00 AM
CNN National Security Analyst Peter Bergen visited the Carnegie Council in New York City late last year to discuss Talibanistan, a collection he recently edited for Oxford University Press. Bergen, who produced the first television interview with Osama bin Laden in 1997, discussed the positive changes in Afghanistan over the past ten years: “Afghans have a sense that what is happening now is better than a lot of things they’ve lived through…”
Bergen was joined at the event by Anand Gopal, who wrote the first chapter in Talibanistan. Gopal recounts the story of Hajji Burget Khan, a leader in Kandahar who encouraged his fellow Afghans to support the Americans after the fall of the Taliban. But after US forces received bad intelligence, perceiving Hajji Burget Khan as a threat, he was killed in May 2002, which had a disastrous effect in the area, leading many to join the insurgency.
Peter Bergen is the director of the National Securities Studies Program at the New America Foundation, and is National Security Analyst at CNN. He is the author of Manhunt, The Longest War and The Osama Bin Laden I Know. Anand Gopal is a fellow at the New America Foundation and a journalist who has reported for the Wall Street Journal, the Christian Science Monitor, and other outlets on Afghanistan. Talibanistan: Negotiating the Borders Between Terror, Politics, and Religion was edited by Peter Bergen and Katherine Tiedemann and includes contributions from Anand Gopal.
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STATUS: It gently snowed all day—which made Anita and I feel quite cozy here at the office.
What’s playing on the XM or iPod right now? BLUE SKIES by Tom Waits
In the new Macmillan contract is clause 6. (b) Copyright on Derivative Works. To state bluntly, this clause gives the Publisher the right to create “derivative works” based on the work they are buying from the author. And to add insult to injury, the publisher owns the copyright to any of these “new works.”
Eyebrow raise.
Yes, it is as bad as what you are thinking it means.
First, this is actually in direct contradiction to US copyright law and can’t be legally enforce but hey, what do I know.
Second, no way an author can sign a contract without amending or deleting this clause although I know some poor soul is going it alone and will end up doing just that.
For goodness sake, at the very least, get in touch with the Authors Guild before doing anything so detrimental to your intellectual property rights.
Gently snowing, how cool is that, I just got out from under 2 feet. And this contract clause sounds almost as scary, it sounds like Macmillan is saying "give me your hard work and I can do anything I please with it." - Please say I'm wrong.
I hope it's not enforcable and that even authors desperate to be published don't accept it as is.
Hmm. Perhaps this was the other shoe dropping? They made the contract longer and more complicated to conceal their shenanigans?
For what it's worth, I've heard that you can actually sell the rights to make derivative works, same as normal rights. So it's not illegal -- it's just a sleazeball maneuver.
Also, giving them the benefit of the doubt: maybe legal was ordered to extend their contract boilerplate to cover e-book versions, and the intern who got the job of re-writing it used some fancy legal language without knowing what it meant?
Not that it matters. Whether their amoral or incompetent, the reasonable response is the same: send it back to them with a note saying "Um, WTF?"
Blowing the whistle on your blog is unnecessary, but much appreciated regardless.
Anonymous said, on 2/3/2011 5:38:00 PM
Kristin, can agent negotiate that clause out of the contract for his/her client?
There is good faith and bad faith. In good faith, you would draft a boilerplate that is to your favor, but within the bounds of generally accepted rights. This one is bad faith. Trying to slide one by the author (and agent). As you say, it contradicts copyright law and all that is fair. But if the victim who agrees to it doesn't know that, what difference will it make?
Wow, there are so many "little" things in the contracts that I wouldn't have a clue about if I went it alone. They'd turn in to big huge "things" as soon as I signed my life away. As always, thanks for the info!
Is this common? I'm appalled. We're talking about a pretty big publisher. Does this make you not want to deal with them, and do you have other options for your clients? Thanks for informing us.
Anonymous said, on 2/3/2011 8:29:00 PM
"Derivative works" is defined in 6(b) as "any derivative works based on the Work that this Agreement authorizes the Publisher to create or to authorize others to create."
The boilerplate in section 4 includes pretty much every kind of subsidiary right, and these can be negotiated individually and included in the grant of rights or reserved by the author.
My reading of the contract is that 6(b) gives the Publisher the copyright for derivative works authorized under section 4 (such as an audio recording or a graphic-novel adaptation), but does not give them any additional rights to create derivative works that aren't expressly authorized in the author's contract.
I believe "derivative works", in terms of copyright law, is commonly understood to mean sequels, spin-offs, adaptations, and so forth. Stuff that you don't want the publisher to be able to sanction without giving the author a cut.
I'd cry 'copyright infringement' right away! Wow. As a professional photographer, I'm acutely aware of these kinds of things and for something like that to 'show' up? Boggles my mind. Wow. Wow. Wow. :( Thank you for posting!
First: this is why it's so important for content providers to read contracts, and to know what is common and uncommong in them. As Paul (above) said, this is why I would like to have an agent--to help me understand what is normal in a contract and what isn't, and to keep me from getting (pardon my American) screwed.
The objectionable part is that the publisher thinks that it should own these "derivative works," not the derivative works themselves. If it was the derivative works, you'd be outlawing, among other things, fanfiction, compendia, concordances, etc. Those things seem to simply increase excitement around a book or its universe, but never replace the actual book itself. But the way that this is written now, I could see some clever publisher claiming that it owns a fanfiction site.
Anonymous said, on 2/4/2011 7:14:00 AM
Anonymous at 6:38 pm-- not only the agent, but the writer herself, working without an agent, can negotiate it out.
I've negotiated seven contracts without an agent. You need to read them very carefully. Most things, in my experience, can be changed simply by asking. But if you don't read carefully, you won't know to ask.
Cori said, on 2/4/2011 10:28:00 AM
As an author waiting to be published, I'm not very demanding. I know I won't make much money. I know I'll work like a dog. But at the end of the day, those characters and novels are mine. I'd rather give them away for free than allow a publisher and their ghostwriters to write the series without me. If that's what that clause means, it's a "mountain worth dying on."
I flashed for a minute on James Frey. Is that his name? That guy who wrote the fictional non-fiction memoir? I have also blocked the name of his reprehensible writer-for-hire company.
US copyright law is unusual in that it explicitly covers derivative works. Title 17 of the US Code contains a definition of derivative works (in §101) that includes any form in which a work may be "recast, transformed, or adapted", including "elaborations"
Most importantly, §106(2) grants the owner of copyright the exclusive right "to prepare derivative works based upon the copyrighted work". Like the other exclusive rights enumerated in §106 (including the basic right of copyright – the right to make copies), this right can be sold to others.
Now, I may be missing something here, but as far as I know it is completely legal to assign the right to create derivative works. Indeed, I believe that in some fields (such as photography, particularly for corporate clients) it's actually fairly common.
This isn't meant to suggest that Macmillan shouldn't be putting this clause in their contract. I'm just pointing out that assigning the right to create derivative works isn't some sketchy legal trick – it's a perfectly legitimate right that you own and Macmillan wants. Whether you give it to them is up to you (although I can't think of many authors who would surrender it).
Necessary disclaimer: I'm not a lawyer yet (and I'm Canadian, to boot!), so don't rely on this like it's real legal advice – you could get into trouble.
OK, there seems to be some dissension in the comments over whether the publisher can legally ask for these rights, but even if they can, it seems to be a bad faith move and deprives the author and creator from potential income. I'm sure most authors would like to see this clause removed!
Off topic, royalty loss on e-books from the Authors Guild:
“The Help,” by Kathryn Stockett Author’s Standard Royalty: $3.75 hardcover; $2.28 e-book. Author’s E-Loss = -39% Publisher’s Margin: $4.75 hardcover; $6.32 e-book. Publisher’s E-Gain = +33%
“Hell’s Corner,” by David Baldacci Author's Standard Royalty: $4.20 hardcover; $2.63 e-book. Author’s E-Loss = -37% Publisher’s Margin: $5.80 hardcover; $7.37 e-book. Publisher’s E-Gain = +27%
“Unbroken,” by Laura Hillenbrand Author’s Standard Royalty: $4.05 hardcover; $3.38 e-book. Author’s E-Loss = -17% Publisher’s Margin: $5.45 hardcover; $9.62 e-book. Publisher’s E-Gain = +77%
Full article: http://www.authorsguild.org/advocacy/articles/e-book-royalty-math-the-big.html
Anonymous said, on 2/5/2011 2:08:00 AM
I find this quite scary, actually, and possibly somewhat underhanded. Macmillan's New Writer department receives tons of novel submissions, daily, from new and unpublished writers--most of them without representation, and with no knowledge of the industry or their rights. I'd imagine there will be an awful lot who could sign without understanding the contract, and it appears as nothing more than them taking advantage of that. :(
Frightening news about that publisher, but not unexpected. More and more of them are willing to take advantage of writers in these uncertain times, while the entire profession is in flux.
I am calling upon writers and readers alike to please boycott Macmillan Publishing until they remove the onerous clause from their contract which grants them the right to create "derivative works" based on the work they are buying from the author.
Please Tweet, blog and post on FB about this. This insane attack on writers while the entire industry is in flux has got to stop. It is time we empower ourselves and fight back. It is time we demand to be treated with dignity.
Please, help spread the word about this boycott.
We must fight back in our own self interest. No one else is going to do it for us.
STATUS: We've got the heat cranking. Poor Sara in the loft needs a fan!
What’s playing on the XM or iPod right now? TALKIN’ BOUT A REVOLUTION by Tracy Chapman
Quite frankly, I think this entry’s title sums up the day.
Here I am with Chutney about to brave the 15-minute walk to the office with a wind chill of -20.
Is that a Dog in your pocket or are you just happy to see me? *grin*
New York is going to get hit tomorrow so we are anticipating two nicely quiet days where the phone doesn’t ring. I’ve been averaging about 3 hours a day on the phone for the last week.
Plenty of time to tackle the Macmillan contract again. With luck, I’ll make it to page 20 this afternoon! The words “electronic media” are making me nervous.
I am also enjoying the weather in Denver, Had I not left my Headlights on and killed my battery I would have been enjoying it from the inside of a warm car. However freezing under the hood was apparently my destiny.
