Tag Archives: Contracts

Honoring Your Contract

By Katriena Knights

One of the most important things you can do is a writer is honor your contracts. I’m not talking about your contracts with your publishers. I’m talking about your contracts with your readers.

Wait, what? Authors don’t sign contracts with readers, do they? So what am I yapping on about this time?

Readers have expectations. These expectations vary depending upon what kind of book you’re writing. Or, in some cases, the kind of book you claim to be writing. Violating these expectations can lose you your readers—sometimes permanently.

Of course this is more true with genre writing than literary. Most mainstream books have some built-in expectations, as well, but they’re a bit more fluid. Still, when you move from writing for yourself to writing to an audience, it’s a good idea to keep those audience expectations in mind. Most of these expectations have to do with the book’s ending.

For example, in a romance, your reader expects a happily-ever-after ending—an HEA—or at least a happy-for-now—HFN. If your romantic couple decides to go there separate ways, or if one dies horribly, your book isn’t a romance. If you market it as a romance and it lacks the HEA or HFN, your readers will discover you’ve violated that contract and probably won’t come back.

Mystery readers expect the crime to be solved, whether it’s a murder or petty theft. The solving of the crime should drive the plot, and the solution should drive the climax. Loose ends might be left here and there, but the main crime should be wrapped up. If you decide to be extra “edgy” and “realistic” and leave the crime unsolved, you’ve violated your contract. (There are mystery writers who’ve successfully published books that don’t wrap everything up, but they were long-time, established authors with a fan base willing to go along for the ride.)

With any book, of any genre, readers expect a conclusion of some sort. If too much is left hanging, plot points are tied up, or characters are left without resolution, you’ll lose some readers. This is why my copy of Trumpet of the Swan fell apart after about ten readings, but I only read Stuart Little a couple of times. Louis got a nicely constructed happily-ever-after, but poor Stuart didn’t get a nicely tied-up ending. I suppose maybe it was appropriate for his story, but I’m still bitter about it.

However, that’s an example where the genre didn’t dictate the ending. It wasn’t a violation of a genre contract, but it didn’t live up to my personal expectations. As a writer, there’s nothing you can do about that, so there’s no point trying. But do keep in mind the expectations of your genre and of your average reader when you’re stitching that plot together.

Juggling Contracts, Part 2: Look for the Language!

By Susan Spann

In month’s #PubLaw post here at Rocky Mountain Fiction Writers, we started a conversation about juggling multiple contracts for rights to novels and other creative works. Over the next couple of months, my posts will continue that conversation, with an eye to helping authors learn to juggle rights successfully.

Step 2 in successful contract juggling is making sure each contract contains TWO vital pieces of language:

- A clear and unambiguous statement of the rights you are licensing, AND

- A clear and unambiguous statement that you have the right to (separately) license and benefit from the rights you retain.

1. A Clear Statement of the Rights You License:

As I mentioned last month, the statement of licensed rights should be clear and unambiguous. It should start off with either the statement, “Author hereby licenses, to Publisher, for [stated term - often "the length of copyright"] the following rights…” and then list the specific rights you’re licensing.

Easy, right? Not so fast.

Read the contract carefully for words like subsidiary rights, additional rights, translation rights and derivative rights – in fact, do a search for “rights” and read carefully everywhere that term appears. Make sure the publisher hasn’t tried to obtain other rights in other paragraphs. It happens, and it happens often — and, for the record, it isn’t “pulling a fast one” – that’s just the way contracts read.

Make sure any rights you don’t intend to license are stricken out of the contract.

If you don’t understand the language, or aren’t sure how to strike the rights you want to retain, make sure you have an experienced publishing lawyer (or agent) review the contract and assist you to make sure you retain the rights you need. You don’t want to find out later that you inadvertently licensed rights you intended to retain.

1. A Statement About the Rights You Retain, and Your Right to License Them Separately (and to Other Parties).

Then, make sure the contract contains this, or a similar, statement: “Author reserves all rights not expressly granted to Publisher in this Agreement, along with the sole right to license and benefit from reserved rights in any manner Author chooses, including without limitation the right to enter into contracts with third parties for licensing and exploitation of said retained rights.”

You’re looking for language that says three things:

1. Any rights not expressly granted to the publisher belong to you.

2. You have the right to license and benefit from reserved rights in any manner you choose.

3. You have the right to license those retained rights to others (“third parties,” in contract language).

In addition, you want to make sure the contract states (somewhere) that you will not owe the publisher anything (or be in breach) if you enter into licenses or contracts to exploit the rights you’ve retained. 

We’ll talk more next month about “sneaky clauses” that might cause trouble in this regard. For now, take a look at the things you need to see–and make sure you’ve got a checklist of things to look for.

And, as always, don’t hesitate to seek assistance when the contract negotiations (or language) get outside your comfort zone. Seeking help now can keep you from needing to hire a lawyer down the line–and legal problems are ALWAYS less expensive when you deal with them in advance.

Have questions or topics you’d like to see covered in future RMFW #PubLaw guest posts? I’d love to hear about them in the comments!

