Tag Archives: #PubLaw

Forget the Money: Show Me the Contract

By Susan Spann

This September, I’m co-teaching a workshop at Colorado Gold with Midnight Ink editor Terri Bischoff. The workshop, titled “Contract Law: Where You Can Make a Difference,” is intended to offer advanced-level instruction on which publishing contract clauses are (and are not) negotiable.

In preparation for that, my guest posts between now and Colorado Gold will offer some entry and mid-level information about the contracts process, to help authors get up to speed for the information Terri and I will present at Colorado Gold.

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For many authors, obtaining a publishing contract is a lifelong dream-come-true.

It doesn’t matter whether you publish traditionally, through a self-publishing service like Amazon or CreateSpace, or with a hybrid publisher who gives the author significant control over things like cover art and pricing.

Getting your novels into print is both the fulfillment of a dream … and also the start of a business endeavor.

Smart authors remember to treat it as both.

No matter which publishing route you use, you must have a written contract. Copyright law requires one when rights are licensed on an exclusive basis (which is the case with most publishing contracts), and no smart author would ever publish a book without some writing governing the terms of the publishing deal.

In the case of self-publishing venues like Amazon, CreateSpace, and others, that writing is often the online Terms of Use.  Authors should treat those terms of use like a contract–albeit a nonnegotiable one, since website publishers generally will not change any terms of those contracts on an individual basis. Even so, online terms of use have been held just as binding as written contracts–so beware.

Many authors make serious contract mistakes because they allow emotion to get in the way of business sense. Don’t be that person.

When presented with a publishing contract (or preparing to self-publish your work), remember:

1. The financial terms (royalties and advances) are important, but NOT AS IMPORTANT as the sum of all of the legal terms in the contract. Don’t let royalties or advances blind you to the other legal terms.

2. Read the entire contract carefully, and get experienced legal help with anything you don’t understand. This help might come from an agent or an attorney — but it should always come from someone not affiliated with the publisher. The publisher may or may not be honest–but publishers have a conflict of interest when it comes to explaining your legal rights. It’s always more expensive to try and break a contract after the fact than it is to find out what the contract says up front.

3. Remember that contracts are legally binding documents — and that ONLY the actual words in the contract govern your legal relationship with the publisher. Emails, telephone calls, and other promises don’t mean anything if they’re not included in the contract. In some cases, a court may even prevent you from introducing evidence that “outside promises” even existed. Treat the contract as if it’s the only document that matters, and the only thing controlling your relationship with the publisher–and then make sure that everything is included.

4. Be wary of ANY contract which doesn’t comply with industry standards. In particular, beware: nondisclosure clauses (which prevent the author from talking about the publisher in public or on social media), non-competition clauses preventing the author from publishing ANY other works of any length without the publisher’s permission, a total lack of termination options for the author, and “out of print” clauses tied to inventory or “on sale status” rather than sales figures. These aren’t the only warning flags, but a contract which contains one or more of these must be approached with caution (and a lawyer in your corner).

These aren’t the only things to beware in your publishing contract, but they’re a decent start. Next month, we’ll take a look at some more contract pitfalls to avoid.

In the meantime – keep treating your writing as a business and remembering that, regardless of your publishing path, YOU are the one in charge of your publishing career.

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Susan SpannSusan 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).

Taxes 101 for Authors*

*Note:  If you haven’t figured out why I picked today to talk about taxes, you probably need this post more than you think you do… 

Most people in the United States work for someone else, as employees or independent contractors. (And, statistically, most people are employees.)

Most writers have “day jobs” to help support their writing careers.

For those who are self-employed, business owners, or primarily independent contractors, the tax obligations of a writer are probably already familiar. For those whose primary work experience comes as an employee, however, making money from writing means it’s time to think outside the W-2.

WRITING INCOME IS SELF-EMPLOYED INCOME

U.S. residents (and foreign citizens living abroad who pay taxes in the United States) will not receive a W-2 (report of wages earned by employee) from the publisher at the end of the year. Independently published authors won’t get a W-2 from the distributions sites through which they sell their books (for example, from Amazon). Instead, an author receives Form 1099 – report of income other than wages, salaries or tips.

People who receive Form 1099 are considered self-employed or independent contractors by the IRS, which is relevant because people in those categories must pay quarterly estimated taxes during every calendar year. As soon as you start making income from writing, you must calculate and pay estimated taxes too.

