Finding the Courage to Walk Away

"Sometimes, the thing you most wish for is not to be touched." 

The quote above comes from the musical Into the Woods and offers a caution that doesn't apply only to fairy tales . . . it's important advice for publishing too.

It took me ten years, and five full-length manuscripts, to find an agent (and get my first publishing deal). During that time, I received a great deal of important advice and information and learned as much as I could about writing, the publishing industry, and the various choices available to me as an author. I wrote, I read, and I dreamed . . . and I hoped, above all, that one day those dreams would become a reality, in the form of published books with my name on the cover.

That dream had been with me since childhood. It burned in my heart like nothing else and remains a burning drive to this day. I love to tell stories. I love writing books. It's who I am at my core - and that means it also makes me vulnerable.

If you're reading this, you're probably vulnerable that way, too.

I often start my workshops on the legal aspects of the publishing industry by saying "charlatans and scammers flourish at the intersection of art and dreams" - and that statement is true. However, something else flourishes at that intersection too ...

... bad deals, inappropriate deals, and deals that an author will later regret.

In some ways, these are even more dangerous than the charlatans, because sometimes there's nothing obviously wrong with the deal . . . it's just not right for the author (or the work) at the time.

Writing is a critical skill for anyone who wants to be an author, as is good business sense, but the third thing an author needs to succeed in the publishing world is the ability to say NO when the deal isn't right.

When people find out you're an author, everyone from your mother to your plumber will be glad to tell you exactly how to run your publishing career. Advice is everywhere, some of it even worth remembering. The problem is, only you can decide when an offer is worth accepting--and you have the right to accept or refuse any offer, even if people around you--including people you trust--think you should make a different decision.

But how do you recognize a deal you should refuse?

The honest answer is a lot like the famous Supreme Court definition of obscenity: you know it when you see it.

On a slightly more practical level, here are some situations when authors should seriously consider walking away from a publishing deal:

1. The deal is really a scam. Do not fall for publishing scams. Learn to avoid them and walk away.

2. The publisher isn't offering industry-standard terms. Traditional publishing and self/author/indie publishing both have standards--the usual, expected terms and conditions authors have a right to expect. If anyone offers you less, remind yourself that you and your work deserve the industry standards at a minimum, and be willing to walk away.

3. The publisher acts like a bully even before you sign the deal. This happens. For real. In business, as on the playground, you have the right to a life free from bullying. If someone tries to make you feel badly about yourself or your work, walk away and hold out for someone who treats you right.

4. The deal doesn't fit your plans (for the work or for your career). Many authors seem to believe that they have to compromise "to get started" or "to get a foot in the door." NOPE. It helps to be realistic. For example, most first-time authors don't get million dollar deals (though it does happen occasionally). That said, if you're willing to write as many books as it takes and you want to hold out for the giant advance, you have the right to do that, and you should never let anyone tell you otherwise, if that's your vision.

5. You don't want to sign. Listen to your instincts. They are generally wise. If something feels "wrong" about a deal--whether it's with an agent, a publishing house, or the printer you want to hire to print your author-published books--have the courage to think the matter through carefully, evaluate the facts, and walk away if you still think the deal is wrong for you.

6. Any other reason you want to say no. It's important for authors to remember: you, and only you, are in control of your publishing career. No matter what you hear, read, or are told by others, at the end of the day, your books and your publishing career belong to you. You get to make the decisions (and live with the consequences). YOU get to say yes or no.

Walking away from a publishing deal may be the hardest thing you ever do in your publishing career. But if the deal isn't right for you, or your work, it's also the best and the wisest thing you can do. The tricky part is: only you can make the decision whether to sign or to walk away, and you'll have to make those decisions one at a time, as the deals come.

Never forget: it's better to have no deal at all than to have a deal you regret, and today's hard "No" leaves you and your work available for tomorrow's better opportunity.

How to Obtain a Reversion of Publishing Rights (At Least, How to Try)

While wearing my publishing lawyer hat, authors often ask me about how to terminate an old (or unprofitable) publishing contract and obtain a reversion of their rights to the relevant works.

Obtaining a reversion of rights can be tricky, and is always dependent on the terms of the contract (and/or the author's relationship with the publisher). 

Normally, the contract states the terms--if any--under which an author can terminate or obtain a reversion of publishing rights, and if the conditions in the contract are not met, the author cannot terminate unless the publisher is willing to release the rights.

However, the fact that a work is under contract isn't always the end of the story.

