Saturday, March 2, 2013

What's in a contract? Should you sign?

If you choose not to self-publish your book and you decide to go with a publisher, you will have a contract. Contracts can be confusing. There are a lot of words and sometimes it's just too much. Add to that, not all contracts are created equal. There are a few things to look out for when you read over the contract.

1. Perpetuity - what the heck does that mean and how will perpetuity affect you? Perpetuity means for the life of the copyright of the work and then some. So you are looking at your life plus 70 years. Some publishers are including perpetuity clauses in their contracts, and even worse, some agents are too.

I find perpetuity clauses troubling. I don't like the idea of a publisher holding a piece of work for my entire lifetime. As some point the sales are going to slow down. The publisher may decide to pull the book from their website and just have it be dormant. They own the rights to your book because you signed a contract with a perpetuity clause and it's their book to do with as they wish. However, if you had limited the number of years your publisher can hold your book, you could refresh the series and put it up self-published for less cost, thus allowing your new fans a chance to read the work and giving you the chance to redo edits and make some extra money. There are some exceptions that your publisher might include in a perpetuity clause. They could include a clause that forces them to keep the book on sale or the perpetuity clause is void.

With agents it can get even more hinky. If you have perpetuity clause with your agent, they will get a piece of the pie from your work even if you leave the agency. You will always have to pay them a portion of the money you make for that book even if they do nothing.

I've spoken with a few authors about the perpetuity clause and here are their responses.

David Kentner, who writes as KevaD says - No, I wouldn't sign a perpetuity contract. I have one friend who signed away all her future first rights to one publisher, and one who negotiated that type of clause out of a contract.

Silvia Violet says - I would not sign a perpetuity contract. The longest contracts I have ever signed are 7 years and they included print rights. That's about as long as I would be comfortable with someone having rights to one of my stories without a chance to re-negotiate.

Laura Harner says - No, I would never sign a perpetuity contract, and I specifically chose not to submit to publishers who use that as standard practice.

2. Right of First Refusal - why is it important and when is it not.

The right of first refusal usually gives the publisher a set amount of time to look at a second book in a series and accept the work or reject the work. If they don't offer you a contract in a set amount of days, then you may publish the second book on your own or offer it to another publisher.

Make sure there is a set number of days in the Right of First Refusal Clause. If the publisher sets the days further out than 90, I would negotiate that time frame down. That's three months for the publisher to decide if they want the second book. Three months is long enough for them to make a decision.

Somewhere in the Right of First Refusal clause something about your work being released without encumbrances should be in there. Being released without encumbrances is important. You don't want to tie your series to one publisher if they reject your second book. You may disagree with your publisher about the second book's plot. If the first contract you signed for the series book doesn't have something about right of first refusal and releasing the book without encumbrances then your series could be stuck in limbo forever.

Silvia Violet says - I'm fine with the publisher having right of first refusal for a series or books using the same characters. I see why that is necessary for the publisher, but I wouldn't sign if I couldn't publish a book with the same characters elsewhere if it was refused by my publisher. In other words I wouldn't give them complete control over a series.

D.H. Starr says - I think right of first refusal is fine. My reason is because my experience is that when a publisher offers a contract, it's because they get what you're about as a writer. It's like a marriage and the editing process and evolution of the book from revision to publishing is intimate. The characters become as much a part of the editor's life as the author's.

3. Breach of Contract - No one wants this to happen. The language around breach is important to pay attention to. The author has a set of responsibilities to uphold. The publisher has a set of responsibilities to uphold. If either party fails on their end then breach occurs.

Of course, the breach may be unintentional. The author may be a few days late on edits and the publisher may have something happen to their computer system that makes their payments late. Those types of breaches are easy to fix, but what if the publisher breaches and breaches again? If the publisher decides to not pay the author anything, what then? The author can ask for a limit on the number of times a publisher breaches.

Silvia Violet says - At the recommendation of a friend, I will now ask that there be a limit on the number of times a contract can be breached before it is null and void assuming it contains the standard clause of allowing 90 days for a breach to be repaired.

Reading your entire contract is important. If you don't understand the terms then please ask questions. You may be very excited to receive a new contract and think that signing anything is a good deal, but it may not be. Investigate the publisher. Find out what their practices are and above all else, if you feel like something is wrong then walk away. Don't sign a bad contract because you are excited.

Lee Brazil has some good advice about contracts - I don't like contracts in excess of three years. Why? Because I'd probably forget about them long before that time period expired. (And I know that's my memory issues) I also prefer not to tie series and characters to a publisher. I've recently learned that it is best also to ask that a publication date be written into the contract.

Ethan Stone says - It is extremely important to read everything in your contract. I haven't had problems with contracts but I've been lucky because I admit I don't actually read them word for word. For all I know I could've been agreeing to give them custody of my son if I don't sell a certain amount. Actually, I wish that was part of the deal. They can have him.


Cathy Brockman said...

wow this was very interesting thank to you all for sharing your insight

Sara York said...

You're welcome Connie. This is just a little bit, there's always more. Contracts can get confusing.