WHAT ARE ESTIMATED TAXES AND HOW DO I PAY THEM?

Four times a year, on the 15th of April, June, September and December, authors and other self-employed people must estimate the taxes due to the IRS and their state of residence (if the state has an individual income tax – some don’t) on income earned during the previous calendar quarter. On the due date, the author (or contractor) must send a check for the estimated tax amount due (if any) to the IRS (and the state, if appropriate) along with the relevant estimated tax forms.

If you fail to pay estimated taxes on time, or fail to pay enough, the IRS and/or state may assess a monetary penalty against you.

The obligation to pay estimated taxes often comes as a shock to authors who previously worked only as employees or whose employers withheld taxes from the authors’ paychecks.

BE PREPARED: ORGANIZE YOURSELF FOR ESTIMATED TAXES

Don’t incur a penalty because you were unprepared! As soon as you (a) sign a publishing contract or (b) self-publish your first manuscript:

1. Find out what you need to know about paying estimated taxes. Get the necessary forms and mark your calendar. If you can’t figure it out on your own, attend a local workshop or talk to an accountant.

2. Set aside a portion of every royalty check or periodic self-publishing income to cover your tax obligations – don’t anticipate having enough left over from then-current income when the payment comes due.

3. Don’t forget to document your deductions! Authors may be able to deduct certain costs, including some expenses associated with research, writing, and publication. Consult an accountant or tax advisor to learn which ones, and don’t forget to save and mark receipts to document deductions.

I’m not a tax advisor, and this post should not be taken as tax advice. Consult a qualified accountant or other tax advisor before making decisions on tax-related issues.

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Susan SpannSusan Spann is a California publishing and business attorney who also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month. Her second novel, BLADE OF THE SAMURAI, releases July 15, 2014. Susan’s legal practice focuses on publishing law and business. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium. You can find her online at her website, http://www.SusanSpann.com, and on Twitter (@SusanSpann).

Juggling Contracts, Part 3: Beware the Sub-Clauses!

By Susan Spann

Last month’s RMFW #PubLaw post talked about contract language authors want to see when juggling multiple contracts for different types of rights.

This month, we’ll take a look at the other clauses authors need to watch for.

Even contracts which seem to address only limited rights sometimes contain additional terms that impact sub-rights licensing and limit the other contracts the author can sign without a publisher’s permission. Here’s an overview of the most common:

1. Sub-rights paragraphs. Check the contract’s sub-rights paragraphs against your list of rights you intend to sell. Make sure you’re giving away only the rights you intend. Be careful, because the “grant of rights” paragraph doesn’t always contain all of the rights language. Many contracts contain sub-rights language in other places, farther down the agreement.

2. Licensing and assignment rights. Many contracts have separate paragraphs authorizing the publisher to sub-license additional rights. Be careful to ensure this doesn’t reach beyond the scope of the rights you intend to grant, and make sure these paragraphs specifically state that the publisher can’t license or sell rights beyond those “expressly granted to Publisher in this Agreement.”

3. Intellectual Property Ownership Provisions. Some publishers try to “grab” rights in the copyright and ownership sections. Read carefully, and ensure that you retain full ownership to all rights in the work (except for the ones licensed to the publisher, of course), and that your contract specifically states that you can benefit from those rights without owing the publisher any share or licensing fee.

4. Competitive Works Provisions. Many contracts prohibit the author from publishing or licensing “competitive works,” defined as works which might damage the market for the work referenced in the contract. Be sure these provisions have carve outs for derivative rights and sub-licensing of the other rights you intend to exploit. In fact, the contract should expressly state that the author’s exploitation of reserved rights is not a violation of this provision.

5. Option Clauses. Beware the lurking option clause that casts too broad a net. If a publisher takes an option, restrict that option as much as possible. For example, if you’re licensing publication rights to a novel, the option should be for “Author’s next book-length work of fiction in the same series only” and should not include derivatives, spinoffs, and short stories or novellas.

As you can see, the job of juggling rights becomes more intricate as more publishers and rights become involved. I recommend that authors who want to juggle multiple contracts have an agent or an experienced publishing attorney at their side, and that the author hires professional help before the first contract is signed.

Juggling rights requires careful planning and attention to detail, as well as a solid understanding of legalese and contract law. Don’t go it alone. The rights–and the profits–you save will be worth the trouble.

*As always, be aware that this column is general business advice, and not intended as specific legal advice to any person. All authors should consult an experienced publishing attorney before signing contracts or compromising their legal rights.