Just think. It's supposed to hit 45 degrees on Thursday. But I'd take Saturday's 60s any day. Hope you both stayed warm on the way to work. Good luck with the contract.
What a cute picture! We're sitting at a cozy 16 degrees in Detroit with 10 inches of snow on the way. Maybe I should break out the bikini! Love that Tracy Chapman CD by the way, good choice of music!
Anonymous said, on 2/1/2011 7:41:00 PM
My sister lives in Lakewood, so when you report your weather I know she's getting at least some of the same. Best wishes and WARMTH to you both there in beautiful, frigid Colorado (and to Sara, too!)
It's only -10 here in Minnesota, but the windchill is in the -20 range. I have to buy live crickets today (the lizard won't eat them if they're dead) and they die in the cold temperatures, so later I'll have a bag of bugs under my coat. I envy you your dog!
I've been in Miami all month so I'm not looking forward to going back home to all that ice, snow, and cold in the north east, especially since I'll be driving.
Wow, and I was bare-shouldered in the sun enough today to get a sunburn. I wouldn't know how to deal with anything below 40.
Anonymous said, on 2/2/2011 4:02:00 PM
That picture is really weird with the dog coming out of your groin, or is it supposed to be one of the dogs at Writer Beware? Are you looking to agent doggie style or something? And who would want an agent with a dog handgin out in her private parts? Keeping them warm???
Anonymous said, on 2/2/2011 4:07:00 PM
THis is wnat the narcissistic Miss Snark scamm agent looks like
Status: The high tomorrow is going to be 3 degrees. Oh Joy. And Chutney will still not thank me when I make her wear her fido fleece.
What’s Playing on the XM or iPod right now? HEROES by David Bowie
I think this is definitely more of a whine than a rant. I’m finally negotiating the new Macmillan boilerplate because just recently I sold a novel to that publishing house. And yes, I know that they implemented that new boilerplate many moons ago. Even though I reviewed it at that time (to see what I was in for) it’s not relevant until the first negotiation happens at that house. Although many of our boilerplate items were transferred into the new Macmillan contract, so much of the language has changed (or new clauses created), it might as well be brand new.
So to be generous, I reserved 4 hours to give it a solid read and to write up my requested changes letter. After 2.5 hours of diligent labor, I had only hit page 11 of the 28 page contract.
Wow... They gave out a high for tomorrow? Here the weather talk on the radio mentioned about 20-25 below and the person giving the report just said there wasn't a high.
Sounds like a rough contract, or intense at least. Good luck making it through.
Status: Freakish. It’s going to be 60 degrees tomorrow in Denver. Uh, winter, what is that?
What’s Playing on the XM or iPod right now? ALWAYS ON MY MIND by Willie Nelson
In the last 6 months, there has been a radical shift in the amount of time it will take to complete a publishing contract. At first, I chalked it up to the new contract boilerplates publishing houses are feeling the need to implement. Any time an agent has to pretty much negotiate from scratch, it’s going to take a lot more time to establish a new agency boilerplate that is fair and reasonable for the author.
But that’s not always the case. For example, for one recent deal, it took (literally) three months to get the first draft of the contract—and the publisher had not changed the boilerplate. Having recently done 4 or 5 contracts with this house, I rather assumed this latest one was going to be a quick process. It took 6 months before the author signed the final contract.
And it’s not like I’m snoozing at my desk. This is after repeated calls, emails, follow up, and constant nagging on my part to prod the process along.
Agent job description: Nag.
Trust me, I didn’t know that was part of the job qualifications when I got into this biz.
For another contract from a publishing house that has always been very prompt in the past, I was stunned to have to wait 4 weeks between responses. (By the way, I responded within 3 days from any communication from the publisher; it was not languishing on my desk.)
It’s enough to make you wonder if it’s me! So I started bringing it up in conversations with other agents I chat with. Lo and behold, they had the same complaint!
So I don’t know what’s up. Are the contracts departments besieged? Understaffed? Combination of of things? Is this the great contract delay conspiracy? If you’ve recently sold a novel, get ready to hurry up and wait in order to sign on the dotted line.
Yikes. I hope the problem doesn't become a usual thing, and gets fixed real soon. I can't imagine waiting that long. It makes my stomach twist in knots just thinking about it!
Your post has reassured me - I'm waiting to hear back from a publisher about a future project and it feels very slow. And there I was thinking it was only me being impatient, as usual.
It may be lack of resource (from cutbacks -- over-shrinkage). Wouldn't be surprised if it's also more caution being placed on deal-making. More second-guessing.
My guess is there are just fewer people doing the job, so it is slower for everyone. You can't really have the cheap labor (undergrad interns) doing it, so it is slowing down.
I laughed so hard at "Agent job description: nag."
Now I will spend all day wondering what the single word job description along the same lines for a writer would be.
As for the Great Contract Conspiracy, my overabundant imagination is very quick to give you several Dan Brown-esqe scenarios:
*There is a tiny rip in the time-space continuum, the Bermuda Triangle of Publishing. The publishing companies send the contracts out, but they fall into the past and have amazing untold adventures before reaching their final destination of your desk.
The next time you open a contract via email or snail mail, sniff it. Perhaps the scent of it's journeys into the past still lingers...
*Birds. Birds are secretly stealing paper all over the world for their nests. But birds, being animals of wisdom, love books, so when they discover that they have pilfered a publishing contract, they fly off to give it to the rightful owner. Sometimes on these journeys, birds will bestow their wisdom upon a select few by pooping on their car, or if the individual is very lucky, their head.
*The setting is Prague. An ancient evil threatens to awaken from it's slumber after eons of rest. A rag tag group of heroes have discovered the monster's one weakness: impatience. Acting quickly, they infiltrate the publishing industry, disguised as editors, interns, and yes, even CEOs. They drag out the process of publication for as long as they possibly can, in hopes of keeping the monster at bay.
So the next time you find yourself ready to rip out your hair in frustration, realize that you are doing your part in the fight against evil.
*Or you know, it could be like other people have suggested and it’s just that publishing companies are understaffed and overworked. Frankly, that seems a little far fetched though.
Anonymous said, on 1/28/2011 7:58:00 AM
It has been nine months since my book deal and I have yet to see a contract. (And this is with constant emails and phonecalls to the publisher from my agent.) It's good to know I'm not alone.
It's weird to see how much the world is changing, and in little but obvious ways. I work for a live Audio/Video company, and it's turning into the same thing with us. Sometimes I have to nag clients once every half hour to get them to give us information or equipment that we need.
It didn't used to be that way, but so many of us are understaffed these days. I wonder if that's what's going on at the publishing houses. Are there fewer people in the contracts department?
Anonymous said, on 1/28/2011 10:55:00 AM
@Elizabeth Poole
Either "liar" or "storyteller." Take your pick.
Anonymous said, on 1/28/2011 10:55:00 AM
Thank you so much for posting this. I feel vindicated now! Even worse, I'm unagented so I have no idea if I have any right to nag or not.
Now we know who the publishers have let go, people in aquisitions and contracts!I can't see how it helps the publishing industry to make themselves worse to deal with. We live in exciting times and I guess this is the price.
Constance said, on 1/28/2011 12:59:00 PM
Elizabeth Poole, I laughed. And laughed some more. And laughed even harder after reading the last paragraph(especially the last sentence). Thanks for that. Sincerely, Constance
Waited four months to sign one of my contracts, and was complaining about it. Now I know it was apparently a "rush" job. Thanks for letting us know that we are not alone in this.
Hello Agent Kristin! :) I couldn't find anyplace to email you! You probably didn't want to get swamped with emails! lol I just wanted to make sure it was ok, but I wanted to showcase your blog on mine, since you have so much info, I didn't want to just add it to my blog list! :) I hope you don't mind but you can check it out at Tea & Ink, www.teaandink.blogspot.com and email me with any objections you may have! lol
I had no idea it would take so long to negotiate a contract once the decision was made to offer the contract. Let us know if you figure out why it's happening.
*nods* Yep, same happened to me. It was 5 months before i finally had the publishing contract to sign after my agent went back & forth with the publisher. Yeah, they held onto it for a long time, then there were changes, then there was more holding on to it, rinse & repeat.
Now we're waiting for the advance check... *taps foot*
I agree, I feel the advance check is going to take just as much time. It will be like waiting for your first social security disability check. By the time you receive it, you will qualify for retirement benefits instead.
Does this mean there will be a boom in Tylenol and Advil sales?
"Tylenol, when you need relief from all your publisher aches and pains." I like it.
Thank you for the heads up and all the great info!
Angela http://sheerglow.blogspot.com/
Anonymous said, on 1/28/2011 9:24:00 PM
More uncertainty in the pub houses I would guess -- and it's only going to get worse.
I can't see why any author with reasonable net skills would NOT try self ebook publishing and promotion at this time.
Could it have something to do with delaying payments on a portion of the advance?
In my admittedly very limited experience, large companies consider it a terrible thing to spend money today if there is any method available to delay the spending until tomorrow.
Or maybe I'm just a cynic venturing into conspiracy country.
STATUS: A nice and productive day. I think I want summer hours though. Leave by 1. Play in the sunshine. I know Chutney is all for it.
What’s playing on the XM or iPod right now? DO YOU SLEEP by Lisa Loeb
Today let’s tackle the single book contract. What are the advantages and disadvantages to doing just a one-book deal? Considering what we discussed yesterday, it seems ludicrous to sell just one book!
Well, not really. Most one-book deals are for literary fiction and occasionally for what we would call the “big” commercial literary fiction. Commercial literary fiction is really just literary fiction that has a commercial hook or slant. For example, WATER FOR ELEPHANTS is a good example of commercial literary. Or TIME TRAVELER’S WIFE. Or HOTEL ON THE CORNER OF BITTER AND SWEET.
Does this make sense?
And there are lots of reasons to do a one-book deal.
1. Literary fiction takes longer to write. Sometimes it’s not feasible to write a second book on a prescribed deadline so authors will contract one book at a time. Wally Lamb (SHE COMES UNDONE) is kind of known for never selling a book until it’s written and then he sells that one book only.
2. A one-book contract can alleviate the pressure on the author. The sophomore effort can be a tricky thing. I know from experience that every author hits a stumbling block with that second novel and it really doesn’t matter the genre you write in.
