This is a post I did on an Author Group, so I figured I’d repost it here and then expand a little:
First, and most important point – NOT A LAWYER. I don’t even play one on TV.
That being said, I’ve recently had my own run in with a predatory contract (EMP Entertainment) and I wanted to reiterate a few points.
– Read your contracts.
In fact, if you can, read other people’s contracts (they aren’t obligated to confidentiality if they don’t sign it). There’s a reason I created a database for myself.
The more you read, of both good (the SFWA have a bunch of ‘sample’ contracts on their website. Craig has a co-author book with a bunch of good contracts – and he is a lawyer – , etc.) and bad (Writer’s Beware is a GREAT resource); the more you’ll be able to pick at bad contracts just because they’re missing things that other contracts have.
– Get a lawyer. An Intellectual Property Lawyer. It’s important you get a lawyer who works in the industry, because he’ll then be able to compare it to other contracts he’s seen to tell if something is at industry standards at the least. Also, common terminology and clauses and weird little legalese will be things they catch.
Resource of lawyers that you could use: http://www.lauraresnick.com/writers-resources/
Realise that no matter how good you are, unless you’re practising in the field, you won’t catch everything. The US uses case law to intepret contracts, which means that it’s not necessarily what is said on the contract but how it’s intepreted by the courts that matters (sort of. I’m simplifying here. Real lawyers in the Guild, don’t hurt me).
If the contract isn’t completely horrendous, negotiate. Most companies will be willing to budge on clauses. If they aren’t, it’s time to get really worried.
As a business (and you are a business); you have MUCH FEWER protections than an individual. You are considered to be equals to the business you are negotiating with, so you can sign on to bad contracts and have them enforced against you.
If you want to learn more (and I desperately recommend you do):
– Writer’s Beware (https://www.sfwa.org/other-resources/for-authors/writer-beware/) has a ton of resources
– if you are part of an association, many have contract committees. The SFWA has one. They will look of your contract for free and explain what might be off.
I believe the Writer’s Guild might have one. Ditto ALLI. These organisations are meant to help, so they often have experienced people who have seen a lot on their committees.
– Kristyn Kathryn Rusch has a long series of blog posts too – (kriswrites.com) about agents, contracts, gotchas, etc that she’s seen or had sent to her.
There’s a book – https://www.amazon.com/Closing-Deal-Your-Terms-Considerations-ebook/dp/B01MPWQLG1 – that is the same and consolidates most of the free information.
– Study Copyright.You‘ll need to know it to understand aspects of the copyright law above.
– oh and the Passive Voice can be fun to look at too – https://www.thepassivevoice.com/
I’m also happy to talk to people if you send me the contracts. I don’t promise it’ll be fast (I am busy); but one way I get my database of contracts is by looking over others.
But again, Not A Lawyer. Don’t rely on helpful comments. Get a proper lawyer if you intend to sign.
Now, some general things I always look for:
– Term (how long)
– Renewal rates
– Royalty rates and definitions of terminologies (gross, net? Is net defined? How closely defined?).
– Reserves for returns (if any and definition and length for reserve withholding)
– Cancellation rights (for author and publisher)
– Rights licensed (what is defined. What is not. Generally, if a right is not included it is not touched. You can add lines to contracts saying much the same). Sometimes, this get defined to geography, etc.
– Liability clauses
– Any ‘good name’ or ‘moral right’ clauses (i.e. where you have to uphold the good name of the publisher or moral rights cancellation clauses that are ill-defined).
– Channels and any definitions for channels (be careful about this one!)
– Rights reversion clauses (if any)
– Next book or ‘additional work’ clauses (if any). First right of refusal, specified timing, etc.
– Failure to deliver clauses (on publisher and author side)
– Statement timing, delivery, payment period. Oh, and importantly within this – AUDIT clauses.
Am I forgetting anything? I probably am, feel free to add notes in comments.
It’s worthwhile to know all these things, negotiate their inclusion before you get a lawyer, strike out stuff you don’t like, etc. And once you have a contract you’re mostly happy with, bring the lawyer in.
They’ll likely catch things you didn’t (if they’re good).
Then, you negotiate again and once it’s done, then you can sign (if your lawyer agrees).
And before you object that you don’t have the money for a lawyer…
How much would it cost you if you signed away all your rights to your ebooks? To all your audiobooks? For everything you wrote in the future?
If you get a good lawyer and have him review AFTER you’ve negotiated, it can cost between US$300-500 for most contracts. Not a huge amount, especially with the notes they give you.
Compared to what you could lose?
Yeah. Please. Get advice, get help and take care. There are predators out there.
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