Have questions about this or other publishing legal topics? I’d love to hear from you in the comments!

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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.

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.

Do You Know How to Juggle … Contracts?

By Susan Spann

Last week, someone asked me if I’d ever written a post about the legalities of contracting with multiple publishers (or publishers and others) for various forms and formats of the same creative work. 

In simpler language: “What do I need to know before I license print rights to one publisher and then license audio, or translation, or film rights (to the same work) somewhere else?”

Today we’re starting a discussion of that very topic. It’s a complex one, so we’ll come back to it for the next few months, at least.

I’ve mentioned before that “copyright” includes a bundle of different rights, including print, ebooks, translation to foreign languages, TV and film rights, audio rights, apps and gaming, braille, and many more. Until and unless an author licenses some or all of those rights, the author owns and can control them all.

Sometimes, a publisher wants to contract for more than one kind of rights. Some publishers take only one or two. We could write an entire book (and many blog posts) about the decision whether or not to license multiple rights at once–but for now, I want to focus on what happens when the author has the chance to split the rights among different publishers or companies.

IF YOU WANT TO HAVE MULTIPLE CONTRACTS, PLAN AHEAD.

The author needs to plan for multiple contracts from the very beginning–meaning BEFORE he or she even signs the first one.

Publishing contracts (and film, TV, app and gaming contracts also) always contain two clauses:

- A clause which states that the author cannot enter into any contract which would violate the terms of the contract (s)he is signing, AND

- A clause in which the author warrants (a fancy legal word for “promises”) that the current contract doesn’t violate the terms of any other existing contract or agreement involving the author and this work.

Do you see the issue?

If the author gives away too many rights in the first (or any other) contract, or doesn’t make sure that each contract allows the author to dispose of the remaining rights in any way the author chooses, the author can end up trapped and unable to license additional rights, sometimes even if those rights weren’t expressly included in the first contract.

BEFORE YOU SELL RIGHTS TO YOUR WORK, MAKE A LIST OF THE DIFFERENT CONTRACTS YOU HOPE TO OBTAIN 

Create a list (or a spreadsheet) containing all of the rights you might want to license. This might include:

Leave space so you can write in the name of the publisher (or company) to whom you license each set of rights.

In addition to keeping your publishers straight, this list becomes your “rights review checklist” every time you prepare to enter a contract. Make sure each contract names and licenses only the rights you want to license to the company in question. Be clear during negotiations: let the publisher know in advance that you’re offering only certain rights, and that you intend to license and exploit your other rights in other ways.

You’ll also need to ensure that each publishing language contains some important language protecting your rights … but that’s the topic of next month’s #PubLaw post here at the Rocky Mountain Fiction Writers Blog.

So tune in next month for the next installment!

In the meantime, if you have questions about this or other publishing legal issues, please feel free to ask 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.

 

Don’t Get Caught in the Royalty Net

By Susan Spann

My last guest post here at the RMFW blog took an overview look at publishing rights, with a focus on the “Big Four” – Exclusivity, Geography, Translation, and Formats.

Today, we’re taking a look at royalties - specifically, at royalty calculation and the contract language which bases an author’s royalties on “gross” or “net” sales proceeds.

Royalties are the money an author receives from a publisher on sales of the author’s work.

The amount of the royalty usually varies by format, with typical percentages averaging 9-10% on hardcover sales, 8-9% on trade paperbacks, 5-6% on mass market (sometimes also called “rack sized”) paperbacks, and 25% on ebooks.*

Many contracts also contain “escalation clauses,” which increase the percentages once sales pass a stated numerical threshold.

When the author receives an advance, the publisher pays the author a lump-sum payment (sometimes in several installments) which is credited against the royalties due on future sales. When authors receive an advance, the author receives no royalty checks until the author’s royalties on actual sales (less returns) exceeds the advance amount. 

At first glance, royalty calculation seems pretty simple: sales price multiplied by the royalty percentage equals royalty due … right?

Not exactly. You need to read (and understand) the fine print in your contract.

Publishing contracts calculate royalties in one of two ways:

Gross royalty calculation (sometimes phrased as calculation on “list price” or “price received”) means the author’s share of sales is based on amounts the publisher receives, with no deductions (except for returns, severe discount sales, and review copies, as well as a couple of other standard situations where royalties are never–or almost never–due). A gross royalty clause calls for calculation of the author’s royalties based on the publisher’s list price or the money the publisher receives on sales, without deductions for publishing costs or other costs incurred by the publisher. This is the best form of royalty for the author, and the one an author should try to insist on.