Here are the recommended steps for authors hoping to terminate a contract or obtain a reversion of publishing rights from a traditional publishing house:*

1. Review the Contact.

In almost all cases, the contract will state exactly when and how (and by whom) it can be terminated.

If the contract allows you to terminate under the current circumstances, follow the procedures in the contract to request a termination and reversion of your rights. (Note: if you only want to revert certain rights--for example, foreign translations--follow the procedures for requesting those rights only.)

If you have questions, or don’t understand the contract, get help from a publishing lawyer or a literary agent.

2. Ask the Publisher (Nicely) to Terminate the Contract and/or Revert the Rights.

By law, the parties to a contract can always modify or terminate their agreement by mutual consent, even if the contract doesn’t say so.

If the contract doesn’t grant you the right to terminate, you can still ask the publisher to terminate the contract and revert your rights voluntarily. Some publishers will agree to termination, or reversion of certain rights, when sales have dropped so low that keeping a work in print creates more obligations than benefits. Make sure your request is polite and professional—regardless of your relationship with (or opinion of) the publisher.

As my grandmother used to say, you catch more flies with honey than you do with vinegar.

3. Consult a Publishing Attorney or Literary Agent.

If the contract doesn’t grant you termination rights and the publisher refuses your polite request for termination (or reversion of certain rights), seek the advice of a publishing attorney or agent. Sometimes a third party can help negotiate solutions that authors cannot obtain on their own behalf.

However, be aware that in most cases your right to terminate a contract and obtain a reversion of publishing rights is limited by the terms of the agreement. Unless the publisher breaches the contract, you may have no choice but to wait the contract out.

Which brings us to one final, forward-looking step:

4. Ensure all Future Contracts Give You Unilateral Termination Rights and Out of Print Clauses Tied to Royalty-Bearing Sales.

Admittedly, this doesn't help you with the old agreement, but it will ensure you don’t end up in the same situation again.

Tying out of print status to royalty-bearing sales, and giving the author the unilateral right to terminate if the work goes out of print, helps ensure that authors can retrieve their rights if a book stops selling (and stops a publisher from keeping works perpetually “in print” simply by listing ebooks on Amazon).

When it comes to publishing contracts, the best defense is a good offense—negotiating  unilateral termination rights and reversion clauses into the agreement before you sign.

*Note: These tips apply only to traditional publishers, and in situations where the publisher is NOT in breach of contract. If the publisher IS in breach of contract, consult a lawyer or literary agent immediately.

Note also: Author-publishers should always be able to terminate any contracts or publishing arrangements at will, subject to payment of fees owed and other pre-existing legal arrangements. If you self-publish, make sure your contracts give you all the power when it comes to termination.

How to Spot (& Avoid) “Pay to Play” Publishing Contracts

In recent months, I’ve seen a resurgence of some terrible publishing “offers” that business-savvy authors need to recognize . . . and avoid.

Although these “deals” are legal if an author signs them, every time I see one of these contracts, I'm reminded of my law school contracts professor’s favorite saying: “You can make as good a deal, or AS BAD A DEAL, as you are able.”

And authors who accept these contract offers are making a very bad deal indeed.

Let's take a closer look:

BAD CONTRACT #1: “WE PUBLISH, YOU PAY”

This contract requires the author pay for some or all of the publisher's costs to produce the book. Often, the costs are not listed in detail up front, leaving the author on the hook for undisclosed (and often enormous) sums. When costs are listed, they often exceed the amount the author would have to pay to self-publish the work - meaning the author could hire a professional cover designer, developmental editor and copy editor . . . and still not pay as much these contracts require.

The publisher, not the author, should be responsible for all the publishing costs in a traditional publishing deal.

There are some legitimate "hybrid presses" that share the publishing costs with the author (and generally pay MUCH higher royalties--at least 50% of gross income--to offset those shared expenses). However, the legitimate ones are vastly outnumbered by the ones who simply want to make a buck off an unsuspecting author's dreams--so always have a hybrid-style contract reviewed by a publishing lawyer who works for YOU before you sign.

Beware: sometimes “pay to play” terms also lurk in the royalty language. A contract which pays royalties on “net receipts” and defines “net” as “amounts received by the publisher less the costs of editing and publishing the Work or less the Publisher’s actual costs to publish and sell the Work” is requiring the author to pay for the publisher’s costs. This doesn’t require payment out of pocket, but it’s still an inappropriate "pay to play" arrangement. 

