Mark Terry

Sunday, June 10, 2007

Hints & Allegations

June 10, 2007

There's been a fair amount of talk in Book World about Simon & Schuster's recent new contract changes, what some people are calling a rights grab.

It probably is.

Book contracts are an odd thing--probably all contracts are--and S&S has had a reputation for 20 or 30 years (at least, according to various articles and books on the subject I've read over the last 20 years or so), for long complex contracts. It's the publisher's job (read editor, since they are often the face presented to the author/agent during contract negotiations) to get as good a deal for the publisher as they can. It's the agent's job to get as good a deal as they can for their client, the author.

I have yet to see a book contract or even contracts for other writing projects I've had that didn't have something in it that gave me pause. I actually turned down a nonfiction gig for $10,000 because of some of the contract language. It wasn't easy, but I'm glad I did.

Ultimately it's a trap. It's a negotiating ploy, in many cases. Let's throw this out and see if we can get an edge over this author, particularly if they're unagented. Let's claim that "this is a deal-breaker" even though it might not be. It's a game of chicken, let's see who will blink first. Besides, if you expect that during negotiations you're going to give something away, you throw in outrageous things you don't mind giving up, just so you can look like you're being reasonable.

And in my contract?

Well, yeah, there were things my agent and I didn't like. Get a few drinks in any author and ask them if there's anything in their contracts they don't like, damn near all will say there's stuff they don't like. This whole thing can make you feel like you're in a bazaar in Ethiopia haggling over a rug.

Here's the thing, though. Unless you're in business, the only places in the U.S. you're likely to haggle over things are car dealerships and when you buy your house. And even then you might not (I've owned Saturns for years, and they don't do that haggling thing (supposedly)). But people in business who deal with vendors and clients and attorneys and customers haggle (er, negotiate) all the time. It's just part of doing business.

Editor Abby Zidle, over on There's A Dead Guy In My Living Room talks about it this way:

It's generally in everyone's best interest to take the gamble and stay together, forging the beginning of a long career. So most of the time a deal is struck in which the editor feels robbed and the author feels stiffed...and everybody's happy.

I'm pretty sure Abby meant that to be funny, although I didn't actually find it very humorous. I felt it was pretty sad.

But I also felt it was true. It's a reminder that publishing is a business. All too often writers, who don't understand they've just become a business partner, ignore the fact that they are, indeed, running a business. They are a sole contractor providing a service for a company that wants their business. From a bargaining position, unless you're a bestseller, the novelist is trying to negotiate from a horribly weak position. It's a buyer's market and probably always has been. Now that everybody with a computer thinks they can easily cough up a novel, and e-mail makes it even easier to send in a manuscript, editors and agents are deluged with material. Most of it is probably unpublishable, but I haven't noticed where publishers are going wanting for material to publish. It's all coming to them.

Anyway, I have something on my mind and I can't really talk about it here, but it involves contracts and contract language. What's on my mind is not particularly pressing and immediate so I can contemplate this from the comfort of the land of "what if." But I can give you a vague sense of what's on my mind and it's a question every author has to ask themselves:

If the deal sucks, can you walk away from it?

That's a trap, isn't it?


Mark Terry


Anonymous Eric Mayer said...

I suppose it depends on what way the deal sucks.

It would be easier for me to turn down a bad deal now that I've been published. Turning down any chance to get published to begin with would be difficult, and maybe not smart. The opportunity -- even a sucky one -- might not return. I might even have a hard time turning down a lousy contract from a Big Publisher because I'd still like to say I made it to a Big Publisher.

However, I've pretty much decided that there's no significant amount of money to be had out of the sort of things I write (or out of most of what anyone writes) so compensation per se wouldn't be a deal breaker. On the other hand, a deal that looked like it wouldn't really get a book out to a reasonable number of readers would be a deal breaker, and, of course, if a few people buy a book there's some compensation there.