3. Literary fiction—especially those that lean commercial—often get undersold initially and then break out big later. If there is a sense that that could happen, why lock the author in for a certain amount of money?
4. The author might not have a second novel to propose and he/she just doesn’t want to throw ideas at the wall and see what sticks. And the author might take 10 years to write next literary novel. It happens.
5. If the author’s editor leaves and there is just a one-book contract, it can make it cleaner for the author to follow his/her editor to a new house. One’s editor tends to be really important in literary fiction. There is a certain trust that can be very beneficial to the literary writer.
Now having mentioned these things, you can kind of see the flipside to the argument.
1. A two-book contract might be preferred if there is a lot of hype and a book sells for a lot of money and then doesn’t perform. How nice would it be to have a commitment to two books already lined up if that’s the case? A chance of redemption or getting those numbers back up.
2. A Publisher may delay acquisition of a future book until they have sales figures for the first book. Since books easily take 18 months to publish, it’s a long time to wait to get a new contract—especially if the author is trying to earn a living here.
28 Comments on The One-Book Deal, last added: 6/25/2010
I had the same question. I thought of Dan Brown and how he had more success with THE DA VINCI CODE than he did with ANGELS AND DEMONS, which he'd written first. Just one example, but it'd be great to have the "stumbling blocks" clarified. :)
Are several "stand alone" novels ever sold as a multiple book contract? I understand selling a series in a multiple book contract, but there are a lot of non-literary books that stand alone. I am currently querying a contemperary YA novel and writing a second. The second novel doesn't have any common characters with the first and both books are meant to stand alone. Do publishers actually give multiple book deals to writers like me? I always assumed I'd be selling each book individully.
Aww, does that mean no more Jamie Ford? Or is he off writing for ten years?
This is interesting though. I mean, all authors' nightmares consist of books not selling a dime and them never being published again. Those two-book deals don't seem too bad for those writing single novels.
But, like said, I won't worry. YA series and various other novels to share. I could never write literary or nonfiction if I was forced-fed poison...well, I could, but it'd be awful. BTW, though this would be cool for you to know - there was this contest I was enterering to win some awesome YA books, and one was "GIVE UP THE GHOST". And one of the questions to get it was "What was your favorite kiss scene in any YA book?" Not only was PERFECT CHEMISTRY mentioned (a given) but so was THE DEMON'S LEXICON! Three in one blog post! :)
Kristin--I'm a genre (fantasy) writer. My current goal is to eventually get a novel published but I already know I'm not one of those writers who can write to a deadline, and many of my fantasy projects are looking to be standalones. I don't intend to sign a mutli-book contract if I can help it at all, but I can think of only one fantasy author who isn't writng copious numbers of novels (Robin McKinley). How likely is it that I'd be able to get a one book contract, for each book as I finish it, instead of having to do a multi-book one and failing miserably?
I think I'd prefer one book deals, I'd rather have a book written and available than all the stress of writing to a deadline - that wouldn't be creatively inspiring
Gosh, you're gorgeous in that photo! Wow. Mama mia. I so love mature women. Thank God! I will see you Upstairs in the Great Beyond for my BIG-OL party for years and years celebrating our resurrection!! Very cool. Can't wait...
Can you talk a little bit more about why an editor is more important to a literary fiction author than to a genre author? Is the nature of the editor different (ie, does the editor of a literary fiction novel do something different than a genre editor)?
I've heard of various writers struggling to write a second book because now there is more pressure to be as good or better as the first book.
The first book is something you can take as long as you want to write and edit--while the second you might be under the gun to produce...or just feel a creative block, especially after you've been in the editing mode for so long.
Thanks for posting on this, Kristin. It really is comforting to know that not every agent will press a writer to take a multi-book contract if such a contract doesn't work for that writer's needs.
Personally I'd rather build my reputation one high-quality book at a time than rush out with a second or third book that just isn't ready.
I have a question for you. I've done a lot of research on the publishing market, and that includes self publishing. In a blog about self publishing (http://www.fonerbooks.com/contract.htm), I read the following statement:
Here the author grants the publisher the right to publish the work, as protected by copyright law. For most authors this means the exclusive worldwide rights, including all derivative works, etc.
I understand that it's natural for the publisher to own the right to publishing the books, but all derivative works as well? Does this mean that if I write my fantasy series and manage to sell the trilogy to a publisher, I can't ever write anything else from that world or use those unique magical characters I've created and sell it to another publisher (if the trilogy publisher doesn't want to buy it)? Or even just write short stories and publish it on my webpage or whatnot?
Very interesting post. I'm thinking maybe I'm pitching my YA novel wrong. Maybe it should be classified as literary like "Hotel on the Corner of Bitter and Sweet."
I'll have to think about that.
Anonymous said, on 6/23/2010 11:32:00 AM
Yes, I also want to know the answer to Katie's question @ 9:21 -- what about that?
Love this post, this is the crap no one else talks about!
This is great information. I'm currently writing a novel and if I manage to sell it, I already know I would lean toward a one book deal. I think the second book is such a huge undertaking and I could never write it on deadline. I firmly believe the quality would suffer and I'd hate to have a crappy sophomore novel because I had to rush the process.
My last fantasy contract was a single book contract because it was the last book in as series and we wanted a clean break between book five of the last series and the beginning of the next. Current contract is three books.
Lucy said, on 6/23/2010 1:08:00 PM
@ Tessa
I'm not up on the finer points of contract, but I would not sign anything that looked like that. For starters, agents often hold back and manage foreign rights separately. In such a case, a U.S. publisher would only get North American rights. Another point is that you should hold onto film and certain other subsidiary rights wherever possible--another thing your agent can help with.
"All derivative works" is an insane clause (unless a list of derivative works is given and has limitations). Theoretically you couldn't even publish a short story based on your novels without their permission.
This is why you need, need, NEED a good agent.
If you're going to self-publish, it makes more sense to be a true self-publisher, where you do the dealing with the printers, designers, etc., pay full costs and retain full control of your rights. Otherwise you may end by giving up more than you want for a package of services that does less than you hoped for.
That helps. Thanks so much :) And yes, self-publishing is my last resort. First is to try to get an agent. Second to get a publisher. If neither work, I'll re-write the story and try again. If that doesn't work then I might look into self-publishing.
I think the best thing to do in this situation if a writer insists on a one book deal is put in a solid option for the second book in the contract.
This will keep your options open, if they choose to write a second book, you get "First Dibs" on the deal. Throw in better terms than the first to get the author interested b/c you are only going to want to publish the second book if the first one performs anyway.
STATUS: I was “this close” to getting to everything on my TO DO list today.
What’s playing on the XM or iPod right now? MY WAY by Frank Sinatra and Willie Nelson
Last year, a fellow agent friend and I gave a workshop on doing a single-book contract versus a multi-book contract. I was a little surprised at how many writers showed up for it. Hey, maybe these would make a few good blog entries.
First Q: When is doing a single-book contract ideal and when is a multi-book contract best?
Answering this question takes into consideration a lot of different factors. Let’s start with the obvious. If you write genre fiction, it’s almost always to an author’s advantage to do a multi-book contract.
For example, if you write fantasy and the first book being sold is the first in an envisioned trilogy, well, it would be better to have the publisher commit to three books. That way the entire series has a shot of being published. It often takes several books for a series to pick up momentum. What’s important is the publisher commitment—even if in the end a series does well and it was “undersold” initially in terms of the advance.
More common case is that a series has to build over time with the subsequent books and then the books start to earn out. Besides, who wants to sell book 1 in a trilogy only to be left in a lurch if the publisher doesn’t pick up the other books? It’s not easy (read "nearly impossible) to sell books 2 & 3 to another house. If sales are sluggish, it’s really unlikely another house will pick it up.
For another genre such as romance, careers build best if an author can release books within 6 to 8 months from each other. That means really tight schedules/deadlines for the author to make that work so doing multi-book contracts make sense. It’s also best to do multi if the stories are “linked” (as in they stand alone but have characters that might have been introduced in first novel).
Is there an advantage or disadvantage for doing 2 books vs. 3 or 4? Sure. Lots of agents differ on their opinion of this so I can only speak for myself. In general for me, the number of books sold at one time depends on the author (how fast he/she can write), on the project (how many books envisioned) and whether I think the author was undervalued. What I mean by that is if the offer was initially too low for a 3 or 4 book deal or if I thought the monies should have been higher in the auction and I don’t want to lock the author in for too many books at the lower rate. Obviously, reverse is true. If the monies are good, then why not lock in for more books as the commitment is strong from the publisher.
As you can see, lots of factors at play. How does an agent know? We’ve been doing this long enough that we pretty much use our gut sense of what feels right as the offer unfolds. I’ve yet to be wrong.
I’ll talk about single-book contract tomorrow.
16 Comments on One Book or Two? Maybe Three?, last added: 6/22/2010
Stella and Erinn, what I've heard is that you should make the first book strong enough it can stand on its own, but has series potential. Then you query saying exactly that--written as a stand alone with series potential. Hope that helps!
Thanks for the post, Kristin! I think as writers we tend to look very favorably on multi-book deals, and forget that the advance money needs to be a good sum for all those books. I guess that's one more reason we need agents!
For a first time author, is it best to stay away from series all together?
The sort of series I'm referring to would be similar to The Inheritance Cycle or Lord of the Rings (an extreme example), where the story isn't complete until the end of the last book, so the first book queried couldn't be stand alone.
I ask because I'm currently working on a book which I'm not sure I can fit into the fantasy guidelines of 110k words, and is looking more and more likely to span two full length novels. Is this going to cause a problem when I get to the query process?
I was wondering if you would offer a critique of someones query letter? I wrote my first novel and showed some old army buddies. They showed their friends, and, well, they all pooled together for a line editor for me. Now that the novel is in that stage I was wondering if it was time for me to start putting together a query letter. I've got a lot of people betting on me, so I want to do them right. Would you be willing to critique a query letter in private? I don't want to give away a ending before it publishes. The first two short stories I wrote were accepted to magazines and I have two new ones I am going to send out. I'm about to undertake my second novel, but I am afraid of doing to much writing and not enough agent searching. Any help would be great.