Any time a "traditional" publisher tries to shift the costs of publishing the Work to the author—either up front or in the royalty share—the publisher is altering the traditional model and asking the author to take on an unfair share of the risk.

Legitimate hybrid publishers are always up front about the nature of the arrangement and the fact that the author isn’t being offered a “traditional deal.” Anyone who tries to tell you that the “author pays” model is a “typical New York contract” or a “traditional publishing opportunity” is trying to take advantage of your ignorance.

BAD CONTRACT #2: “WE PUBLISH, YOU BUY”

A publishing contract should never require the author to purchase copies of the finished book. Most publishing contracts permit the author to purchase finished copies, usually at a significant discount from the cover price. Some contracts restrict what the author can do with those discount copies (for example, some contracts prohibit their re-sale). However, traditional publishing contracts don’t ever require the author to purchase books from the publisher at any price.

One publishing “offer” I see a lot requires the author to purchase several thousand copies of the book and to pay the publisher for them in advance. The author must pay the publisher tens of thousands of dollars up front, but give the publisher full control over cover art, editing, and the content of the finished work. Don't do this. Ever.

Do the math: if the author buys five thousand copies of the finished work from the publisher at $16.95 apiece, how many copies does the publisher have to sell someone else to make a profit? The answer, of course, is NONE—and these publishers often make no effort to sell their books to anyone other than the authors.

NEVER sign a contract which requires a mandatory purchase of the work. Legitimate publishers just don’t work that way.

BAD CONTRACT #3: MANDATORY PAID MARKETING & "AUTHOR TRAINING" 

A few publishers offer unsuspecting authors a “traditional publishing deal” – where the publisher pays publishing costs and industry-standard royalties on sales – paired with a “mandatory marketing and author training contract” that requires the author to pay the publisher (or an affiliated marketing agency) thousands of dollars for marketing and "author training" services.

This is not a traditional publishing deal, and it’s not a good deal, either.

Once again, the author pays thousands of dollars out of pocket in return for unspecified "marketing" and "training." Even if services are specified, they usually include only things the publisher (or its “marketing arm”) can do in-house, like writing press releases, promotional Facebook posts, and other things authors can easily do themselves. Here, too, the publisher doesn’t need to sell any books to make a profit, and authors usually end up paying far more than the value of what they receive. 

Fortunately, authors can avoid bad contracts like these by following a few simple guidelines:

1.  Never sign a "traditional" contract that requires you to pay the publisher money (for publishing costs or royalties). 

2.  Never sign a contract that lets the publisher recoup its publishing costs before calculating your royalty share.

3. Never sign any contract without having it reviewed by an agent or a publishing attorney.

4. If you suspect your publishing deal isn't fair, or if something seems "not right"--be willing to walk away. 

Save your money and your work--because having no publishing deal at all is always better than having a deal you regret.

Beware of Hidden Dangers in Short-Form Publishing Contracts

Authors have a lot to watch out for when reading a publishing contract, but one of the most common dangers is actually invisible: the protections typically missing from short-form contracts.

Standard publishing contracts run 10-30 pages, in little type, with wording that ranges from “difficult” to “possibly penned in Hieroglyphs.” Most authors don't know how to approach the dense legalese, or find it uncomfortable and intimidating.

By contrast, many authors see a three-page form and think “Hooray! A contract that makes sense!”

Beware: that way be dragons.

Publishing contracts are long because they address a wide range of legal rights and issues. “Copyright” is actually a group of rights, and each of them must be addressed in a proper contract. Failure to deal with issues creates dangerous ambiguities and loopholes, most of which cut in the publisher’s favor in short-form contracts. (This is because the short-form contract deals with rights as a bundle rather than separating them, and often they simply license the entire bundle to the publisher.)

Sometimes, publishers try to claim their short-form contracts offer authors a “better deal” than “traditional, complex forms.”

Again, beware.

These shorter contracts are often missing a number of critical provisions that authors don’t realize they need to include for their own protection. When a problem arises, the author goes to the contract, only to find that the “friendly short form” doesn’t address that issue (or, when it does, the publisher prevails).

Here’s a list of some important provisions many short-form contracts don’t include: 

1.  Proper reservations of subsidiary rights to the author. The shorter the contract, the more likely it is to simply grant the publisher “all rights” in and to the work “in all forms, formats, and territories.” Publishers don’t need “all rights” to a work. Most publishers need print, ebook, and sometimes serial rights. Everything else is open for negotiation. At a minimum, those other rights (often called “subsidiary rights”) should be separately listed and addressed in the contract language. One-size-fits-all rights language is not the best option for the author, and something authors should be watching for with an eagle eye. 

