Thou Shalt Only Publish Here, Not There, Nor Anywhere

December 20, 2013

I'mstuckwithyou

I received an email from an acquaintance who received a contract offer with an alarming clause, and he wanted to know if this was a standard clause.

In a nutshell, the clause forbids the author from submitting subsequent similar stories to other publishers – or self publishing it. All stories that are deemed “similar” fall under the jurisdiction of that publisher and must remain with that publisher.

Now, this is entirely different from a First Right of Refusal clause, which simply states that the author must give their publisher the first right to review subsequent manuscripts, and reject it or offer a contract. I wrote about it here,

This is far more overreaching, so I’ll explain the pitfalls:

Definition of “Similar”

There is no definition of “similar,” in the contract, so how is the author supposed to understand what falls under the current publisher’s purview and what he can submit elsewhere? Are they talking about genre, plot, characters, setting? Further muddying the waters is, how does the publisher possibly enforce that clause with such dubious wording?

Many authors write in the same genre, so if an author writes YA distopia, does this clause grab all of the author’s future YA distopia? Or are we talking the characters? Without having this clearly stated in the contract, the author is walking a tightrope without a safety net. The worst of all is that the publisher has ultimate control over what they deem “similar.”

Authors can’t be held to a moving target. Define by what is meant by “similar,” then maybe there’s something to work with. However, at that, I would never, never, never suggest an author sign such a ridiculous clause in the first place. And, frankly, I would question any publisher who would put that into their contracts.

Author Freedom

My friend’s acquiring editor told him this clause is meant to help grow the author’s career by cutting down on cases where the author could find themselves competing against their own work by having similar books at different publishers.

Personally, I think this is a load of camel slop because first and foremost, the publisher is inhibiting the author’s freedom to do what he wants with his writing career. What this really does is help the publisher corner the market on that author’s “similar” works, therefore ensuring maximum sales for the publisher…which, in theory, is good for the author.

And sure, I can imagine the frustration a publisher would have seeing one of their authors give another publisher a similar book. The original publisher worked hard to establish the author’s platform in the marketplace, and now they have competition. And my answer to this is that it’s incumbent upon the publisher to be so freaking fabulous that the author wouldn’t think of going anywhere else. It should be a relationship of fabulosity, not force.

You do not, not, not take away an author’s freedom. It sends a terrible message, and…well…it’s rude. A publisher is either up to the task of doing good things for their authors, or they’re not, and the author should have the ability to move on if they want. Good publishers don’t keep their authors by force.

Publisher Suckosity

And this brings me to another point. Publisher suckosity. What if you sign a contract with this clause and you find out down the line that the publisher isn’t doing a good job in promoting, marketing, distributing, and selling your book? The clause makes you their writerly slave.

Signing a contract is a happy happy time, filled with daisies, puppies, and rainbows. Authors never imagine the possibility of a Dark Lord of Suckosity surfacing, bringing slobbery, murky, bloaty gnomes whose sole job is to make you wish you’d never picked up a quill.

So the worst case scenario is that not only have you discovered the Dark Lord of Suckosity, but this lousy clause ties you to them with lightning bolts.

Any clause that gives the editor control over deciding what “similar” means is meant to favor the publisher. Trying to insist that these clauses are meant to protect the author is publishy-speak for, “Gee, I hope they didn’t see through my smoke and mirrors.”

This clause puts you in a Demilitarized Zone – you’re not free to take a step forward or backward because they own your soul and tell you what you can and can’t write.

My advice to my friend was to run. Far and fast. And if you see a clause in a contract, I urge you to join my friend. Stay safe, dear writers!


Do editors change their minds?

June 9, 2010

Kristin Nelson has a happy problem. An editor called her up to offer a contract on a book that she’d rejected a couple months ago. Predictably, Kristin’s flabber is duly ghasted as she asks, “Wha’ happened?”

Obviously, the editor had a change of heart. The question is why? As one who has done this twice, I can offer  some insight as to how our normally steel trap brains can sometimes be afflicted with Swiss Cheese-itis.