I am reading your blog and it will be helpful when I get to the right stages.
I hope you have a wonderful day,
Draven Ames
Anonymous said, on 6/22/2010 6:01:00 AM
"the first book queried couldn't be stand alone"
Each book needs to work as an individual unit, though. Star Wars, say, is a good example of a standalone film that very clearly would justify sequels if the demand is there. One of the ways it does that is by hinting at a bigger picture - the main one, though, is it works so darn well as an individual movie.
So, rather than try to commit a publisher to ten books before, show them one brilliant one.
Think of this from the readers' point of view. If your story *really* doesn't work until they finish book ten ... well, are they going to stick around that long?
Concentrate on the first book. Get that right and the sequels will look after themselves.
Query/agent research is a snip :) First visit queryshark (http://queryshark.blogspot.com/) and read the six years of query critiques. This will give you an idea of the dos and don'ts of query writing. Then read the blogs and websites of agents who represent the type of book you have written. Then you're ready to write your own query, and submit your manuscript. Good luck!
If you are a genre writer- specifically fantasy, what if you don't have a series? I am in final edits to a story that I consider complete, stand alone. I am sure the characters still have adventures and trials, but I am very happy with where they end and have no further inspiration with them. Also, the novel is around 85k (in final edits, so might move a little from that but not much). Can I get such a short, stand alone fantasy book published?
Another point you may want to cover with the multibook contract are some of the contract land mines you want to avoid like having all of the royalties held until all of the author's books in that contract have earned out.
Claudine said, on 6/22/2010 12:32:00 PM
Kristin, how long on average does it take for editors to respond to you with an answer, one way or the other, after you've submitted a manuscript to them? Thanks very much!
Thanks for talking about this; my project happens to be a YA/urban fantasy series, so of course I'm looking at multi-books...it'll be cool to know hos this works. You always talk about the right stuff. :)
STATUS: Not sure what is up with Mondays but they seem to be getting away from me lately.
What’s playing on the XM or iPod right now? CAPE CANAVERAL by Conor Oberst
Most authors, at this point in time, are not interested in walking away from a publishing contract over electronic book rights. The numbers are growing certainly (as we can see that statement to statement) but the numbers, in general, are still very small in comparison to traditional print sales.
Now there are certainly some exceptions. I’m very interested in seeing how it unfolds for author JA Konrath who has long blogged about making a living from electronic book sales and has decided, for his most recent novel, to go with Amazon Encorefor the print with the release from Kindle coming earlier. (By the way, Mr. Konrath is embarking on this journey with his agent.)
From what I can tell from my own negotiations as well as from convos with other agents, Publishers are currently holding very firm on 25% of net receipts for the royalty structure. If they are doing an agency commission model (i.e. Apple) they are either not changing their definition of net amounts received in their contracts or they are sticking to the definition that it will be based on monies actually received by the publisher—translation: royalty of 25% of net to author calculated after 30% commission paid to third party (such as Apple). In other words, author is receiving 25% of 70% (not 100%). Reference my earlier blog entry on this topic to get up to speed.
So, if the author does not want to walk away from the offer over ebook royalty (and right now I’d have to say that’s most authors), what does an agent do?
We find another way to protect the author. One method is to include language in the publishing contract that dictates that if industry standard changes in regards to electronic book royalty rates, then the rate can be amended or renegotiated in the future to adhere to new industry standard.
Feel free to add that tidbit to your contracts file.
20 Comments on eBook Royalty: Another Way To Protect, last added: 5/21/2010
I appreciate how well you do at making everything clear and concise. Legalese can get so confusing to me that I really like reading this in plain language that I can understand. The more knowledge we have as authors, the better prepared we are to embark on the publication journey.
Gotta keep chipping away at that granite. eRoyalties are a really big deal to me, not because what they mean now, but what they're going to mean five years from now. I only hope that I'm in such a dominant negotiating position that my threat to walk away from a deal over eroyalties would have a genuine impact on the final agreement.
As it is, I would take a lower advance for better eroyalties if that established a baseline royalty rate for future publications. I consider it a solid investment in my future.
Thanks for explaining the agency model. I finally understand it. Are the publishers going to be reworking their numbers every time a new technology comes out?
I am so glad someone out there is blogging about this. I'd be really nervous if I didn't SEE agents discussing this topic out in the open. It's bloggers like you that help dispel the myth that you have to get published before you can begin to learn the secrets of the ancient society of the publishing world. :D
Thanks for the informative post, Kristin. You always give us something new to chew on.
Anonymous said, on 5/19/2010 9:34:00 AM
Maybe this has been covered before, but I missed it. Do the electronic royalty payments count against the advance or are they independent of it?
Dave K
Anonymous said, on 5/19/2010 9:42:00 AM
The absolute thievery that is the royalty structure for e-books makes me very hesitant about even trying to get published in the traditional manner.
As a poster mentioned above, it is not 2010 that worries me. It is 2020 or pick-a-date-down-the-road.
If I am fortunate enough to get published and do well, I am certainly going to regret agreeing to the 25% or 70% model if 80% of my sales are e-sales. So the publisher saves the cost of returns, printing, warehousing and transportation and I get 25% of 70%??
Boy, this really makes me want to make sure I get a tough, smart, agent. Thinking of that little side gate to add when the publishers won't budge? Golden. I had been wondering if just such a thing could be done.
In the next blog I read another *agent* quotes Kristin as an authority on how the film industry defines ebook rights. If that's not an endorsement of what a leader she is in the field, I don't know what is.
What’s playing on the iPod right now? STAY UP LATE by Talking Heads
From a lot of my posts lately, I imagine that you think all my recent conversations with contract directors at the big houses have been contentious.
In reality, that hasn’t been so. I have to say, that I personally like all the contracts directors at the major houses. They are under the gun and yet they’ve handled differences of opinions with good temper, grace, and with reason—even if I don’t agree with their stance.
In fact, one of the contract directors from a big six house even made me spit coffee and sputter with laughter in our last conversation.
When I mentioned that I didn’t agree with the 25% of net publishers were currently sticking with and that I was not inclined to accept the same percentage if we were to negotiate an expanded or enhanced electronic book, the director, totally deadpanned, quipped in return that I must obviously share his opinion that the split percentage to the author should be lower for an enhanced ebook as they are more expensive to produce.
I was so surprised that I just burst out laughing as did my contracts manager. You gotta respect a contracts director with a sense of humor. Grin.
That's hilarious. I also love that as an adult I find the nerdiest stuff funny. I made a joke about encryption to a computer programmer the other day. And then I shook my head.
You really do need a sense of humor to make it through the day. There are too many crinkly eyebrows in every day dealings. Hooray for a good sense of humor. I love hearing that. There's hope.
I guess someone has to type all of those 1's and 0's. I'm afraid you may get more of the same from other publishers. Just try not to spit coffee on them. ;-)
But pound for pound, an ebook is more expensive to produce! Let's assume a $30 hardback that weighs half a pound costs $5 to produce. That makes it $10/lb. Now let's be generous and say a $15 ebook that weighs nothing (because bits are weightless) costs a penny to produce. (And don't your publishers wish they could pull that off?) That still makes it infinite dollars per pound.
Love it! This also highlights the importance of having an agent who has such positive working relationships with others in the business - even when they disagree.
STATUS: Just a twinge of a cough remains. Kristin—9 flu—1
What’s playing on the iPod right now? HOME by Daughtry
Rumor has it that several of the big 6 publishers are coming out with new boilerplate contracts in the next couple of weeks. I know for sure that Hachette is working on a new one as is HarperCollins.
With these new “boilerplates,” I already know there is going to be a significant difference in opinion about what a Publisher thinks is a boilerplate item and what an Agent will consider as a boilerplate item versus a right that needs to be negotiated up front.
I have a feeling (call it intuition—snort) that the definition of what constitutes an “enhanced ebook” or a “multimedia product” (that’s a new catch phrase I’ve been hearing as of late) will be at the center of these new boilerplate contract debates between publishers and agents.
I, myself, have yet to see a new “boilerplate” contract but am waiting with bated breath… Oh being an agent is just daily fun.
Just thought you'd be interested to know that open-publisher Lulu.com has taken a huge leap towards creating the world's largest book store today by adding traditionally published books to their library. You can see the announcement from CEO Bob Young here: http://lulublog.com/2010/04/12/message-from-bob/
Huh, "multimedia product" could mean anything from a brochure with illustrations to a video card to an iPad. Googling that phrase gives you a vast array of random stuff. Very tricksy.
I'm glad I am a humble engineer who doesn't have to deal with this business trickery. I have no patience for such shenanigans.
Why a writer needs an agent. The terminology has become like reading a lawyer's document -- unintelligible except to the insider, and probably not then
By incorporating phrasing like "Multimedia Product" into the boilerplate, is this implying that such terms are non-negotiable for the publisher? In other words, they are just expecting authors to sign away all rights to any existing or forthcoming format, and unwilling authors just have to walk on the deal?
Is there anything about multimedia product clauses that limits transfer of medium (say, turning the book into a flash animation/game, just for sake of outlandish argument)? With language that broad, what even constitutes a transfer of medium beyond the scope of the contract?
Hi Kristin. I'm curious what royalty % publishers will pay authors. Considering that you can self publish an ebook and get up to 70%. J Konrath has lots to say about ebooks on his blog. I still see the benefits in having an agent, and I see how hard you all work, but newbie authors can make good money controlling their ebook rights.
If we put aside the quality of some self published books and concentrate on revenue, I think more writers will go down this path. Konrath has made me think about the traditional path of agent and publisher. Low priced good quality ebooks at 70% royalty. Makes me think.
Do you have an opinion you can share about this. What do you think is a fair royalty % for ebooks if the publisher has the rights.
I'm very interested to see how "multi media product" is defined. I have this company in my head called "Multi Story." The image is a multi-storied building. The first floor is the traditional book. The second floor includes the book plus an interview with the author (formatted for e-readers). The stories keep going until you reach the top floor--- will that be a movie, or a Wii game based on the book? I would love to see books presented with so many different options to experience them. I would also love to tap into my husband's database of investors and start such a company. Maybe some of your romance writers could give me tips on seduction... :-)
One of the downsides of being a non-New York agent is you can't arrange a meeting and pass your flu bug on to the publisher's staff. (Grin)
It's easy for me to say it because I'm not the one doing the work, but you and the other agents who debate with publishers over these boilerplate changes are going to help define 21st century publishing. So do good work, and, you know, no pressure.
