Recently, Big 5 publisher Simon & Schuster announced the launch of two adult trade speculative fiction imprints: Saga Press, which will do both print and digital, and Simon451, which will also do print and digital, but will concentrate on digital-firsts and ebook originals. Simon451 currently is accepting submissions from unagented authors.
Simon451 is also running a novel-writing contest for college students. Students submit a synopsis ad the first 50 pages of a novel. A panel of judges will select ten finalists, who will be asked to submit their entire manuscripts. The winner receives a publishing contract with Simon451, a $3,000 advance, and a trip to NY Comicon.
In the past weeks, I’ve heard from a number of writers who are wondering about an apparent rights-grab in the contest guidelines (you can download the guidelines here). The language that’s the source of concern appears in two places. First, on page 2 of the guidelines, where it refers to the initial 50-page submission, a.k.a. the Initial Entry:
Submission of an Initial Entry grants Sponsor and their agents the unconditional, irrevocable, perpetual, worldwide right to excerpt in part or whole, use, adapt, edit and/or modify such Entry in any way, in any and all media, without limitation, and without consideration to the entrant, whether or not such Entry is selected as a winning Entry.
The writers who’ve contacted me worry that this is a rights grab enabling S&S to do anything it wants with their 50 pages, including steal their ideas and give them to others. I frankly think that’s highly unlikely. As one of the USA’s biggest trade publishers, S&S is drowning in submissions; I really doubt they need to pilfer ideas (which, in any case, aren’t protected by copyright law).
A more realistic concern is that this language could empower S&S to produce an anthology of the best entries, without compensation to the entrants–though again, I don’t know how likely that is. Overall, my feeling is that the intent is principally to enable S&S to display contest entries online, and also possibly to archive them once the contest is done. Entrants should think about whether they want their entries archived; but I don’t think they need to fear theft.
What if you become a finalist, though, and are asked to submit your entire manuscript? Per pages 3 and 4 of the guidelines, you are subject to the exact same grant of rights, expressed in identical language. The only difference is the use of the term “Entry,” rather than “Initial Entry,” referring to the full manuscript:
Submission of an Entry grants Sponsor and its agents the unconditional, irrevocable, perpetual, worldwide right to excerpt in part or whole, use, adapt, edit and/or modify such Entry in any way, in any and all media, without limitation, and without consideration to the entrant, whether or not such Entry is selected as a winning Entry.
Now, as I said, I don’t for a second think that S&S is in the business of theft-by-contest. But we’re talking now about full manuscripts, which–unlike excerpts–aren’t routinely posted online before they’re actually published.
I don’t see why, for this part of the contest, such sweeping language was necessary–or why it couldn’t at least have been qualified by limiting the grant of rights to the contest itself (for instance, by adding “for the purposes of this contest” after “entrant”)–even though I would still, in that case, wonder about archiving. In fact, we don’t know what plans S&S may (or may not) have for those ten full manuscripts, or what they feel they need this language to empower them to do. All in all, I personally would be very hesitant to submit my entire manuscript to a contest where submission meant granting the contest sponsor such a vague and open-ended claim on my work.
I’d be interested in hearing from readers with legal expertise. What do you think? Please weigh in.
EDITED 7/16/14 TO ADD: In response to questions from several writers, Simon451 has confirmed that it does not intend to hold rights past the conclusion of the contest. Here’s their exact response, shared with me by one of the writers who contacted them (Simon451’s bolding):
Please note further that S&S has no intention of using any non-winning Submissions except for purposes of the contest.
The goal of the contest is to identify potential new talent and grant the Grand Prize winner a book contract to help [the] Grand Prize winner realize his/her talent. The intent is not to take or use non-winning Entries beyond the scope of the contest.
One wonders why the actual language of the guidelines couldn’t have included this.
Fiona,
That's exactly one of the implications that concerns me for the contestants who submit their entire manuscripts. Practically, I sure that things could be worked out (by asking S&S to provide some kind of reversion statement for non-winning mss., for instance); I find it hard to imagine that S&S has any real, compelling interest in hanging onto contest mss. forever. But it is something you'd have to reveal, and you really don't want to give any agent or publisher an excuse to push you to the side.
Just to note about copyright: there is no such thing as a truly "perpetual" grant of rights. Any grant of rights is limited by the duration of copyright. In the USA, copyright endures for the life of the author plus 70 years–but there's also a provision in copyright law that allows authors to demand return of rights after 35 years.
What happens if after entering this contest and not winning, the manuscript gets picked up by another agent/'publisher?
When you tell them that S&S have
"… unconditional, irrevocable, perpetual, worldwide right to excerpt in part or whole, use, adapt, edit and/or modify such [MSS] in any way, in any and all media, without limitation, and without consideration to the entrant…."
are they likely to still consider you for publication?
