By Susan Spann
Today we continue the pre-conference #PubLaw prep for the contract negotiation workshop at Colorado Gold (which I'm team-teaching with Midnight Ink editor Terri Bischoff) with an unusual look at publishing contracts: one that doesn't talk about contracts at all.
(Note: You don't have to go to Colorado Gold to benefit from the concepts we're discussing here - so whether or not you're attending the conference....read on.)
Today, we're talking about negotiation.
Many people understand only the "Zero-Sum" approach to negotiation, which essentially boils down to "one person wins, and the other person loses." Under a Zero-Sum philosophy, every negotiation (or contract) point I "win" is one that the other side "loses." The idea, then, is to win as many points as possible, and force the other side to accept a "losing" position in the final deal.
Unfortunately, zero-sum doesn't work very well for publishing contracts. The reason should be obvious. The more one side takes an "author vs. publisher" or "us vs. them" position in the negotiating process, the more difficult it becomes to set those differences aside and build a business partnership once the deal is signed.
The Mutual Benefit Strategy offers a far more effective method of negotiation for publishing contracts -- and not just because it lays the groundwork for a better relationship after the signing.
"Mutual Benefit Negotiation" is a strategy which focuses on finding not only a "meet in the middle" solution to contract disagreements, but actually finding a place where both sides are better off than they were before.
Admittedly, it isn't always possible to find a win-win solution to every problem. In some cases, only one side can have its way.
A good example is whether or not the contract includes both print and ebook rights. If the author wants to sell both, but the publisher offers ebook only--or, more commonly, the other way around--only one side can prevail and there really is no middle ground.
More commonly, however, there is a place where both sides can "win" and the contract terms can reach a mutually beneficial position.
For an example of this, let's look at translation rights. They don't have to be "all or nothing." If a publisher has an in-house translator for Spanish, or French, or Italian, or regularly sells a lot of translation rights to certain countries, you may be able to negotiate to include only certain languages in your contract.
Another good example is special editions for people with disabilities. Most publishing contracts give the publisher the right to produce or license these editions (for example, Braille versions) with no royalties paid to the author. This is because, many times, the publisher "donates" the rights to these editions and/or licenses them free of charge. As an author, you shouldn't want to deprive disabled people of the chance to experience your books. However, you don't want to give out windfalls, either -- so a compromise position is language which states the publisher can license these editions royalty-free, but that if the publisher does receive financial compensation for the license, that compensation is shared equally with the author. Win-win. The publisher keeps the right to get those editions on the market, and the author gets the right to share in any benefits that arise.
When you negotiate a publishing contract, be clever. Look at the publisher as a business-partner-to-be. That doesn't mean you trust beyond what the publishing house deserves--or that you compromise in unreasonable ways. However, if you can offer creative solutions that leave both parties better off (or at least satisfied with the outcome) you can turn the contract negotiation from a hostile, zero-sum environment into an incubator for the (hopefully long-term) relationship to come.
Again ... this doesn't mean roll over and show your belly. It means be smart, be creative, and be aware that sometimes the best solution to a problem is Option C - which, often, nobody thought about to begin with.
I hope to see you all at Colorado Gold!
Susan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was named a Library Journal Mystery Debut of the Month. The second Shinobi Mystery, BLADE OF THE SAMURAI, releases on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium. You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann).