(If you’re a regular reader and are feeling some deja vu at the title of this post, it’s because I’ve published it before, in a slightly different form. I’m updating and re-running it because I’ve gotten so many questions about these issues over the past few months.)
Several years ago, a now-defunct literary magazine called The Toast gained notoriety by demanding that its writers surrender copyright. In the widespread discussion that followed exposure of this author-unfriendly policy, I was struck by the number of comments from writers who seemed to think that a bad contract clause was not so very awful if (pick one) the publication was great; the people who run it were great; the bad contract clause was not always enforced.
That’s all very well. But this kind of thinking is exactly how writers get screwed: by making assumptions about a publisher’s intentions, by letting their emotions overrule their business sense, and by forgetting that, in the author-publisher relationship, the publishing contract is the bottom line.
These issues are as relevant now as they were years ago, if not more so. I hear all the time from writers who’ve been offered seriously problematic contracts and are using various rationalizations to convince themselves (sometimes at the publisher’s urging) that bad language or bad terms are not actually so bad, or are unlikely ever to apply. For example, I recently evaluated a contract with multiple questionable terms, including net profit royalties and a life-of-copyright grant without adequate provision for termination and rights reversion; the writer shared my concerns with the publisher, which responded with a long explanation for why none of it was actually a problem. The writer chose to sign the contract.
Here are my suggestions for changing some potentially damaging ways of thinking.
- Don’t assume that every single word of your contract won’t apply to you at some point. You may think “Oh, that will never happen” (for instance, the publisher’s right to refuse to publish your manuscript if it thinks that changes in the market may reduce your sales, or its right to terminate the contract if it believes you’ve violated a non-disparagement clause). Or the publisher may tell you “We never actually do that” or, more cagily, “We’ve never actually done that” (for example, edit at will without consulting you, or impose the termination fee that’s the price of getting out of the contract early). But if your contract says it can happen, it may well happen…and if it does happen, can you live with it? That’s the question you need to ask yourself when evaluating a contract.
- Don’t mistake “nice” or “responsive” or “professional” or even “crazy about my work” for “author-friendly.” Remember, the lovely, enthusiastic editors you deal with when you submit your work probably didn’t create the contract (they may not even be fully aware of its provisions). It’s a sad truth of the industry that outwardly wonderful publishers can have awful contracts. Don’t let your warm fuzzy feelings push aside your business sense.
- Don’t make assumptions about what contract language means. If you don’t understand the meaning of a clause, or aren’t sure about its implications, don’t guess. Get advice from someone qualified to provide it. Easier said than done, I know, but if you’re a member of a professional authors’ group, free legal or contract advice may be available to members, and Writer Beware is also willing to provide experience-based–not legal, we are not lawyers–contract commentary. Publishing contracts are specialized documents: if you decide to seek legal advice, make sure you choose an attorney who specializes in copyright and intellectual property.
- Don’t rely on your publisher’s assurance that objectionable contract language won’t be enforced. Your publisher may be telling the truth–at least, up to the point that they give you the assurance. But even if they aren’t just trying to get you to shut up and sign, circumstances may alter (what if management changes? What if the publisher sells itself?) and internal policies may shift. Oral or written promises that contradict or aren’t reflected in contract language offer you absolutely no protection or guarantees (especially if your contract contains an entire agreement clause, which specifically invalidates any prior promises or representations). Never forget that by signing a contract, you are giving your publisher the full legal right to enforce it.
- Don’t accept your publisher’s claim that contract language means something different from what you think it means. This is a response you may receive if you attempt to negotiate changes, or bring a troublesome clause to your publisher’s attention. Your publisher may be correct: the misinterpretation may be yours. But your publisher may also be unscrupulous or ignorant (many small presses don’t properly understand their own contract language). If your publisher’s explanation doesn’t sound right, don’t just take their word for it. Get a second opinion.
- Don’t let your publisher convince you that asking questions is a bad thing. Dodgy or incompetent publishers don’t like pro-active authors, and may try to blow them off by claiming that asking questions is unprofessional, or ungrateful, or something similarly bogus. But asking questions is your right. Walk away from a publisher that discourages you from exercising it.
No contract is perfect. You should always be able to do at least some negotiation. But even under the most favorable circumstances, you’ll probably be giving something up. You may even decide to swallow an objectionable clause because of a great opportunity (I don’t know of any writer, including me, who hasn’t made this decision on occasion). If you do decide to sign a contract with unfavorable language, though, do so in full understanding of the possible consequences–not in ignorance, or assumption, or fear of annoying the publisher by being too inquisitive.
More contract-related posts to help you identify bad clauses and other concerns:
– Editing Clauses in Publishing Contracts: What to Watch For
– When Your Publishing Contract Flies a Red Flag: Clauses to Watch Out For
– Publishing Contracts 101: Beware Internal Contradictions
– A Contract Clause to Beware: Claiming Copyright on “Publisher’s Content”
– Does the Bankruptcy Clause in Your Publishing Contract Really Protect You?
– Signing Away Your Rights: Arbitration Clauses in Book Contracts
– The Importance of Reversion Clauses in Book Contracts
“We’ve never actually done that”, “It won’t be enforced” – well then, it shouldn’t bother them to take it out then, should it? And if it does – then you know that line was bunk.
Re “If somebody sues you or the publisher for something you wrote, you have to indemnify them against a settlement, including paying their legal fees.” I don’t think that’s necessarily reasonable. Supposing an edit that the publisher forces on the writer causes an actionable tort, why should the writer be liable?
Secondly, indemnification clauses should be completely unnecessary. “somebody sues you or the publisher for something you wrote”, is something that could be underwritten with insurance, and the premium would make little difference to a big publisher.