Thanks for letting us know. It's worked out well for authors to hold on to some electronic rights, especially in the short fiction markets. But as the industry changes, it will be harder for authors to interpret what these rights are, and even worse if the industry as a whole doesn't know.
Different definitions for those things?? Ya'll in the publishing industry must still be behind the times in ho you can make your content work for you... when I started as a tech writer in 1998 the move was just happening in manuals to move to PDFs rather than printed materials, and we've been dealing with it since. It's not a lot of effort to take one source and plug it into multiple formats to generate two totally different end products... you can take something authored in Word, plug it into two different InDesign templates and hit the generate button... two different outputs (note: I live in a world where Adobe Acrobat is king). Seriously... there are a lot of out of work technical writers who could generate different formats in their sleep (or at least on a Monday morning before the coffee kicks in). Look outside the box!
What’s playing on the iPod right now? BEEN CAUGHT STEALING by Jane’s Addiction
As you can imagine, I’ve been having a lot of conversations with various Contract Directors at all the major publishing houses as of late as we navigate contract negotiation.
I was in discussion with one person from a Big 6 house and we got to talking about returns with electronic books. Were they going to be allowed on the agency commission model that publishers have with entities like Apple?
According to this contracts person, the answer was yes.
So I asked what I thought was a rather pertinent question. I said, “if Apple allows returns and they’ve already deducted the 30% agency commission from the sale, how will the publisher know that the commission should have been refunded to them for the returned-sale of that title?”
This may be a naive question, but how are returns on electronic copies handled? With physical copies, I get it. What doesn't sell gets sent back to the publisher. (Or with paperbacks, just the cover while the rest gets trashed.)
But there isn't any issue with stock room space in electronic copies.
Any idea how sellers are determining how to stock the electronic copies in order to have a stock that would need to be returned if it doesn't sell? Because, really, you just take the file off your server if it's electronic. There aren't multiple copies that the distributor is holding.
I don't know how this specifically works with books, but I know with Apps sales on the iPhone, even though the developer only gets 70% of the price, they pay 100% of the return.
Techcrunch ran the story in March of last year. http://techcrunch.com/2009/03/25/apples-iphone-app-refund-policies-could-bankrupt-developers/
Allowing returns on electronic copies makes no sense to me at all. Wouldn't the e-book format allow for a 'just in time' model that would remove the need for returns? Thank you for thinking about things way down the track ahead of us, Kristin.
During Slush Week this question came up and I wanted to provide a brief description of how a publishing negotiation generally works. Undoubtedly, this will raise other questions which I would be happy to address.
When a publisher makes an offer, he or she does it either on the phone or by e-mail. I prefer the latter initially so that I can see all of the terms of the offer spelled out: advance, payout, royalties (including electronic royalties now), territory covered, rights splits and any special terms.
Once I have all offers in from publishers (hopefully there will be more than one), I take them to my client, explain what they are and which I think is best and why. We come to a decision on which publisher(s) to continue to negotiate with and I then go back to the publisher(s) by phone or by e-mail and ask for changes or additional terms. Often I will ask for a different, higher advance, a more favorable payout, different royalty splits, things like that. Sometimes I suggest that different rights be in play.
Most often, we come to an agreement in a very short time--usually a matter of a day, but sometimes, depending on what the project is, these do go on over a longer period.
If we arrive at a stalemate--that is, a point that we and our client will not accept and the publisher won’t budge on--we make that very clear. We call this a “deal breaker” and if we say something is a deal breaker we have to mean it. (Between you and me, most of the time these things can be worked out before we get to that point.)
Once this basic negotiation is completed, a deal memo is done--we send one to the publisher and often they send one back just to make sure we are all on the same page in terms of the basic terms of the deal.
We then go on to the contract where additional negotiation is done on boilerplate terms.
Negotiating a deal is one of my favorite parts of agenting; the process encourages creativity on all sides and often breaks new ground.
1 Comments on What does negotiating look like?, last added: 3/15/2010
Do you ever get offers that are exactly what you are looking for? And if so, do you ever still try to negotiate something better in order not to seem so easily satisfied, or needy? Can being easily satisfied be dangerous for the reputation of both agent and author?
STATUS: Springtime in the Rockies! It was 65 degrees and sunny today and I must admit, I left the office at 2:30 in order to take Chutney out for a run and enjoy the day. In exchange, I’m working all evening.
What’s playing on the iPod right now? TOMORROW PEOPLE by Ziggy Marley and The Melody Makers
Last week, I pretty much spent every entry talking about contracts but today’s discussion tops the cake.
Just recently, a publisher made an offer for the next books from one of my clients. Excellent. But this publisher is also one of the big 6 that have announced that they are moving to the agency commission model for the sale of electronic books.
As ya’ll know based on my math lectureabout net receipts last week, there are some key questions that really need to be answered about electronic books and exactly what 25% of net is going to mean.
So my contracts manager and I insisted on talking to contracts director before closing the deal.
The publisher’s response (and this is a paraphrase): they have no idea what the definition of net receipts will be and feel uncomfortable accepting the language we have put forth. Their suggestion? If the author would like to put the contract on hold until the company makes a corporate decision on this, then the author is free to do so. However, the publisher has no timeline for when this will be resolved.
Snort. That’s the solution?
Publishers. The world is changing. Quit dithering. We agents have to negotiate contracts now so maybe get on this. Telling us we can just put it on hold until you get your act together isn’t an alternative.
How about telling them "if you can't define your contract language properly, you can't have any e-book rights at all" !
::Rolls eyes:: Why in the world would they think anyone will sign their contracts when they haven't decided how the author payments will be calculated?
I miss springtime in Colorado. I grew up in Pueblo and I now live in Ohio. Ohio is green and beautiful once spring gets sprung, but it doesn't get actually nice until about May. :(
I read a great, totally unbiased article about the pros, cons, and potential impact of the Google Books Settlement yesterday and it made me wonder what the compensation model they're using is like compared to what Apple is offering. Considering that the publishers have utterly abdicated their responsibility for where the future of their industry is going, it's no wonder they're dithering - they have to wait for Apple and Google to set their digital book business model for them. Any decisions they make now are irrelevant in the face of what those two technology titans decide in the coming months.
Speaking of Google Books, how does that work, contractually? I know authors can opt in or opt out, but how are you advising newbies to handle it? Do the publishers weigh in at all in that decision? I can imagine some might prohibit it and some might encourage it.
Google Books Article: http://www.callawyer.com/story.cfm?eid=908042&evid=1
I suppose I understand where they're coming from, though I don't find it acceptable. Not at all. The publishers probably don't want to accept your language because it will set a precedent, and they don't want to get left behind when/if the other big houses settle on better terms. This is an incredibly bad/sad/maddening position (essentially a take it or leave it till sometime later -- if ever) for you and your client. I'll be interested to hear how this works out.
Kristin, I just love how you can put the most important contract information in understandable terms for those of us that are contract language challenged. Thank you so much for taking such good care of your clients! You rock!
Having spent most of my professional life working on commission I have to say: Uh-uh. No. No way. 25% of undefined/undisclosed is not cool.
Give 'em hell.
Anonymous said, on 3/4/2010 9:00:00 PM
I don't deal with editorial agenda as much in my new position as I did in my old position. In my old position, I was on the front line of the company e-evolution strategy, and I can say without hesitation that the company was unprepared. Not just technologically but mentally. It was new, it was different, and it scared the hell out of them. The best way I could describe their mindset was, "I don't understand this. I'm scared of this. Please tell me what I'm supposed to think so I can continue with my job without actually learning anything about this new paradigm in my profession."
The only publishers that scare me more than the ones that have no e-strategy are the ones that saw this and have prepared accordingly. Many of the positions they have maneuvered to have not been author friendly.
Dither, wait, don't decide, sit on the fence...? I cannot think of any other industry that would be a slow moving to adapt to change as publishing seems to be.
Bright side: perhaps this is a blessing... still free to shop around since nothing has been signed yet.
Is it just me, or are the major publishers (with a move to royalties off net) trying to shift to a payment structure that more closely resembles POD publishers?
I think it's discouraging and telling to learn that they are adopting a model that they haven't even thought through yet, but there is another choice besides capitulating or punting.
You can include a clause in the contract that states that if they provide any other author with a more favorable compensation formula regarding the agency model within a certain time frame, that formula must be retroactively applied to the author's contract. There are all sorts of other clauses and contingencies that can be incorporated into the language that will allow the author to go forward, but not give up a more favorable formula that the publisher may apply in the future.
Your posts are always so informative, thanks so much. I've been absorbing a lot of your posts about contracts. I've been offered a book contract by a small, niche publisher for a short holiday book. I don't have an agent and sort of think that it'd be hard to get one just for this small holiday book, so I'm extremely grateful for the wealth of information on your blog about these things.
I just want to say thank you for working so hard for your clients--and then sharing with the rest of the world what might be a potential issue for us if we're not represented by you...you do us all a great service. THANK YOU.
Publishers. The world is changing. Quit dithering. We agents have to negotiate contracts now so maybe get on this. Telling us we can just put it on hold until you get your act together isn’t an alternative.
Here here! Thing is, there is little incentive for Big McBox publisher to change because 'he who has the most money writes the rules.' They know you'll wait.
I will now go celebrate my smallness with a margarita.
And publishers wonder why they can't get a grip on falling sales and lost profits? This particular situation must be so frustrating because it puts you and your author in a bad place: either accept bad terms on e-books or wait for an indefinite period of time (which may be never) for them to make up their mind, at which point neither one of you has seen any income from said book. Ridiculous. It will be nice when the day comes that the people who hold the power are not the slowest to act.
So what they are saying is sign a contract even though there's no way to really understand the terms, or we won't publish you?
I have no law background, but it does seem possible that putting ambiguous terms in the contract purposefully, might invalidate that contract, or perhaps the eBook rights portion of it?
Either way, it certainly stinks!