Too many cooks in the kitchen

When an editor falls in lurve with a manuscript, she is beholden to a number of people to justify making a contract offer. This means she needs to defend her choices. This happened to me a couple years ago. I HAD to have this manuscript. Loved it to bitsies and piecies. Then I took it to committee. It was the thud heard ’round So. California, New York, and Tennessee. All I could say is,  “whaddya mean it’s not a good idea??”

I had found a literary masterpiece, and all these cooks were telling me that the recipe I’d taken out to cook for dinner was a risky choice. Bah! Well, ok, they’re right on one account – sometimes my dinner choices are a bit – shall we say, unique. Overruled in the kitchen, I rejected it with heavy heart.

Two weeks later, I still couldn’t get that book out of my head. I knew I’d made a mistake. This is also when it’s lovely to be the Queen holding a bloody red editing pen. I told everyone to go suck stale artichoke hearts and immediately contacted the agent – whom I was fairly convinced had already hung me in effigy.  Against everyone’s advice, I bought the book, and have never been happier. I pulled out my cat o’ nine tails and made sure my distributor got that book graced on every bookshelf in the region. The author kicked literary tushy. Me is a happy editor for not listening to the other cooks. Let ’em burn their own brownies.

Hot tamale

And speaking of food, sometimes a book comes along that I think I can’t sell. Then I sign another book whose author has a very big platform. It makes me think of the previous book I rejected and wonder about increasing our footprint on that particular category. In other words, I’ve got one hot tamale on my hands, why not make it two since they complement each other.

Hot Tamale Part Deux – getting there first

Then there’s the breakout book. Hmm, sez the editor. I see a case where this particular topic is heating up, and I just rejected a very good book that dealt with that issue in a fabulous, unique way. Hmmm, sez the editor again, only now holding a very strong margarita. Mebbe I should see about getting that book back. I now know I can sell it because Big Platform Author is opening that particular door.

Sorry, we’re all sold out

Of course, the big fear of changing one’s mind is that the book was already sold to someone else while playing footsie and threatsie with one’s submission team – or the beagle, who has entirely too big a voice in what we buy.

This happened two years ago. A book came along that I knew was HUGE. The author and story were what I term “a complete package.” She had a terrific platform, drop dead gorgeous, and the story was utterly riveting. The problem? It needed a ton of work. I’m talking complete rework – done probably by an indie editor or a co-writer – or an insane editor who would literally rebuild the work from the ground up. I’ve done this before by taking on the project myself. Thankfully the book sold very well, but it nearly killed me in the process. I wasn’t mentally ready do it again.

While I had some correspondence with the author about rewrites and such, I allowed too much time to pass pondering whether to jump off the fence and make the deal anyway. It slipped through my hands. She signed with a lovely agent who sold the book for mega bucks. I lost out. As much as I like to rib the agent, I’m happy with the way things turned out. She got the deal of a lifetime AND a co-writer. And really, as much as I wanted the book, I want what’s best for the author.

In the end, jumping off the fence comes down to what we feel in our gutses. It means going against the other cooks in our kitchens or questioning our sanity for considering taking on a huge rewrite because we know an equally huge story is burrowed beneath the surface.

And yah, sometimes a rejection comes back to bite us on our lower forty, and we hope the stars are in alignment so we can correct our earlier blunder.

Gad, but I love this job.


Writers unions and contracts

June 9, 2009

I’m the first to acknowledge that contract negotiations can be contentious, and I’m proud (and thankful) that negotiations have never gotten to the point of spitting and pulling hair. We believe everyone should come away happy and feeling like a winner. Problems can arise when one side feels the other side isn’t giving enough ground to meet somewhere in the middle. And this is where the art of negotiation comes into play.

This is why I adore agents. More than any other group, agents understand how far they can push a particular point and when it’s necessary to walk away from either the table or that particular point. They know when a publisher is mushy on a term and may cave in, and when no means no. If it means no, agents look for other options elsewhere in the contract to balance things out. To date, we’ve only lost one negotiation, and it wasn’t because the agent walked away. Agents want to make the sale, and they are in the best position to determine a good deal from a bad one.

But not all writers have agents, and some may turn to writer’s unions for guidance, and of late, I’ve begun to wonder if the unions care a rat’s hiney about making the sale. And why should they? It’s not like their paycheck depends on the author signing a contract. They’re advisers, and they have a largely undereducated audience hanging on to their every word.