"… unconditional, irrevocable, perpetual, worldwide right to excerpt in part or whole, use, adapt, edit and/or modify such Entry in any way, in any and all media, without limitation, and without consideration to the entrant…."
This language is atrocious, and doesn't even set a limit at life of copyright. It allows SS to do anything they want with your work, never returns the rights to you–could potentially allow them to license your work for fan-fic, which is being done now–the list is endless.
As has been said, what they intend isn't the point. It's what they could do if they chose. And if they do choose, it's not like the average author has the money to take on their legal department.
My feeling is that you'd be better off to publish on Smashwords than sign a contract like this.
(Exempting SS of ill intentions, I do hope they read this, and I hope somebody goes back and writes a better contract. This was sloppy.)
You are unagented, or a student, or whatever, you are at their mercy. You play by their rules or you don't play. Why give your stuff away after you slaved over it. That's always been the problem with publishing in general. Except for a chosen few, most writers will always get the shaft because most writers have no bargaining power.
to the above poster…a contract is all about mutual understanding. if you intended to agree to terms the other party did not, or vice versa, the contract is voidable.
I agree with Frances.
IANAL, but it seems like the only reassurance here is that this is a well-known publisher. Without that assurance, this language would be considered a blatant rights-grab, which it is. I think students should avoid entering the contest with any manuscript they hope to see published
i am not a contracts lawyer (although i am a law student- so please do not take my comment as legal advice).
despite the adage, "a contract is a contract, is a contract," certain contract provisions are unenforceable or unlikely to be enforced. for instance, a court will unlikely enforce a perpetual, world-wide, non-compete clause (meaning you cannot sell or offer similar products or services). similarly, a court will not enforce contract terms that unjustly favor a certain party. for instance, you are a salesperson. you offer a product to someone who you suspect lacks the wherewithal to understand the contract terms. the person “unknowingly” agrees to terms in the contract she is unable to honor. the contract/agreement may not be “unjust” in its terms, but a court may deem the contract unconscionable because it puts one party –the salesperson – in an unjustly favorable position. an agreement should be made by two or more parties on equal footing. that is why consideration must be given from all parties in the agreement. consideration is the “leverage” you have for bargaining. for instance, if i agree to walk across the Brooklyn bridge what will you offer me? if the answer is nothing or an amount substantially unequal to the work involved (such as a peppercorn) there is no consideration given, and we do not have a contract. If on the other hand, you offer me a comparable exchange of goods or services for my efforts to cross the Brooklyn bridge, this is consideration, and we have a contract (as long as other parts of the contract are in place, like the “when” and “where” and “how”).
also, a poster mentions altering the contract by including legalese to ensure you receive royalty payments. although contracts can be changed for such purpose, it is not a guarantee the other party will agree to this change. both parties must agree (directly or indirectly) to alterations in a contract. otherwise, it is likely unenforceable.
I wonder what David Vandagriff over at The Passive Voice would have to say about this…
i'm not an author but i post to my blog and thus self publish.
i have legalese written into my blog.
i allow anyone to repost my articles if they link back to the original.
people can quote me, but so far when i commented about the vtech mass school killing, some guy developed the same hysteria and implied i'd be the next vtech killer.
so to protect myself from that kind of libel, i have made the habit of adding to the title (satire) to most of my articles, mainly to notify people that i might be "propagandizing" tongue in cheek, to make a point.
as for this s&s copyright grab, it's for archiving purposes.
if you win the contest, then get a lawyer to write some legalese to ensure you collect a royalty on your published work when the anthology sells.
i'd be surprised if a sci fi writer whose publisher publishes $10 renditions of his work makes a dollar on each book sold.
me, i'll stick to blogspot and google to make a penny or 50 cents a month or less with my blog.
i'm patient. my first $100 will come due circa 2025. :p
I am not a lawyer, though I do read up on US copyright law and I do sometimes consult copyright lawyers. I once consulted one about a contractual offer, where the magazine was offering me a contract and the editor was saying it was fine if I took a certain action the contract did not allow, but she would not modify the contract. The lawyer pointed out that this is meaningless: The publisher can do anything and everything the contract allows them to do, and they get all the rights assigned in the contract (regardless of what the editor told me on the phone). I will add that US copyright law for creators lasts decades after they die. Whatever the publisher intends now, there is a huge amount of time for them to change their minds and make a more ample use of the material, or for them to go out of business and sell the material to someone else who wants to make such uses. The contractual language may well be so sweeping just to allow the company to make currently unforeseen changes in plans. In other words, it doesn't matter what the company currently plans to so, what counts is what the contract enables them to do, what rights you give away in it.