Anonymous said, on 3/5/2010 8:47:00 AM
(Picking this up late from PL... )
Most days lately, I get this awful feeling that the definition of net receipts is going to fall victim to the same expenses creep as net film receipts. And that makes me want to reach for the bourbon, and it's not even noon.
Just.... wow. I wonder if the other houses are saying something similar to agents, or if they're scrambling for a solution? Hmmmm...
Anonymous said, on 3/5/2010 9:24:00 AM
Why is the assumption that publishers are trying to pull a fast one on authors and agents? The people forcing change and demanding terms are the e-book retailers. Just as agents are protecting their authors by putting up stop signs and saying we need to figure this out, publishers are putting up stop signs to the e-book vendors to protect both the publishers and the authors. That's why it's taking some time to figure this out.
Anonymous said, on 3/5/2010 10:44:00 AM
Anonymous 1 to Anonymous 2:
"Why is the assumption that publishers are trying to pull a fast one on authors and agents?"
For those not in publishing, moves by houses to claim licenses to ebooks from existing contracts that wouldn't properly compensate authors make a lasting impression.
For those in publishing, I can assure you we were discussing revised strategy to accommodate the growing ebook market long before there was a kindle or an ipad.
Goal 1: Create a mode that prevents resale and eliminate the used book.
Goal 2: Encourage the belief that the ebook is a supplement to the printed text. Authors should think of them as "extras" or "throw aways" for a niche market. Secure long-term rights for low royalties.
Publishers don't want to totally screw authors. Without authors, there are no publishers. But there has been a growing sense of publishing royalties as secondary income among the editorial teams I've worked with. The author is assumed to have a full time job that pays the bills and writing royalties is bonus/fun money. Thus reducing their royalties is okay because you're not jeopardizing anyone's livelihood. Those authors that are large enough sellers to make a living off their publications are also important enough to make greater demands, and thus are an exception to said mindset. As an exception, it creates two identifiable groups: Money Makers and Everyone Else. If Everyone Else wants to get paid better, they should sell more.
Certainly this paints the publisher as villain with a mustache to be twirled and that might be an unfair description of many houses out there that act more ethically than others. But in the end, it's all business and houses can only do two things to generate money, sell and cut costs. It's much easier to cut costs by reducing author royalties than it is to renegotiate with sellers.
Anonymous said, on 3/5/2010 12:35:00 PM
This does not surprise me at all! I love the publishing business, but it isn't known for quick innovation/change. I've been on the other side of the deal negotiating contracts as an editor, and there are times when you have to wait for higher ups to make the big decisions, not that that is an excuse - just the way it works.
Love your perspective Kristen! Keep up the great work.
Eesh! That's tough. On one hand, you want to sell the book for your client, on the other hand, you want to get them what is fair. Vague usually never works to the contract signer's advantage. How will you handle this?
Anonymous said, on 3/5/2010 2:11:00 PM
I still think that somehow the e-book vendors are avoiding examination here. But they're the ones demanding that a $26 hardcover book be priced at half that amount. So then do the math using the current (non-agency) royalty model: on a $13 e-book the e-bookseller gets half, leaving $6.50 for publisher/author. On the print book at 15%, the author got almost $4. So take away $4 from $6.50 and the publisher is left with $2.50 a book. You can't sustain a business on that. It won't be long before there are no publishers left to pay advances if we use that model. I'm not disputing that some people will use this moment as an opportunity to squeeze other players in this business, but we have to remember who the prime mover in this most recent episode is.
mkcbunny said, on 3/5/2010 4:02:00 PM
I get that it may take time to sort out the e-rights issue, but how it sounds like the author is supposed to sign a contract with undefined terms for payment? What is the point of having a contract clause at all if it's that wiggly?
Anonymous said, on 3/5/2010 5:28:00 PM
This is one of those examples that makes me want to self-publish. Yeah, I know that it's a nasty word, but from everything I have been reading, the big publishers are acting the music business did 10 years ago: clueless. Time to just setup up my own publishing company, outsource my editing, and publish directly to the Kindle and Nook. Just tell me when these big companies get a clue, so I can do the whole query thingy.
Excellent new installment in Kristine Kathryn Rusch’s continuing series, the Freelancer’s Survival Guide. This week, it’s more on negotiation–including understanding the basics of the contracts you sign.
Remember, as Kris Rusch and her husband Dean Wesley Smith drill into our heads at the workshops they teach: “No one will ever care about your career [...]
0 Comments on Negotiation, part 3 as of 12/17/2009 5:53:00 PM
What’s playing on the iPod right now? CAN’T GET YOU OUT OF MY HEAD by Kylie Minogue
Currently, Publishers consider non-multimedia electronic rights as part of the “standard” package of the grant of rights when buying a work from an author.
For years, I often held electronic rights (back when publishers weren’t paying attention to it) but now, publishers will walk away from deals unless eRights are granted. Very few authors, especially the new or the debut, are willing to walk away from an offer over a right that makes up such a small percentage of current overall sales—at least in today’s world. Who knows about 10 years from now.
But here’s another interesting tidbit. Let’s say you are successful in keeping electronic as a reserved right. Publishers are getting stricter in the language they are using in the no-compete clause of the contract and that language may make it impossible for you to exercise that reserved right.
I’ve talked about the no-compete clausehere in my Agenting 101 series.
But just to jog your memory, here is a sample of language from a no-compete clause in a publishing contract (and since I lifted it from my previous entry, this language is easily several years old).
“During the term of this Agreement, the Author shall not, without written permission of the Publisher, publish or permit to be published any material based upon or incorporating material from the Work or which would compete with its sale or impair the rights granted hereunder.”
So what am I trying to say here? I’m telling you that even if you are able to reserve your electronic rights so as to as to set up your own deal with Kindle or Scribd (or whoever), your publisher could make an argument that sales of your reserved electronic right is materially damaging the sales of their licensed rights.
Ah, I see the light bulbs going off as you get what I’m saying here.
We’ve particularly seen this over the last two years when reserving comic book/graphic novels rights only to fight on the no-compete clause to make it even a possibility for the author to exercise those rights.
Unless you are embroiled in publishing contracts on a daily basis, very few authors make the connection of how these two very different clauses (grant of rights and the no-compete clause) clearly impact each other. Once again, I hope I’ve shed just a little light on it.
And on that lovely note, have a great weekend!
0 Comments on When The No-Compete Clause Comes Into Play as of 1/1/1900
STATUS: All six contracts are almost complete. I’ll so drink to that!
What’s playing on the iPod right now? ELENORE by The Turtles
Over the weekend I realized my whole Friday entry was a bit cryptic if one didn’t know anything about payment schedules in publishing contracts. I’m pretty certain I’ve covered this in one of my prior entries (check out the Agenting 101 blogs) but what the heck, it doesn’t hurt to repeat it.
When a publisher buys a book, they don’t pay out the advance all at once (and probably none of you suffer from that assumption that they did, but I’ll state the basics just in case). No, when a publisher buys a book, they will stipulate a certain amount for the advance and then the payments are attached to what I call triggers—as in something contractually happens and a portion of the advance is paid.
Typical triggers can be these:
1. on signing of the contract
2. on d&a (delivery and acceptance) of a detailed outline Side note: this happens often when a publisher is buying new books from one of their already established authors and they are buying on spec—as in nothing has been put on paper yet.
3. on d&a of the final manuscript
4. on publication of the work
5. on publication of a paperback edition
My favorite payouts are, of course, ½ on signing and ½ on d&a. Personally, when the monies are small, I really don’t see the sense in doing it otherwise. Now, I can understand when the advance pops into the six figures etc. but I don’t have to like it and I will certainly use all leverage possible to eliminate it. That’s my job after all—to get the best payout structure possible amongst other things.
Lately I’ve been seeing a lot of emphasis from Publishers to have payment in thirds rather than halves.
Of course I don’t lean that way either but I’m okay with it for the most part—if I can avoid the upon publ pym.
I’m sure y’all are sensing a mantra here. I’m not always successful and I imagine as Publishers dig in on this topic, it will be harder and harder to get.
Now as to Friday’s entry, what I meant by weighting forward is this.
What if the advance is 30k for one book. Payouts can look any number of ways.
If it’s in halves, that’s easy: 15k on signing 15k on d&a
If in thirds: 10k on signing 10k on d&a of outline 10k on d&a of full manuscript
Now let’s say you have to have the pym on publication and I can’t budge the Publisher on it. My job is to weight the payments forward.
Instead of equal thirds like this: 10k on signing 10k on d&a of full manuscript 10k on pub
I’ll try to weight monies forward: 12.5k on signing 12.5k on d&a full manuscript 5k on publication
And this can have a myriad of variations. I just did what was easy math.
Clear as mud?
9 Comments on Payment Schedules, last added: 3/25/2008
Thanks for the entry. I want to ask a question, and I hope you don't think I am rude. I am just curious.
You often say you fight hard with publishers over certain issues, such as advance payments. Now in my ignorance, I would have thought that it would be the publisher who had the real clout, unless the book was one really hot piece of property, and let's face it, most are not. How often would you be able to get your desired outcome?
Anonymous said, on 3/24/2008 7:12:00 PM
I have a question too. If a publisher wants a book, and let's say they are not the only ones, so it's something desirable, and you choose them, and they take EIGHT months to provide your first payment (the on acceptance payment) and the contract, while all the time doing edits with you, who is at fault here? My agent said the publisher was just slow and not to worry, but it seems like maybe there was something he/she could've done. Am I wrong? Is this standard?
Morgan Dempsey said, on 3/24/2008 7:15:00 PM
I'm a newbie, so bear with me.
Why would publishers want to do this? The only logical reason I can think to spread out the payments is (a) they lack the $30K up front and would rather pay as they go, or (b) there's the concern that the contract will, for one reason or another, fall apart before finished product is out the door.
Now, (b) may be the reason -- I suspect between those two it would be, as most people would be squeamish about dealing with someone who promises more than they can deliver -- but if so, why would a contract fall apart?
I'm just placing myself in a soon-to-be-published writer's shoes and finding that this desire to segment the payout would make me somewhat queasy. (From the sound of it, it makes you slightly queasy too ;) )
Sorry if the question seems silly. Just curious :)
Anonymous said, on 3/24/2008 8:47:00 PM
When you contract someone to put an extension on your house, do you just hand over 30K and say "that should cover it -- I look forward to putting in my furniture" ? Of course not -- you pay out money upfront in good faith and then money when things are done. Unless you are a fool, of course. This is the way of the world.