Net royalty calculation means that the author’s share of royalties is based on some amount less than what the publisher actually receives. The contract language will use the word “net” or specify that the publisher can deduct certain sums or expenses from the sales proceeds before calculating the author’s share. In cases where the publisher insists on net royalty calculation, the author must insist that the contract specify exactly what expenses the publisher can (and cannot) deduct before calculating the royalties due to the author. Unspecified “net royalty” clauses are dangerous for the author, because the publisher can reduce receipts (and therefore the author’s royalties) by deducting all kinds of costs that the publisher should normally bear.

Remember: in traditional publishing situations, the publisher–and the publisher alone–bears the costs of producing, distributing, and marketing the books. The author does not and should not share those costs.

The language to watch for reads: “Publisher will pay Author X% of Publisher’s net receipts (or net profits) on sales of the Work.”

Paraphrases of this language are equally bad.

When a contract uses the word “net,” or allows the publisher to deduct sums other than taxes and shipping added to the purchase price (meaning taxes and shipping paid by the purchaser over and above the price of the books) authors should, at a minimum, be wary. If changing the contract to gross royalties isn’t an option, and the author still wants to go through with the deal (there are reasons to make such a choice, but only after consultation with a trusted agent or attorney) the author must ensure that “net” is thoroughly and specifically defined and that publisher deductions are based upon “actual, documented” costs – not estimates or undocumented “costs.”

Not all net royalty contracts represent blatant attempts to defraud the author – some reputable publishers do use them – but authors must be very careful about agreeing to royalties based on net, and should never do so without professional advice.

One final word about the term “net” – in recent months, I’ve seen a couple of publishers’ contracts which use the word “net” but define the term in a way that actually represents a gross royalty calculation. Unless you’re well-versed in publishing legalese, you might not be able to tell the difference.

The best way to ensure your rights are properly protected? Find an agent or an attorney you trust and never sign a contract without professional review and advice.

*(Note: these numbers hold if you’re published by a New York publishing house. Digital-only presses, POD publishers, and small independent houses may (and usually do) vary.)

Have questions about this or other publishing legal issues? Please feel free to ask in the comments – I’m glad to help!

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 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.

 

Do You Know Your (Publishing) Rights?

By Susan Spann

The grant of rights to the publisher is among the most important (and trickiest) terms in a publishing contract. Although the paragraph itself is seldom long, it’s often connected to several others, not all of which are obvious during an initial read.

Regardless of the length or complexity of the terms, it’s critical for authors to understand the rights the contract grants to the publishing house.

The most expansive (and most commonly requested) rights provision grants the publisher “exclusive, worldwide rights to publication and distribution in all languages and in forms and formats now known and hereafter developed.”

Although short, the quote above contains the four primary factors authors need to consider in any grant of rights:

1. Exclusivity. Rights granted “exclusively” to the publisher cannot be granted to or utilized by anyone else (including the author) for the duration of the contract (which normally lasts for the term of copyright in the work, unless termination language in the agreement gives other options). It’s normal (and not abusive) for publishers to want exclusivity. The publisher is investing time and money in your work, and deserves to profit from that effort (as do you!). Just make sure the publisher has the resources to exploit the rights granted in the contract. A small, U.S. only publisher may not need exclusive worldwide rights. Exclusive North American (or U.S.) rights may suffice. Then again, it’s difficult to publish ebooks effectively without the right to sell them on the Internet, and Internet sales often cross borders.

2. Geographical Reach. Since the publisher will normally want exclusivity within its territory, pay attention to the manner in which that territory is described. Options include “worldwide” (formerly “throughout the universe”) or any lesser territorial boundaries the parties agree upon. U.S. rights are different than North American rights – so pay attention and be sure to ask if you have any question about the geographic and territorial descriptions in the contract.

3. Languages. The contract should specify what languages the publisher’s rights include. Contracts which merely state “exclusive, worldwide rights” are generally deemed to include all languages. If you intend to grant only English-language rights, the contract must say so. If the publisher wants a more extensive grant of language rights, be sure the publisher has the capacity to translate accurately and distribute in those markets. A poor translation is sometimes worse than no translation at all. On the other hand, you shouldn’t refuse foreign language rights to a publisher with a proven track record and the capacity to translate and market your work abroad.