2. Author termination rights. Publishing contracts often last “for the life of copyright,” but that’s actually only the contract term if the contract isn’t breached or terminated earlier. Good contracts give the author several ways to escape if things go badly, including the right to terminate (and revert all rights) if the publisher fails to publish within a stated time, goes out of business, breaches the contract, or fails to sell at least a specified minimum number of royalty-bearing copies in a stated period of time. (Each of these termination rights often appears in a different paragraph--look for all of them in your contract!) Short form contracts generally fall woefully short on author termination rights. 

3. Sales Statements. Each royalty check should be accompanied by a sales statement detailing  relevant information about the number and format of books sold and returned during the sales period, as well as any reserves being held against future returns. Not surprisingly, short-form contracts often skip over sales statements—and unwary authors often forget the importance of receiving this documentation until the first (unexplained) royalty check comes in...or doesn't.

4. Audit rights. The author needs the right to audit the publisher’s books and records relating to the work at least once in every calendar year. Again, this is often missing in short-form deals.

5. “Out of Print” status tied to royalty-bearing sales. Short-form contracts often omit the author’s “out of print” termination rights altogether ("whoops…") or tie “out of print” status to “availability” – which usually keeps the work in print as long as an ebook version is offered anywhere for sale.  

Note: this list is not exhaustive. There are other important provisions which short-form contracts often omit, but this list is enough to demonstrate the dangers of short-form contracts. Sometimes, publishers try to claim these clauses “aren’t needed,” or that authors can trust them to “do the right thing.”

SHENANIGANS.

It’s true that publishers and authors should be able to trust one another. However, it’s also true that good fences make good neighbors, and good contracts make for good partnerships—in publishing, as elsewhere. Contract law says that a promise which isn’t contained in the contract does not exist as part of the deal. (There are exceptions, but you should never rely on exceptions.)

Never, ever sign a publishing contract—especially not a “short-form” deal—without obtaining a professional opinion from an agent or a publishing lawyer, to ensure the contract offers adequate protection for your legal rights.

 

Understanding Your Ebook Rights

With a new year upon us, my #PubLaw for Writers guest posts here at the RMFW blog will focus on helping authors understand and protect their legal rights. Today, we're kicking it off with a little more about ebook rights--what they are, and how they function in a publishing contract.

Ebook Rights are Normally Addressed in a Contract's "Grant of Rights" or "Primary Rights" Paragraph. 

One of the first paragraphs in a publishing contract is normally titled "Grant of Rights" (or sometimes, "Primary Rights").

The Grant of Rights paragraph often mentions many different rights, all of which belong to the author as part of the copyright in the work. In the contract, the author grants the publisher a license (legally defined as a "right to use") the enumerated rights.

Normally, the "primary rights" include the rights to publish, distribute, and sell the work in print and ebook formats. Sometimes, the primary rights include a few other rights as well--and we'll look at them in the months to come. (Today, it's all ebook, all the time.)

Note: Ebook-only publishers shouldn't be asking for print rights too, but print publishers normally do request ebook rights.

The Contract Should Never Give the Publisher "Ownership" of Any Rights or Copyrights.

A license is not the same thing as "ownership"--the contract should never give the publisher ownership of the copyright, or any other ownership rights in the work.

Instead, the contract should give the publisher a license--normally "exclusive" with regard to print and ebooks--that lasts for the term of the contract (which may or may not be the same as the copyright term--more on that in a future post). 

The New Frontier: Enhanced Ebook Rights.

Most authors know what an "ebook" is (if you don't...you may have been living in a cave for the past few decades). However, many authors don't know the difference between "ebook rights" and "enhanced ebook rights."

An "enhanced ebook" is an ebook containing not only the text of the work, but also various kinds of supplementary content designed to enhance the reader's experience. Examples of enhanced ebook content might include pop-up maps (such as maps that appear when you click a linked phrase or place name), musical scores or other "background sound effects" to accompany the reading, hyperlinks that open web-based content, and similar added features.

Enhanced ebooks are rare, but several startup companies now offer enhanced ebooks for sale, either as independent products or as an "enhanced overlay" for a publisher's existing ebook content.