To make you all feel better, illustrators all too often must finish entire books, particularly rushed ones, before even seeing the first payment, which comes after the contract is drafted, redrafted, signed, and processed. So quit your whining.
Ghost Girl said, on 3/24/2008 8:52:00 PM
Thanks for the clarification, Kristin. My DH's book was done in 3rds, with the last payment due on publication (which will be this fall).
Anonymous said, on 3/24/2008 8:54:00 PM
P.S. Soon-to-be-published-writer-shoes-wearer: you should be worrying about how to diminish the unlikeliness of ever getting published with a $300 deal instead of spending your time worrying how they're going to chop up your 30K.
Anonymous said, on 3/25/2008 2:01:00 AM
Anon # 1 (and #2 since they are the same person I suspect) is crabby today.
One of the reasons people like to avoid payment upon pub is that pun can be so far away. Also, there is always the chance that the publisher will not actually publish your book, even though they have accepted the manuscript. Slim, but real chance.
CM said, on 3/25/2008 5:53:00 AM
The only logical reason I can think to spread out the payments is (a) they lack the $30K up front and would rather pay as they go, or (b) there's the concern that the contract will, for one reason or another, fall apart before finished product is out the door.
Actually, it probably has more to do with the time-value of money. Given that there's usually a year or two between signing and publication, if the publisher can put off paying that final $10K for two years, they can earn interest on it. It's probably worth an extra thousand or so dollars to them to pay it as late as possible. Multiply by the several hundred books they produce each year, and you can see why they put off payment for as long as they can.
Anonymous said, on 3/25/2008 8:16:00 AM
Anon 7:54 --
AMEN!
--(a published writer who has no 30k lying around!)
Anonymous said, on 3/25/2008 1:01:00 PM
Wouldn't a new writer be someone who has already submitted a complete manuscript (because it is seen as very poor taste to submit to an agent or publisher without a fully realized manuscript, for a newbie; I can see it would be different for a writer with an established track record)? That would mean two tenets of the issue have already been met; contract signed, manuscript completed and delivered, all in one fell swoop.
Am I incorrect?
T-Bone...
Anonymous said, on 3/25/2008 1:05:00 PM
Oh, and how is this going to be effected by the eventual advent of e-publishing?
#1-- will there be agents at all when it is more cost effective for publishers to take on twice as many writers (or more) as they have in the past?
#2-- will contracts be delegated to something as simple as e-mail accounts, electronic signatures and payment through services like PayPal and electronic fund transfers?
#3-- will publishing drop in profitability enough that many writers will leave writing for lack of time & money, once again opening the market up down the road?
T-Bone...
joelle said, on 3/25/2008 1:08:00 PM
By manuscript delivered, I believe she was talking about the final edits. Even if you've got a whole book done and it's sold that way, you will get an editorial letter (except under special circumstances) and then you have to do your edits. When the edits are accepted, then it's considered "manuscript delivered". I think.
Anonymous said, on 3/25/2008 1:15:00 PM
Looking at the numbers Kristin posted about the payout schedule for a low paying novel, I think it might actually be approaching the point when a good writer can make more money selling short stories to decent magazines. Sell a big enough story to a well-paying mag, and you make three grand or so. No agent fees, flat payment schedule, and recognition are the rewards. Better yet, sell enough, get noticed by agents/editors, and get a bigger offer on your novel. Get some of your stories published in an anthology next to some really big names and drive up the sales of your novels!
Move to the coast, live on a yacht, marry a supermodel and pump out a few good looking kids. Watch your novels be made into movies, invest wisely and write your memoirs. Attend conferences and look contrite, not smug, and lend a helping hand to struggling writers.
Simple, easy! See you all in Santa Barbara for the wine festival.
Rachel Glass said, on 3/25/2008 3:35:00 PM
This is really helpful information, thank you Kristin. I found a blog you did a while back (not on this site) that listed agents that accepted e-queries. It has proven most useful, thank you!
STATUS: TGIF! I’m going to be so happy when all these contracts complete. That’s my new definition of happiness. That way I can get back to reading—which is the more fun part of the job.
What’s playing on the iPod right now? YOU LEARN by Alanis Morissette
I wish this issue would go the way of the dinosaur. I was talking with a few agent friends today and this topic came up—as it often does. Unfortunately, I’m convinced this one is stuck here for good so what to do about it.
Certain publishers are demanding payments on pub no matter what the advance is. (Cough—a publisher that begins with a “P” comes to mind). Other houses are more relaxed until the money gets into the six figures, then the upon pub payment rears its head.
Unless there is an auction going on. Then the agent can get the publisher off it because they want the book enough to be in an auction so will often be flexible where payout is concerned so as not to lose the auction.
If an author is big enough or established enough, well, anything is possible right? Not just no payments on pub.
But if you can’t get rid of it, what do you do? Well, we weight the money forward so as little money as possible will be paid on pub.
One agent did point out another factor I hadn’t really considered which is that an on pub payment allocates money in a different year as other monies in the contract (as publication more often than not happens in a year other than the contract). This can be better for authors in terms of paying taxes. This is true but it seems to me that taxes can be managed properly and most people would prefer the monies earlier.
I’m out.
14 Comments on Payments on Pub, last added: 3/24/2008
Waving ignorance flag here: does this mean no money from the publisher to the writer at all until the book hits the shelves?
What protects the writer from a publisher that decides it will renege on the contract? Does that ever happen?
Is this something that is happening with small houses as well that may be less financially able to pay up front or upon signing? What if they go out of business before publication?
Thanks for raising it, Kristin.
Anonymous said, on 3/21/2008 8:50:00 PM
jwhit,
Traditionally there have been two payments - usually on contract signing and on manuscript acceptance. Now this payment on pub adds a third payment, when the book hits the shelves. I'd rather manage my taxes and get two payments, especially in the case of a book being published 18-24 months after contract signing. That's a long wait for the final third of the so-called advance.
Eric Riback said, on 3/21/2008 10:45:00 PM
It thwarts the newer author who's getting a small advance but is smart enough to spend it on marketing, except she needs the cash to start doing this well before pub date. That doesn't help the publisher, does it?
As well, it seems to me that when the mss. is delivered, the author has held up his end of the deal. If for some reason the publisher delays release, that shouldn't affect the authors cash flow beyond the fact that any royalties above earn out will now come later.
Dave Shaw said, on 3/21/2008 11:04:00 PM
They're just trying to improve their cash flow by cutting into ours. Seems like every business these days is trying to get better payment terms. Most would rather not pay for anything until they've already sold it.
San Remo Ave said, on 3/22/2008 8:08:00 AM
Yep, I agree with Dave. This is for their cashflow not the author's. It allows them to spread out their investment. The longer they keep the money in their bank, the more interest they can accrue. I see companies all the time dragging out "net 30 day" invoice payments to 45 days. In my opinion, it's a shameless and cheap business practice.
The impact on the individual author's taxes is just a rose-colored-glasses way to look at it.
Anonymous said, on 3/22/2008 11:16:00 AM
It sounds like the publisher's idea of a layaway plan. Gee, I wish I could put my electric bill on plan like that.
Anonymous said, on 3/22/2008 12:38:00 PM
It's a matter of publishers (like most businesses) wanting to hold on to their money for as long as they can.
Richard Nash (Soft Skull) said, on 3/22/2008 2:47:00 PM
Well I don't notice booksellers paying advances to publishers for the rights to sell a book, and I don't notice agents paying advances to authors for the rights to sell a book--so why, exactly, is the publisher being "shameless and cheap" and the agent, and the bookseller not being?
Treating the publisher as adversary in this transaction is crazy. It is already an insanely capital-intensive business, far more so than in other media. Why on earth does it make sense to extract as much capital as possible out of the part of the supply chain that is already under the most pressure?
Jamie Hall said, on 3/22/2008 4:15:00 PM
To Richard Nash:
I would assume that authors are "the part of the supply chain that is already under the most pressure" instead of publishers. And this would be more true with the biggest publishers.
Tannat Madiran - The Darkest Grape said, on 3/22/2008 7:54:00 PM
this is a lot like the liquor business - not right or wrong, just another form of money management.
a winemaker makes wine, takes him a year. a broker pitches it to a wholesaler, the broker does not get pad until the winery does. the wholesaler wants 30-60-90 plus day terms, i.e. he doesn't want to have to pay for the wine until he has had ample amount of time to have it sold.
not the greatest deal, but industry standard, though better brokers nail them down to 30 day terms...
jwhit said, on 3/22/2008 8:28:00 PM
BTW, This blog has made it to WD's Best Websites of 2007: http://www.writersdigest.com/101BestSites/?m_sCategory=AgentBlogs&m_nYear=2007 Congratulations, Kristin!
Jan
Ithaca said, on 3/23/2008 3:49:00 PM
Not sure about this. The UK tax system allows income averaging, so it makes no real difference if you get a big payment in one year and nothing the next. The US (as far as I know) doesn't allow that. So staggering payments actually is a way of managing taxes. Which is not to say, of course, that one wants part of an advance to be contingent on publication.
Anonymous said, on 3/23/2008 5:45:00 PM
Excuse the anonymous commenting, but in order to share some details, I find it necessary. For average sized-deals, I agree with Kristin that the money should all be given in advance, thus, the "advance." However, big deals--especially multi-book deals--I understand wanting to hold a little back. I'm going to use some nice round numbers and suggest that an author received a three-book deal for $100,000 per book. Let's say the agent is able to negotiate half on signing and half on delivery. That means that the author will get $150,000 on signing, and an additional $50,000 on delivery. That means that a year before the first book is even released, the publisher has essentially paid for two whole books. Cool for the author, but can you understand why the publisher balks at that? On the other hand, if you do a third on signing, a third on delivery and acceptance, and a third on publication, then the author gets $100,000 up front, $33,333 a few weeks later (d&a of the first MS is almost always within a month or two of signing) and then $66,666 a year for the next two years (one D&A and one publication per year) followed up by a final year of $33,333. That way, by right before the first book has come out, the publisher has paid $133,000 for that book so far. They'll be much happier to cough up that next $33,000 on publication. And really, what author can complain about that? I personally like knowing that I am going to have a steady income over the next several years rather than one big lump sum right up front and then several slightly sparse years.