4. Forms and Formats. Most publishers will request “all forms and formats”  - author, BEWARE. Does this include film, TV, and gaming too? It shouldn’t. Those rights aren’t tied to a publisher’s right to publish the book in print and ebook formats. Make sure your publisher has the capacity to act on all of the formats you grant, and that you don’t give away formats the publisher doesn’t need or deserve. It makes little sense to grant print rights to an e-only publisher – and is equally nonsensical to refuse e-book rights to a major brick and mortar house. Be aware that “all forms and formats” now includes mobile devices and potentially also app, gaming, TV, film, merchandising, and many more. A specific carveout is required if you want to retain those rights.

There are other factors that merit additional consideration, too, and which may appear less commonly in publishing deals. These can include film and TV rights, editing, the use of outside “co-authors” and/or editors, and several other issues. These often take a back seat to the “big four” we discussed today, but they remain important, and we’ll take a look at a few of them next week.

The “right” clause depends on many factors – there is no “one size fits all” – so be vigilant and pay attention, and make the right business decision for you and your book.

Today’s big take-away lesson is this: pay attention to the grant of rights, and know what rights you’re agreeing to give your publisher. A proper grant of rights lays the foundation for a positive, long-term business relationship between the author and the publisher – and that, of course, is good for everyone.

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 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.

Knock Your Pitch Out of the Park!

By Susan Spann

Since I’m doctoring pitches one-on-one at the Colorado Gold Conference in September, it seemed natural to start my posting here on the RMFW blog by looking at pitch construction.

I’ve got two guest posts between now and Colorado Gold, so here’s Part 1 of a 2-part series on “How to Build a Winning Pitch Pitch”

Now, there are many ways to construct a pitch, and I don’t claim my way is the only one. It is, however, the one I used when pitching my debut Shinobi mystery, CLAWS OF THE CAT, and the one I use when helping other people pitch.

Winning pitches do one thing: they make a listener want to read your book.

Always keep that goal in mind. If your pitch does not intrigue, it fails, regardless of its contents. You start constructing a pitch by culling four elements from your work. We’ll look at those elements today and then, on September 19, we’ll put them together (just in time for the RMFW Conference!).

1. Who is the protagonist? Describe him (or her) with 1-2 adjectives.

For example: a ninja detective.

2. Who is your active antagonist?

The active antagonist is the person, place, or thing the hero is fighting against for most of the novelthe thing that creates “the stakes.” This might or might not be the same as the antagonist the hero ultimately defeats or reveals, especially in a mystery novel, because unlike a synopsis, the elevator pitch does not reveal the ending of the story.

3. Stakes! (Preferably, through the protagonist’s heart).

Note that I haven’t asked about where the hero started the journey, how many quirky talking teapots (s)he meets along the way, or why there’s a pregnant emu at the turn from Act 2 to Act 3. For purposes of your pitch, none of that is important.

Having trouble with stakes? Try to answer the question: What does your protagonist have to accomplish before “the end,” and why will the world fall apart if he or she fails?

Answer it in one sentence or less. If you can’t, you might need to revisit your plot.

In my novel, the stakes are clear: a ninja detective must find a killer in three days time, or the ninja, his Jesuit friend, and a lovely young geisha will die. In addition, the death of the priest will plunge Japan into war with Portugal.

Those are stakes.

Stakes can be personal (death, financial ruin, homelessness, exile) or large-scale (war, natural disaster, the end of the world). Many novels feature both. A novel without stakes is boring, and a pitch which doesn’t reveal the stakes won’t pique a listener’s interest.

Which brings us to the fourth and final element of the pitch:

4. High Concept.

High concept is premise. It’s what makes your story unique. In a nutshell, “high concept” is a concept with mass appeal that you can sum up in one sentence or less.

The high concept for my mystery series is ninja detective. The high Concept for the movie JAWS is “killer shark.”

Your high concept might not appear in your pitch, but creating the pitch with high concept in mind will always result in a stronger pitch than one which ignores high concept.

Struggling with high concept? Try the “What if” method: summarize your story in no more than 15 words, the first two of which must be “What if?”

Between now and my next guest post on September 19, your homework is to pull these four elements out of YOUR work and get ready to pitch like a pro! Then, tune in for our second installment, in which we discuss transforming your elements into a winning pitch.

Do you have an elevator pitch for your work in progress? Does it utilize all four of these critical elements?

Bio: 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.