Enhanced Ebooks in Publishing Contracts:

Although the standard ebook clause, which normally includes a grant of rights for the publisher to produce ebooks "in any method of ebook production now known or hereafter developed," many publishers are now including the words "enhanced ebooks" as another specific piece of the grant of rights (so the contract now reads: "ebooks and enhanced ebooks" rather than just "ebooks").

By granting enhanced ebook rights to the publisher, the author surrenders his or her right to: (a) determine whether or not an enhanced ebook is made during the term of the contract (the publisher, as the holder of the license, gets to make that call), (b) control the enhanced content, and (c) request a higher, or different, royalty rate on the enhanced ebooks--normally the standard ebook rate would apply.

While some publishers may not be willing to negotiate on enhanced ebooks, since this format might compete with the standard ebook, authors should be aware that this is actually a separate right from ebooks, and that it may be possible to negotiate the grant of enhanced ebook rights.

For example: sometimes the publisher will allow the author to keep enhanced ebooks altogether; if not, perhaps the author can negotiate approval rights over any enhanced ebook content, and possibly also a higher percentage of royalties on the enhanced version.

The Final Decision About Your Enhanced Ebook Rights Belongs To You.

The number of enhanced ebooks on the market now is fairly small--but the same was true of "regular" ebooks, back in the days when e-readers were new. Like any publishing right, only you--the author--can make the business decision whether or not to grant the right to a publisher, and there is no "right or wrong" answer--it depends on your personal business decisions and the other terms of the deal. However, before you sign a publishing contract, be sure you know where ebooks and enhanced ebooks fit in, that you understand the terms being offered, and that you're making the decision you believe is best for you and your work.

Have questions about this or other publishing contract terms? Pop into the comments and let me know!

 

 

Free Your Writing Soul, and Write Better as a Result

By Tina Ann Forkner

My debut novel released in 2008 from a legacy publisher. Sounds like a dream come true, doesn’t it? And it was, for a while. When my next novel came out in 2009, it looked to some people like I was on the publishing journey every aspiring writer wanted. When 2010 came and went and I didn’t have a contract, I didn’t worry too much. I was tired, and besides, plenty of writers have gone a few years between books and it didn’t hurt their careers. Maybe 2011 would be my year, but that year came and went too.

Forkner_Waking Up Joy2012 and 2013 were years of several near misses, a few promising projects that fell through before a contract could ever be signed, and several all-out rejections. And now here we are in 2014 and Waking Up Joy has finally released. Yes, that’s five years from my last book, people. Five. So why did it take so long?

The answer is complex, but soon after my second novel was published, the book world was doing somersaults in the midst of huge economic and technological change. Somewhere in the middle of all the publishing craziness when my early novels were releasing, I lost sight of what mattered most. With publishers’ budgets shrinking, I needed to work harder to let people know about my books and it was no longer about writing.

All the pressure made me feel as if blog posts, tweets, and status updates were the keys to selling my books, and I didn’t like it. I felt as if I were toting a box of my books around on my back hollering to anyone who might be listening, “Here, buy my book! PLEASE!” I felt pathetic. I felt fake. I felt like a fraud, but I did it because a lot of people had invested time in my book. I wanted to be a good author, but when multi-published authors like myself were no longer guaranteed publishing contracts, I felt discarded and hurt by the industry. Not knowing when publication would come again, I asked myself why I was still busting my backside for no pay while I had bills to pay and my family stood outside my office door asking if I could come out and play.

I wanted to play again, so I decided to stop taking the pursuit of publication so personally, and I slowed down. Fortunately, I had a great agent who believed in the book I was writing and I knew he would continue to shop my proposals. In the meantime, I had three beautiful kids I’d shown off at both of my book launch parties who were growing up faster than the book industry was changing, and I decided to focus on what meant the most to me. I wrote, of course, but I did so at my own pace. I kept a half-hearted online presence, just in case I ever got published again, but overall, I laid low. Let me tell you, scaling back for a while was the best decision I ever made.

Slowing down might sound like a career killer to some writers, and sometimes I wondered if it would be, but I was willing to risk it for my own sanity, and for my family. It’s not as if I didn’t write during the breaks I took (I took more than one). I did, but on the days I opened my manuscript to revise and fine tune my story, I wrote slower and better. Sometimes, I didn’t write novels at all, and those were the times I gave to my family, to myself, and to my soul. I also went back to work, which I highly recommend for all writers. It’s good to get away from your desk to be around human beings, and I don’t have to tell any of you, there’s nothing like getting paid.

