Closing the Deal On Your Terms: Publishing Contract Negotiation with Kristine Kathryn Rusch

Closing the Deal…on Your Terms

Agents, Contract and Other Considerations

THE BASICS

You’re in business now—whether it’s traditional publishing, indie publishing or hybrid publishing. To be successful, you need to control your own destiny as much as possible. Contracts define your relationships. Contracts define who controls what in the relationship. —From Chapter 1

1. CONTRACT BASICS

Wrapping my arms around a topic this vast is intimidating enough. Often, I will focus on events from 2016 as my hook.

But I realized that I needed to do something right up front: I need to discuss the importance of contracts.

I know to some of you that sounds silly. Traditionally published writers expect to get a contract from their publisher. Hybrid writers expect the same thing, when they have a publisher other than themselves.

Indie writers often have no idea what contracts are or why they’re necessary.

In fact, all three groups rarely think about contracts at all.

Over the years, I have become fascinated with writers’ attitudes toward contracts. Writers are so very cavalier about them. More than fifteen years ago, a former editor of mine (for a major traditional publishing house that has since vanished) told me that most writers she worked with looked at their 25-page traditional publishing contract like this:

The writer closely examined the lines covering the advance, and the advance’s payout schedule. The writer eyeballed the royalty rates, and the writer glanced at the deadlines.

That was it. Out of 25 pages, the writer looked at very little else.

I did not believe my editor. I really believed most writers were not that stupid.

I’m here to tell you now: She was right. Most writers are that stupid. Most writers pay no attention to their publishing contracts at all until some term bites them in the ass. Then the writer tries to figure out how to get out of it, not realizing that they got themselves into it by signing the contract without examining it.

Hybrid writers are learning the truth of that one. Many hybrid writers want to reprint their backlist. In the early days of epublishing, a lot of hybrid writers simply put their backlist titles up as ebooks, only to receive a cease-and-desist notice from the book’s traditional publisher. Writers stopped uploading without permission pretty quickly as the word got out that traditional publishers didn’t like that.

It helped that traditional publishers started epubbing their own backlists.

Indie writers have yet another problem with contracts. Indie writers believe they don’t need any.

Writers in general—traditional, hybrid, and indie—do not respect their contracts. Writers don’t understand contracts, and rather than learning what a contract is and why it exists, writers let “their people” handle the contracts.

For generations now, “their people” are usually their agent and the employees of their agent, which, as you will see in future chapters, is a truly terrible idea. If you want “people” to handle your contracts for you, hire people for whom contracts are a specialty. Namely, a literary lawyer.

But let’s talk about contracts themselves, shall we? Most writers expect someone else to generate a contract. Most writers want their traditional publisher or their agent or their service provider or their mortgage broker or whomever they’re in business with to provide them with a contract. Most writers have no clue that they can generate their own contracts.

Yes, you, traditional writers! You can go to your publisher with your own contract in hand. I personally know several writers who do this. That puts the contract negotiation phase on equal footing. The writer has their 10-page contract; the publisher has their 25-page contract.

The document the two parties end up with is neither of those contracts. It’s something unique to that particular negotiation, and probably won’t be replicated in the writer’s next negotiation with a different publisher.

There, traditional writers, did I just blow your minds? Because it certainly blew mine when I started editing over 25 years ago and some writers provided me with their standard contracts for short fiction. I didn’t know that was possible, because, at the time, I did not understand contracts or contract law.

Indie writers, I know many of you are wondering why you need a contract at all. Technically, in many states in the U.S., you don’t. But in some states, you do.

There are other, more practical reasons to have a contract, and I will get to those after I define what a contract is.

A contract is a legally binding agreement between two or more parties.

As with anything in the law, however, that simple statement above isn’t the whole story. In order for a contract to be valid, it must have all of the following elements:

1. Offer

2. Acceptance

3. Valid (legal and valuable) consideration

4. The parties must intend to enter an agreement with each other

5. The parties must have the legal capacity to act in this matter

6. The parties must give genuine consent to the terms

7. The agreement must be legal

I’m going to start with the simplest things to explain, and then I’ll get to the harder ones.

With that in mind, let’s start with #7.