Are you sick of my contract warnings about serialized fiction apps yet?
Honestly I’m not even sure who I’m aiming these posts at. They go right over the heads of many of the writers who could benefit from them (at least, judging by the emails I receive from writers who’ve read my warnings and still want to know why this stuff is so bad, and clueless Facebook discussions scoffing at me for being such a nitpicker), and for savvier writers, probably aren’t needed. Contract geeks, maybe?
On the other hand, the relatively new serialized fiction app space is shaping up to be a major predator, with dozens of companies aggressively recruiting authors–many of whom are young, inexperienced non-native English speakers–with exaggerated promises of money and exposure, and binding them to complicated English-language contracts that are almost comical in their awfulness.
Popink (parent company INK Universe Limited, based in Hong Kong) looks much like the many other apps I’ve encountered, with large numbers of minimally (if at all) edited novels in various genres, some of which can be accessed for free and others, with “premium” chapters, by subscription.
There’s the usual array of anemic writer benefits: non-exclusive contracts pay a “completion bonus” of up to $100, depending on word count, plus a royalty share; and exclusive contracts also pay a royalty share, plus a signing bonus of $100 upon the production of 60,000 words, a monthly “update bonus” of at most $250 (and only for those who can achieve Popink’s grueling word count benchmarks in less than 25 days per month), and a princely one-time “completion bonus” of $100-$200 for writers who can finish novels of 150,000-300,000 words.
Popink’s non-exclusive contract (which can be seen here) is one of the worst I’ve seen–and that’s saying something. There’s so much to take exception to that I’m just going to discuss the highlights. (Note: in the clauses below, Party A is Popink, and Party B is the author.)
– The use of the term “digital copyright” throughout the contract is troubling.
Here’s just one example:
The language of the contract makes it reasonably clear that the writer is licensing various rights, not the copyright itself. Even so, this is a misuse of the term “copyright”, and I honestly don’t know what, if any, legal ramifications might arise as a result (am I being alarmist here?). This unconventional use of the term is a common feature of serialized fiction app contracts.
– As mentioned, the contract is non-exclusive, and per Clause 6, extends for 5 years after after the work is completed.
That would seem to be better than the 20-year or life-of-copyright contracts I’ve seen. However, the Power of Attorney clause on the last page of the contract says something completely different. Compare and contrast:
So which is it–completion plus 5 years, or life-of-copyright? To put it mildly, that’s not a question you want to be asking when you’re thinking about accepting a publishing contract. Not to mention, by requiring the author to get written authorization in order to exercise rights in the work–as, with a non-exclusive grant of rights, they should freely be able to do, for instance by self-publishing or publishing on another platform–Popink has the power to make this supposedly non-exclusive contract exclusive at will.
You really, really do not want your publishing contract to be internally contradictory. Even without all the other bad stuff I discuss in this post, that should be a deal breaker.
(Requiring authors to grant power of attorney is serious overreach, by the way: such a grant is absolutely not necessary to enable Popink–or any publisher–to publish.)
– The grant of rights is “irrevocable”–you have no right of termination.
Surprise! Not. Almost every app contract I’ve seen is non-terminable by the author.
– You must grant your moral rights to Popink.
Moral rights–which aren’t recognized for writers in the USA, but are important in the rest of the world–include the right of attribution (to have your work published under your name) and the right to integrity (the right to object to any distortion or change that would damage your reputation–note the mention in the clause above of “derogatory treatment”). Surrendering moral rights is a substantial loss of control.
– The grant of rights is super-sweeping.It includes pretty much every right and subsidiary right in existence, including “new works rights”: the right for Popink to create any kind of derivative work “based on, adapting, deriving from, or incorporating elements of the Work (including characters, props, plot, framework or background).” The surrender of moral rights comes into play here: your name would not necessarily be attached to such works–or if it were, and you didn’t want it to be, you’d have no right to object.
You must also give Popink first right of refusal (which Popink calls “exclusive right of priority”) on any related work…
…and you must give Popink the same priority on any re-license of the contracted work, if that re-license is exclusive…even after the contract has expired.
Greedy much? If you don’t comply, Clause 10.1.2 deems you to be in breach, and requires you to pay damages to Popink for “all losses suffered”.
– The author’s income is paid on net profit (another familiar element of contracts like these).
The income split (detailed in Clause 3) sounds sounds good, at 50% of “Net Income” from digital sales and the licensing of various rights, including audio; but per the Definitions section of the contract, what Net Income actually means is “the income portion after costs (including but not limited to channel costs, operating expenses etc.) are deducted from [Popink’s] direct income from operation.”
As with any payment calculated on net profit, this stands to make actual author income considerably smaller than the percentage split suggests. Additionally, without knowing what costs and “operating expenses” actually are, authors have no idea how substantial the deductions might be. Combined with a payment threshold of $100, it’s a good bet that many Popink authors receive extremely infrequent royalty checks.
– Clause 9 levies a series of financial penalties against the author for breach (yet another common feature of serialized fiction app contracts).
Depending on the type of breach, the author may have to hand over 30% or 100% of “all income Party A [Popink] paid to Party B [the author]”. This is somewhat less draconian than other penalty clauses I’ve seen in app contracts, which multiply income by as much as 20 for penalty purposes. But the bottom line is that if Popink judges you to be in breach, you will owe it money.
– As with several other serialized fiction app contracts I’ve seen, there’s “morals” language requiring the author to uphold Popink’s reputation in various ways (Clause 4.2).
The problem with such language is that it’s very broad, and is applied at Popink’s discretion–which offers wide scope for abuse.
As bad as the terms are for writers, they are likely to be not much better for the editors (aka sales associates) who are responsible for recruiting writers and shepherding them through the contracting and creation process.
This is from serialized fiction app iStory, which very unusually has a section on its Benefits page that addresses editors’ compensation. I haven’t seen this anywhere else. Considering how similarly apps operate, it seems like a reasonable bet that such terms are the norm, rather than the exception. (Be sure to read the fine print.)