So, if you’re reading this and you know for a fact you don’t need a break, then that’s great. We are all on a different mile of this writing journey. But if you think you’re burning out and publication has become more important than the beautiful act of writing, or worse, more important than your personal well-being, then you might consider scaling back. Personally, it has worked for me.

It’s funny how when I slowed down and focused on the act of writing instead of on the frenzy of publication, the writing flow came back. Now that I’m releasing a new book, I’m back in the race, so to speak, but this time it’s not really a race, and I’m ready.

~~~~~~~~~~~~~~~~~~~~~~~~~

Tina Ann ForknerTina Ann Forkner is a Women’s Fiction writer and the author of the new novel Waking Up Joy from Tule Publishing Group. She is also the author of Rose House and Ruby Among Us from Random House. Tina’s new book is set in Oklahoma where she was raised, but she makes her home in Cheyenne, Wyoming where she is a substitute teacher and lives with her husband, three teenagers, and two spoiled dogs.

Learn more about Tina and her novels at her website. You can also find her on Facebook, Twitter, and Goodreads.

“Negotiation” Is Not a Four-Letter Word

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 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).

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.

***

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.

***

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).

When You Shouldn’t Finish What You Started

By Katriena Knights

One of the cardinal rules of being a writer is to finish what you start. After all, if you don’t finish those stories, you won’t have anything to submit or publish, right? Right. But there are times when it’s best not to finish or revisit an unfinished or unpolished piece.

Read moreWhen You Shouldn’t Finish What You Started

THE SALE: Then and Now

By Mary Gillgannon

I just contracted for the sale of my twelfth book. (I’ve published three independently.) The experience was very different from when I sold my first book over twenty years ago. Including the “signing”, which consisted of creating an electronic signature with a password.

How have things changed?

Submission: Back then, I didn’t yet have a computer, so when an editor at the Colorado Gold (yay, RMFW) asked me to send her “the whole manuscript”, I had to print it out, which involved inserting 400+ individual sheets of paper in my word processor, basically a typewriter with a memory, and then patiently waiting as the machine typed it out page by page. I then boxed it up, took it to the post office and paid a substantial chunk to mail it.

This time I sent my manuscript as an email attachment, not quite a one-click process but pretty close.

Response: Back then, I got a letter with an offer in six months. That actually wasn’t an atypical response time. I once got a rejection letter for a manuscript I’d submitted eighteen months earlier.

This time, an editor responded to my query within a week, and two weeks later I got the offer.

The money: When I sold my first book, my editor had just started acquiring for a new line and I had a tough, hard-nosed agent who knew how to negotiate. She managed to get me an advance just barely in the five figures. Given that the first offer was for $2,500, I was over the moon.

This time the advance is… nothing. These days, lots of small publishers don’t offer advances. Instead, I get 40% of the download price of ebooks and 7% of print. So, unless I’m very lucky (and suspect I used up all my luck on my first sale), it will take me years (or never) to make as much on this book as I did twenty-some years ago.

Distribution: My publisher back then printed about 70,000 copies. That sounds very impressive, but be aware that my book was only readily available in stores for about five weeks (“The shelf-life of a banana,” my editor used to say.) For another year or so it was available to order, but after that the only copies anyone can buy are used copies, for which I get no royalties.

Today, my book will be available until… who knows. Unless there’s some internet catastrophe and/or the world ends, my story will be out there indefinitely. On the other hand, every ebook is like that, so in a few years, there will be millions and millions of them available. How do you stand out or get noticed in those circumstances?

Sales: I sold about half of my print-run back then. Not enough to earn out my advance, which did not endear me to my publisher.

This time, I can keep earning money for years and years. Even so, unless the book really catches on, it will take me a long while to earn as much as I did with my first book twenty years ago.

Marketing: My first publisher didn’t do a lot of marketing and promotion for new authors, other than sending out ARC’s to the two romance magazines around at the time. But they did give me great covers, and because they had good relationships with dozens of small distributors all over the country, my books were available at supermarkets and discounts stores as well as most bookstores.

Today, most smaller publishers expect authors to do much of their own marketing. Since I suck at social media, my only hope is that because I have thirteen other ebooks available, all under the same name, some readers will stumble onto this one. Sheer quantity does seem to help sales.

The joy: Back then, I really thought I’d made it. Now I know that unless you’re a top bestseller, there’s no way you can ever feel secure about your career. Fads and trends move quickly and what’s popular one month may not be the next. But after twenty-plus years, I appreciate more than ever how fortunate I am to make money doing something I love and having my stories read by readers.