Don’t get me wrong; I feel writers unions do a great job at educating authors about the industry, general contract language, and protecting writers’ interests. But over the years, I’ve had enough dealings with them to make my teeth grind because they can be real deal killers. I understand they are there to protect the author and make sure they don’t get screwed, so a big hooya to that. However, I’ve had a number of instances where they told their author-member that certain terms are “common language in all publishing contracts” and to hold out until the publisher relents.

The author, not realizing any different, delivers the ultimatum that offers zero wiggle room. Either the publisher caves or there is nothing to talk about. So the author now faces losing a perfectly good contract based on iffy advice. Some of the ultimatums I’ve seen have been outrageous, and I can’t imagine any publisher agreeing to them. Yet the author doesn’t realize this because the union told them “it’s standard.” Who to believe?

Where an agent will offer alternatives and keep the negotiations alive, the writer union author faces an editor who is left with nothing else but, “nope, sorry,” and walks away. Instead of looking at a contract, they’re back on the street, so who won here?

Sure, the author can tell himself that the unions protected him from a skank deal, but how can they really be sure? Authors don’t know enough about publishing contracts to know if a sticking point is really worth the risk of having the editor withdraw the contract offer. Unions don’t understand this; agents do.

And don’t forget, the unions don’t negotiate on the author’s behalf. They only advise the author after looking at the contract. The author is on his own. He can either accept or refuse their advice, and it’s no skin off the union’s nose. The author doesn’t have the experience to know when to hold ’em or when to fold ’em, and they could play the wrong hand based on advice given by someone who has nothing to gain or lose.

My advice? Definitely listen to what writers unions have to say because they invariably know more than you do. And then talk to an agent. It’s always easier to get an agent when you have a contract in your hands. And they will protect your interests and get the most realistic deal.

And that’s the operative word here; realistic. Writers unions don’t often take into account that an unknown author has far smaller bargaining power than a well-established author who brings in millions. What’s realistic for Big Author is far different from Unknown Author, and those contracts will reflect those differences.

Have I mentioned that I love agents?


Do I sign or do I wait?

May 20, 2009

There are days when I win and days when I lose. Today I lost, but I’d like to think the author won. Or at least is in a position to see what’s beyond the horizon.

Let me back up here. A lovely agent queried me with a project I was very excited about. After reading the full proposal and sample chapter, I was all over it like a big dog.

I.
Wanted.
This.
Now.

This is when negotiations begin. We were close, but not close enough. After some thinking, the author decided not to accept our offer. Rather than be pissed off and jerky, I always appreciate how tough this decision is.

“Have I screwed up?”
“Will anyone still want me?”
“Should I have signed?”

The answer to all those questions is, I have no idea. The one thing I can say with absolute certainty is that authors who sign on the dotted line MUST be happy with the decisions they make. There is nothing worse than buyer’s remorse. Tattoo that on your forehead. Now. I’ll wait.

See, there is a lovely dance that takes place during negotiations. Editors are wondering, “How long has the manuscript been out on there?” Agents are wondering, “how far can we push the envelope?” How those negotiations work out invariably answers our questions.

I’m of a mind that the one I lost today is relatively new to the market. In the end, it doesn’t matter. I lost, and that’s it. Or is it? Many editors will pull all their coolbean offers off the table once the contract is refused. I think that’s shortsighted. If I loved the work enough to make the offer, why should I act like a spoiled sport and take my toys out of the sandbox and go home? Doing so forces the author’s hand, and that’s something I detest. I loved it before, chances are I’ll still love it again. If I don’t, then the Karmic Klown is smilin’ on me, isn’t it?

Regardless, I’m not a fan of strong arm tactics and don’t believe authors should feel pressured to sign a contract or lose the deal. It’s like the beagle; if I keep her on a tight leash, she always waits ’til I fall asleep and then squeezes out so she can carouse with those randy Dalmations down the street. If I just let her go, she always comes back. Authors need to know what is out there. If they get an offer right out of the shoot, they’ll always have a case of the “what ifs?”