Susan Spann is a publishing attorney and author from Sacramento, California. Her debut mystery novel, CLAWS OF THE CAT (Minotaur Books, July 2013), is the first in a series featuring ninja detective Hiro Hattori. The sequel, BLADE OF THE SAMURAI, will release on July 15, 2014. Susan blogs about writing, publishing law and seahorses at http://www.SusanSpann.com. Find her on Twitter @SusanSpann or on Facebook.

Examining the Elephant: Publishing Contracts, Part 1

By Susan Spann

Autumn has arrived, and it’s time to turn the monthly “legalese” column from thoughts on pitching to talk of publishing deals.

My legal practice focuses on publishing contracts, so it makes some sense to focus on the “terms and conditions” part of the publishing process here. In the months to come, we’ll talk about everything from negotiations to contract pitfalls (and if you have questions, please ask them – I’m glad to help!)

Today, we’re starting with a macro view of the contract: what is it, and why do you need one?

The many new publishing options have changed the “face” of contracts a little. Ask a self-published author about the “contract” and some will say “I haven’t got one, I use Amazon” (or CreateSpace, or Smashwords, or something else entirely) – but the reality is that every published novel has a contract. Sometimes that contract comes in a form that’s titled “Terms of Use” but that’s a contract, nonetheless.

The wide variety of contracts and terms puts me in mind of the old joke about three blind men examining an elephant. The one who felt the tail said “the elephant looks like a rope,” while the ones who examined the trunk and legs compared the beast to a snake and a tree (respectively). Authors with different kinds of contracts may see a different side of the publishing deal, but one thing unifies them all: every publishing deal involves a contract of some kind.

So, What is a Contract, Anyway?

If I offer to publish the books of everyone who reads this blog for a year, is that a contract? If I promise to publish your book because you read this single entry, is that a contract? If I promise to publish “the first good manuscript I read” – is that a contract?

Would it matter if we pinkie-swear? If I offered you money? If I published in electronic formats only?

The answer requires looking at the law.

Many people think of contracts as “agreements” or “promises” to do or not to do something. (Note that the law considers corporations and other forms of businesses to be “persons” who can enter into binding contracts as long as right biological person signs the contract on the company’s behalf.)

By law, a contract is “an agreement which creates legally enforceable obligations.” In plain English, a contract is an agreement you can force the other person to comply with, by means of a lawsuit if necessary.

People make all kinds of promises and agreements which are not contracts because the law refuses to recognize the promises as enforceable. An unenforceable agreement isn’t illegal but it creates no remedies – meaning the injured party has no recourse if the other party won’t perform.

The key, then, is knowing whether your contract is enforceable or merely an “illlusory” promise where the other party won’t have to follow through if he changes his mind.

Generally speaking, a valid, enforceable contract requires five things: an offer, an acceptance, consideration (which has more to do with money than with kindness), proper parties, and appropriate subject matter. 

That’s a lot to take in at once, but let’s break it down a little:

THE OFFER usually needs to be made in writing – either by terms of service or in a written contract created for the author. It needs to describe the terms of the deal in sufficient detail for the parties (and a court) to understand what’s actually being offered and what the terms of the deal will include. Beware: if something isn’t in the writing, it isn’t part of the offer or the deal.

THE ACCEPTANCE occurs when the author signs the contract or clicks “I accept” or “I agree” on a website’s terms of service

CONSIDERATION means “something of value given in return for the parties entering into the contract.” In the case of a publishing deal, this usually means (a) for the publisher, acquiring the rights to publish a work, and (b) for the author, publication and the promise of royalties on sales of the work.

PROPER PARTIES means people (or companies) with the legal authority to enter into the contract. Minors can’t form valid contracts (a parent or guardian has to sign on a minor’s behalf) and authors who enter a publishing deal have to own the rights to the work in question.

APPROPRIATE SUBJECT MATTER basically means the contract can’t be an arrangement to perform an illegal act (like a murder) or otherwise contain illegal terms (like selling the author into. Generally speaking, a contract to publish a book is considered “appropriate subject matter.” Also, be careful: a contract with bad terms (even oppressively bad ones) doesn’t become “inappropriate subject matter” – the general rule is that you can make as good a deal, or as bad a deal, as you are able. Subject matter questions are generally limited to whether the contract involves a promise to break the law. If not, it’s usually acceptable.
You’ll notice the things I didn’t mention. A contract doesn’t have to involve the exchange of money. It doesn’t have to be “fair.” it doesn’t have to promise certain things or guarantee the author money, success, or even publication (Surprise! Read the fine print!)

Makes your head spin, doesn’t it?

Before this series is through we’ll discuss all the elements of a contract, how to make an agreement legal, and how to protect your rights through the contract process.

For the moment, though, we’ll leave it here.

Did you know the elements of a valid contract? Do any of them surprise you?

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Susan Spann is a transactional attorney and former law school professor whose practice focuses on business and publishing law. Her debut Shinobi mystery, Claws of the Cat (Minotaur Books) released on July 16, 2013. You can find Susan online at http://www.susanspann.com, or on Twitter @SusanSpann, where she created the #PubLaw hashtag to provide business and legal information for authors.