I used to write novels for fun. But recently because of financial issues, I thought of monatising them. Which website or app is better for chapter by chapter posting? I read few of your articles and became confused on which one to choose. Which one provides better conditions? Please do tell me
Given the high turnover in publishing, the editor who acquires your manuscript and the publisher who reassures you about contract language are highly likely not to be working for the company anymore by the time you have a contract dispute.
Also … option clauses should be as limited as you can make them, and should include time limits so that you are never sitting around with your career on pause waiting for them to respond to your option manuscript.
I once took a class from a writer who said she got her first book contract vetted by a lawyer, and she proposed changes in the contract. The publisher (a major NY house) wouldn’t make a single change; they told her to take it or leave it. She was a debut author without an agent, and had no leverage, and wanted to be published, so she took it. That story really made me appreciate my agent.
Another commenter here mentioned the indemnification clause, which is the one that really gives me nightmares. It’s one more example of why I’m starting to see publishing–even professional, authentic, non-scammy publishing–as an exploitative industry.
I’ve signed many contracts with major houses, so let me add some do’s and don’ts.
1) Don’t give away foreign or subsidiary rights or even a % of such sales; they’re yours.
2) if it’s not in the contract, add that once the book is out of print for 6 months, or the publisher (who will technically and selfishly keep it in on-demand print just to spite you) has sold fewer than 100 copies in that time, all publishing rights revert to you. Similarly, if they don’t publish it at all within the contracted time (unless it’s a “work for hire”) all publishing rights revert to you.
3) Do not sign a clause that says if you turn in a complete ms and they decide they don’t like it, you have to repay the advance. They can only claim a refund if you turn in nothing. IOW, If you’re paid hour advance in 3 parts (on signing, on submission, on acceptance), if they don’t accept it, you only forfeit the 3rd payment and keep the rest.
4) Do not give them more than 30 days after you turn it in to decide if it’s “acceptable” or to ask for editorial revisions. Similarly, no more than 30 days to accept it after you turn in any asked-for revisions . Otherwise they can hold you (and your time and money) up for freaking ever.
5) Do not sign a clause that says you won’t get any other of your work published untill they’ve published the one under contract. And don’t offer them more than “first refusal” on your next book.
6) The indemnification clause. It’s standard no matter how famous you are (or how poor). If somebody sues you or the publisher for something you wrote, you have to indemnify them against a settlement, including paying their legal fees. First, be sure to caret in tne word “reasonable” before any of things you have to indemnify them for (eg reasonable attorney’s fees) and they should similarly indemnify you.
7) You should get at least 15 free copies of tne published book.
Oh, gosh. Thank you. Give up my copyrights? Argh. Only if they hemorrhage money into my bank account.
Contracts can be redacted with lines through the parts that one does not agree with, and initial those parts. The other party may then accept or decline.
Thank you for this very valuable information.I have printed it off and added it to my personal files.
It’s like falling in love all over again, isn’t it?
As an addendum to point number six: Publishers first line of defense in deterring questions is “Nobody has ever asked about THAT before.” It may be true, but it’s irrelevant in any case and it’s an effective tactic to get a writer to shut up. It is true that many authors sign contracts without reading them, which means they never even see the problematic language.
Excellent point. I’ve seen that exact response to author questions.
During COVID, someone posted a link to an online magazine looking for fiction to boost everyone’s morale. I sent a flash fiction story to them and they accepted (it was non-paying and in this situation, I was okay with that). Then they sent the contract. Full stop. I read it three times to make sure I understood what I was seeing. They did not state anywhere in it what rights they were buying. I finally wrote to the editor and asked. He said, “We’re just publishing it online. We’re not buying rights.” So I thanked him, but said I was withdrawing the story. He was fine and it was done.
Contrast with one from about 20 years ago. It was for charity. It wound up commented on, believe it was Angela Hoy’s site. My article was accepted by the editor, and the publisher sent the contract. There were immediately several problems. The first is a typo in the letterhead. Also some odd typos in the contract; we were told by the editor to just correct it on the contract. Off we go. A few months later, we hear that the publisher is having a meltdown because the editor had a store with the same name as the anthology. It actually wasn’t, and wasn’t similar (given the topic, a store with the same name would have been problematic). Since the editor wouldn’t change the name of the store, the publisher dropped the book like a hot potato. My best guess now: they were inexperienced. The typos in the letterhead should have been obvious flag that I didn’t catch. Very likely they ran into financial trouble and suddenly we all had stories we couldn’t do anything with.
I’m also going to say this.
I have worked with more than one new, enthusiastic publisher who has thanked me for calling out a bad contract clause. I got a couple of publishers to add a year’s best exemption to their (otherwise very reasonable) exclusivity period because they simply hadn’t thought of it. Another new publisher pulled some kind of weird contract off the internet that referred to authors as “employees” and were shocked when I told them the potential BAD legal consequences of that one word. They changed it.
Calling out a bad clause doesn’t always mean you lose the contract, and if it does, you just dodged a bullet. It can mean you help the publisher, the other writers, and everyone wins.
It’s great when a publisher is willing to admit and correct a mistake. But I have to say, if a publisher isn’t able to recognize bad contract language until it’s pointed out, it really is not a good sign, because it suggests the publisher is lacking the kind of basic knowledge you really want a publisher (especially a new one) to have.
In other words, even if a publisher is willing to change or correct bad contract language, you really need to think about what it says about the publisher that it would offer bad language in the first place. Should have included that in the post.
This is honestly some great advice to internalize for life in general. I can’t tell you how many employers and people I’ve let take advantage of me because I thought that the fine print was a formality and wouldn’t be enforced or didn’t apply. They always seemed so reasonable in conversations… until they weren’t.