I don’t want to work with a “What if?” author, no matter how much I love their work. It has to be right for both parties. If you’re put in this position, and you’re not sure what to do, consider that only you are in control of your future, and you have to rely on your gut and your agent. If you feel you can do better or want to find out if there is a “better,” then by all means take it.

The one I lost today is a big story and as much as I wanted it, I honor their decision to have their agent continue submitting it out. I think the authors knows little about the publishing world, and this is a perfect time to learn. Maybe they will find a house that meets every one of their needs. I hope they do. Heck, we all want the perfect scenario, right? There are many options that make up a “perfect deal,” and funnily enough, it’s not always about money. Authors need to find that out what elements make it “perfect” for them.

Is your work time sensitive?
Are you looking for more input to the creative process?
Are you looking for an editor who won’t try to morph your story into something you don’t resemble?

It could very well turn out that after knocking around for several months, you’ll find out your original offer was the right one, and maybe the original editor will have a sense of humor about it all. As far as I’m concerned, why would I squirrel a deal because the author wasn’t ready to sign on my time frame? My love for the project won’t fade, so why put the author in a tough position? Stupid.

Think hard before saying yay or nay if an offer falls short of your expectations. It’s true that the deal may not be on the table at a later date, but this is the beauty of having a good agent by your side. There are times when success comes early on – as I think it did with this author’s particular case – and you simply need to put a big toe in the water to see how many other fish are willing to bite.

Lastly, I know this is a gamble and scary to boot. But there is nothing worse than going through production with “shoulda, coulda, woulda” banging against your cerebral cortex.

As for me; heck, I’m holding out hope. I had an author shop his work for a long time before he came back because he realized I was the only one who shared the same vision for his work. I’m patient. But most important of all; I want the very best for authors, whether it’s with us or somewhere else.


Be careful and read the fine print

December 24, 2008

Ok, so I lied. I really, really, really intended to laze around this vacation and not even think about work, but I woke up obscenely early with my brain buzzing and my fingers itchy. My first thought was that I need therapy. The beagle confirmed it when she refused to yield my pillow, and I didn’t kick her out of bed for her insolence. At any rate, here goes:

Publisher agrees to pay the Author 40% of the net profits received. This amount will be the cover price minus printing costs, distribution discounts.

I’ve been seeing variations of this statement cropping up in POD contracts, and I want to address this issue in order to expose this confusion. First thing the author is going to focus on is the 40% royalty. Whooweeeeehotdiggity! 40-freaking-percent? Yeehaw. It’s about that time when the author’s synapse stop firing, their comprehension slides into a puddle of goo, and they fail to see anything else.

The first hit is “net profits received.” Now, I’m not going to get all pissy about this because, frankly, it’s fair. Now put down the snowball and listen to this from a business standpoint. Unless you’re an author who has sell-throughs of tens of thousands of units, it doesn’t make financial sense to offer royalties on the cover price, because that isn’t what the book actually sold for. The publisher had to discount the book – anywhere between 50-60%.

Since the publisher is doing smaller print runs, say in the five-ten thousand range, their price per unit is smaller than had they printed up fifty-hundred thousand units. This means they’re paying royalties on an artificial baseline (the cover price) rather than what the book actually sold for. This decreases their profit margin. Many strong, solid smaller indie presses pay royalties on net, so while this is a pisser for the author, there is nothing untoward about it because everyone is making money on the book’s actual sale price. In this economy, I know several big publishers who are looking at the issue as well.

Where my red flag goes sky high is over the “minus printing costs.” Here is a delicious opportunity for royalty abuse because those costs are never defined. Go ahead and ask the POD to define those “costs.” I dare ya. Oh, they’ll give you some gobbledygook, but the realities are that those “costs” can be anything from a percentage of actual print costs – which is heinous because the POD is essentially defraying his printing costs by charging the author and hello! this would put them in the vanity arena to “promotion,” “advertising,” and even “office expenses.”

What happens is that the author gets 40% of zip, nada, zilch, bupkis, nothin’, and the publisher gets it all, no matter how insignificant the amount is.

Unless you have a top-flight agent (in which case POD won’t be a part of your vocabulary) or your name will stop traffic, don’t get sucked in by big royalty percentages. Read the entire royalty clause. Better yet, get a literary lawyer. With POD, if it sounds too good to be true, it is. Always.


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