What would break a deal, though, is if I felt I was being robbed, taken advantage of in some way. If a publisher wanted all the rights to something, say. Being published isn't worth being cheated. Anyway, being cheated would suck all the fun out of it.

6:29 PM  
Blogger Mark Terry said...

I suspect it depends a great deal on what you want and expect out of publishing your novel and where you are in your writing career.

And, as you say, it probably depends on what way it sucks.

6:09 AM  
Blogger spyscribbler said...

It's a selfish world out there, sometimes. That's what makes me sad.

Publishing is a weird world. Just writing something, without knowing whether or not you'll be paid for it, strikes me as bizarre.

7:10 PM  
Blogger Mark Terry said...

Fiction in particular, I think, although a lot of musicians who write their own material go through that, too.

I know that in the nonfiction world many, many writers have a "I won't lift my pen unless there's a contract" sort of mentality, and I confess that I'm mostly like that with NF as welll--because I can be. I don't need to write nonfiction on spec, but I used to.

Maybe the same thing goes with fiction. At some point you become successful enough you just talk to a publisher/agent and say, here's the story. My last 2 books (the upcoming ones, Angels Falling and The Valley of Shadows) were sold on the basis of one paragraph synopses.

4:35 AM  
Blogger spyscribbler said...

As a playing musician, I was indoctrinated with that mentality, too. My arrangement with my tiny-pubs is a little more informal, but I clear my ideas with them before I write them, and I'm always certain they're going to buy it. (Before I give them something, I always worry that this is the one where they're going to say "what the heck is this crap?")

I just have to get used to a new way of thinking while I write. It's always been a need-to-make-money thing for me. It's fulfilling and stuff, but ... this way feels like I'm risking my family's budget, too.

7:41 AM  
Blogger Allison Brennan said...

I think Abby is right, though it's a negative way of looking at negotiations. All negotiations are is a series of compromises until two parties can come to a satisfying agreement, which may be walking away.

Negotiations are, by definition, give and take. You give a little, you take a little. Everyone should walk away happy. Maybe not as happy as they'd be if they got everything they asked for, but happy enough.

What's important to remember in negotiations is the big picture. Overall, is the contract giving you what you want. You might not have everything you want, but that doesn't mean it's bad.

There are deal breakers on both sides. Only you know what's a deal breaker for you. You look at the stage of your career, where you've been, where you're going, where you want to be, and decide when (and if) you need to make a stand. Sometimes a contract point isn't great, but it's not worth walking. Sometimes it's worth walking, but you need to know what the plan is (which is why it's helpful to have an agent on the same career page as you.)

Also important to remember is that the publisher also has deal breakers. There are points where they will NOT give in. Those points don't usually come out until there's been a little negotiations, and they'll definitely let you know when it's a "take it or leave it" offer. But they will always give something. Their first offer is never their final offer. But you'll never know what their deal breaker is unless you ask, and they'll never remove an offer once given if you start asking questions. They might say, "This is it," but they'll never say, "Look, we don't like you anymore, we're taking the offer off the table."

It's hard, especially for me, to remember that negotiations are business. It's not personal.

9:47 AM  
Blogger Mark Terry said...

"It's hard, especially for me, to remember that negotiations are business. It's not personal."

Yeah, Allison. Even with my agent, it's hard for me to keep that in mind. My first book to have a contract--with Write Way Publishing, which went out of business before it got published--I negotiated the contract myself (if that's what you want to call it). It really, really pissed me off. She wasn't willing to negotiate on anything even if all you were trying to do was clarify the language in the out-of-print clause. She actually said to me, and I quote: "It's out of print when I say it's out of print."

By the end of that discussion I was ready to kick her in the head. The idea of then turning around and listening to her editorial advice was a real problem (which, as things turned out, was a moot point anyway). Sometimes I think that's the best reason to have an agent. They're a buffer between you and the editor.

10:16 AM  

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