And like Kristin said, it's in the author's best interest to try to get more of the pie before publication, but having a bit left over (for me it's 25% upon publication) just seems fair when you are working with big deals or multi-book sales.
JMO.:)
Anonymous said, on 3/24/2008 6:01:00 PM
It's frustrating. I am with that 'P' publisher and they're great, except for--yes--the publication payment. This sucks but is almost impossible to get out from under. I hoped it would change when I moved to a much higher advance per book but nope, nope, it got more entrenched. But at least I don't have joint accounting, which gives me a lot of comfort. :)
That story about the fine for the lady whose baby died reminds me of my human resources department on campus. When my baby died, their response was to tell me that I only would receive maternity benefits for the five days that he lived. Wow, what’s wrong with people in these rule-oriented jobs?
K.G. Schneider said, on 9/28/2007 11:39:00 AM
Ellie, I’m sorry for your loss and for how nutty some people can be. The story about the toddler who died (which I commented about on Library Garden) has a better ending — the library showed compassion and flexibility.
“”It’s just metadata. So it’s only slightly evil.”
Best.line.about.metadata.ever.
Thanks for the pointer to the Doctrow piece.
K.G. Schneider said, on 9/22/2007 6:29:00 AM
Thanks for thanking me. I’m thinking that the selective posting of the occasional delicious link is working better for everyone. I’m also using the annotation feature a little more creatively.
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Gently snowing, how cool is that, I just got out from under 2 feet. And this contract clause sounds almost as scary, it sounds like Macmillan is saying "give me your hard work and I can do anything I please with it." - Please say I'm wrong.
I hope it's not enforcable and that even authors desperate to be published don't accept it as is.
Good grief...
I can't say anything else, or I risk saying something I don't want anyone to hear, read, or otherwise know I'm thinking.
I'm so shocked I can't get my eyebrows to come down.
That's just shameful! That's like taking a photographer's work and claiming the copyright because you painted a mustache and glasses on the subject!
Hmm. Perhaps this was the other shoe dropping? They made the contract longer and more complicated to conceal their shenanigans?
For what it's worth, I've heard that you can actually sell the rights to make derivative works, same as normal rights. So it's not illegal -- it's just a sleazeball maneuver.
Also, giving them the benefit of the doubt: maybe legal was ordered to extend their contract boilerplate to cover e-book versions, and the intern who got the job of re-writing it used some fancy legal language without knowing what it meant?
Not that it matters. Whether their amoral or incompetent, the reasonable response is the same: send it back to them with a note saying "Um, WTF?"
Blowing the whistle on your blog is unnecessary, but much appreciated regardless.
Kristin, can agent negotiate that clause out of the contract for his/her client?
Thanks for bringing this up!!!
There is good faith and bad faith. In good faith, you would draft a boilerplate that is to your favor, but within the bounds of generally accepted rights. This one is bad faith. Trying to slide one by the author (and agent). As you say, it contradicts copyright law and all that is fair. But if the victim who agrees to it doesn't know that, what difference will it make?
My word!!! That's very not cool. Here's hoping everyone who needs to see this post will.
Wow, there are so many "little" things in the contracts that I wouldn't have a clue about if I went it alone. They'd turn in to big huge "things" as soon as I signed my life away. As always, thanks for the info!
My thoughts? WTF!? That sounds very sly and horrible.
Is this common? I'm appalled. We're talking about a pretty big publisher. Does this make you not want to deal with them, and do you have other options for your clients? Thanks for informing us.
"Derivative works" is defined in 6(b) as "any derivative works based on the Work that this Agreement authorizes the Publisher to create or to authorize others to create."
The boilerplate in section 4 includes pretty much every kind of subsidiary right, and these can be negotiated individually and included in the grant of rights or reserved by the author.
My reading of the contract is that 6(b) gives the Publisher the copyright for derivative works authorized under section 4 (such as an audio recording or a graphic-novel adaptation), but does not give them any additional rights to create derivative works that aren't expressly authorized in the author's contract.
Do you read the clause differently?
I believe "derivative works", in terms of copyright law, is commonly understood to mean sequels, spin-offs, adaptations, and so forth. Stuff that you don't want the publisher to be able to sanction without giving the author a cut.
Phew!!! That don't smell so good...
Thanks, Kristin, for the heads up!
Wait. Tell me I read that wrong.
Wow. See, this is why I want an agent, rather than trying to go it alone. It's good to have someone watching out for you.
I hope you can help your client(s) with that clause.
I'd cry 'copyright infringement' right away! Wow. As a professional photographer, I'm acutely aware of these kinds of things and for something like that to 'show' up? Boggles my mind. Wow. Wow. Wow. :( Thank you for posting!
First: this is why it's so important for content providers to read contracts, and to know what is common and uncommong in them. As Paul (above) said, this is why I would like to have an agent--to help me understand what is normal in a contract and what isn't, and to keep me from getting (pardon my American) screwed.
The objectionable part is that the publisher thinks that it should own these "derivative works," not the derivative works themselves. If it was the derivative works, you'd be outlawing, among other things, fanfiction, compendia, concordances, etc. Those things seem to simply increase excitement around a book or its universe, but never replace the actual book itself. But the way that this is written now, I could see some clever publisher claiming that it owns a fanfiction site.
Anonymous at 6:38 pm-- not only the agent, but the writer herself, working without an agent, can negotiate it out.
I've negotiated seven contracts without an agent. You need to read them very carefully. Most things, in my experience, can be changed simply by asking. But if you don't read carefully, you won't know to ask.
As an author waiting to be published, I'm not very demanding. I know I won't make much money. I know I'll work like a dog. But at the end of the day, those characters and novels are mine. I'd rather give them away for free than allow a publisher and their ghostwriters to write the series without me. If that's what that clause means, it's a "mountain worth dying on."
I flashed for a minute on James Frey. Is that his name? That guy who wrote the fictional non-fiction memoir? I have also blocked the name of his reprehensible writer-for-hire company.
How awful.
Just a Canadian law student chiming in:
US copyright law is unusual in that it explicitly covers derivative works. Title 17 of the US Code contains a definition of derivative works (in §101) that includes any form in which a work may be "recast, transformed, or adapted", including "elaborations"
Most importantly, §106(2) grants the owner of copyright the exclusive right "to prepare derivative works based upon the copyrighted work". Like the other exclusive rights enumerated in §106 (including the basic right of copyright – the right to make copies), this right can be sold to others.
Now, I may be missing something here, but as far as I know it is completely legal to assign the right to create derivative works. Indeed, I believe that in some fields (such as photography, particularly for corporate clients) it's actually fairly common.
This isn't meant to suggest that Macmillan shouldn't be putting this clause in their contract. I'm just pointing out that assigning the right to create derivative works isn't some sketchy legal trick – it's a perfectly legitimate right that you own and Macmillan wants. Whether you give it to them is up to you (although I can't think of many authors who would surrender it).
Necessary disclaimer: I'm not a lawyer yet (and I'm Canadian, to boot!), so don't rely on this like it's real legal advice – you could get into trouble.
Your "eyebrow raise" was perfectly timed, for that is exactly the expression I wore as I read those words.
All I can say is - Seriously? I mean really. Seriously? *shakes head with eyebrows still raised*
Oh, those wascally wassholes...
OK, there seems to be some dissension in the comments over whether the publisher can legally ask for these rights, but even if they can, it seems to be a bad faith move and deprives the author and creator from potential income. I'm sure most authors would like to see this clause removed!
Wow, is all I can say. And thanks for sharing!
Thanks for passing this along ... yikes!
Off topic, royalty loss on e-books from the Authors Guild:
“The Help,” by Kathryn Stockett
Author’s Standard Royalty: $3.75 hardcover; $2.28 e-book.
Author’s E-Loss = -39%
Publisher’s Margin: $4.75 hardcover; $6.32 e-book.
Publisher’s E-Gain = +33%
“Hell’s Corner,” by David Baldacci
Author's Standard Royalty: $4.20 hardcover; $2.63 e-book.
Author’s E-Loss = -37%
Publisher’s Margin: $5.80 hardcover; $7.37 e-book.
Publisher’s E-Gain = +27%
“Unbroken,” by Laura Hillenbrand
Author’s Standard Royalty: $4.05 hardcover; $3.38 e-book.
Author’s E-Loss = -17%
Publisher’s Margin: $5.45 hardcover; $9.62 e-book.
Publisher’s E-Gain = +77%
Full article: http://www.authorsguild.org/advocacy/articles/e-book-royalty-math-the-big.html
I find this quite scary, actually, and possibly somewhat underhanded. Macmillan's New Writer department receives tons of novel submissions, daily, from new and unpublished writers--most of them without representation, and with no knowledge of the industry or their rights. I'd imagine there will be an awful lot who could sign without understanding the contract, and it appears as nothing more than them taking advantage of that. :(
Frightening news about that publisher, but not unexpected. More and more of them are willing to take advantage of writers in these uncertain times, while the entire profession is in flux.
Very bad news.
>>>get in touch with the Authors Guild before doing anything so detrimental to your intellectual property rights.
*snort* Turn to the AG? The biggest sellouts in all of writing and publishing history?
The Authors Guild Leadership: 21st Century Chamberlains
Yeah, they'd be *real* helpful. NOT!
I am calling upon writers and readers alike to please boycott Macmillan Publishing until they remove the onerous clause from their contract which grants them the right to create "derivative works" based on the work they are buying from the author.
Please Tweet, blog and post on FB about this. This insane attack on writers while the entire industry is in flux has got to stop. It is time we empower ourselves and fight back. It is time we demand to be treated with dignity.
Please, help spread the word about this boycott.
We must fight back in our own self interest. No one else is going to do it for us.
Kenneth Mark Hoover
Allen, TX
And while you're boycotting, ten thousands scabs are licking their chops because now they can be "validated"...
Scott Nicholson
http://www.hauntedcomputer.com
Indie publishing gains again.
Does anyone have a copy of the contract? I'd like to see what it says.