Things I Wish I Knew: Navigating Publishing Contracts

Woman's hand signing documents

I’m obviously pro-agent. I believe we add huge value to a writer’s career in all areas, but most importantly protecting their intellectual property rights through their contracts. However, sometimes writers get into contract situations without an agent and don’t know what to do. Or, some writers like to learn about the business side of things. This post is for you.

Susan Spann is a publishing law attorney and hosts a Wednesday information session on Twitter called #PubLaw where you can follow along with the hashtag. (Do it!) I’ve been following, and retweeting, her #PubLaw advice for a couple years now and I think you’ll find this edition of “Things I Wish I Knew” extremely helpful on the contracts side of things. I’ve asked her a number of questions about contracts as well as what happens when a writer gets a contract and doesn’t have an agent: what should they do? Read on…

What is the one thing you wish debut authors knew about their publishing contract? 

That they have the ability to walk away if a publisher won’t agree to industry-standard terms, and that both the author and his or her work deserves the respect of a contract that doesn’t abuse or overreach the industry standards. 

Far too often, I hear from authors who signed non-standard contracts—either from ignorance or from a mistaken belief that as new authors they “didn’t deserve” the same protection as more seasoned authors. Not surprisingly, they come to regret that decision, but once the contract is signed it’s often too late to help them. 

Take the time to get professional review of every contract, and have the courage to walk away from any publisher or deal that tries to take unfair advantage—having no contract is infinitely better than finding yourself in the publishing version of an abusive relationship down the line. 

 

If writers don’t have an agent who should look at their contract? 

An agent! (Kidding…) Real answer: an agent or an attorney who specializes in publishing contracts. Publishing deals differ from standard contracts, and not all contract attorneys understand the details of publishing well enough to review a contract for an author. 

I know many authors who secured an agent after receiving a contract offer, and many more who reach out to me or to other publishing lawyers for contract review when the deal comes in. Find an experienced lawyer or agent, and get a professional opinion on the contract before you sign. 

 

What has been the best part of starting your #publaw hashtag on Twitter? What’s the reception been like?

I started the #PubLaw hashtag in the hope that it would be come a resource for authors seeking to learn about publishing industry standards and how to protect their legal rights. In many cases, authors can be their own first line of defense against scams and unscrupulous publishers, but you have to know your rights in order to defend them!

I’m thrilled to see how much #PubLaw has grown since I started the hashtag back in 2010. The response from authors and other industry professionals has been overwhelmingly positive, and it’s wonderful to hear how many authors have been able to protect themselves after seeing something posted on the #PubLaw feed. The work is definitely ongoing—but it’s great to see the hashtag and the people who interact on it with me helping to spread the word about publishing industry standards and authors’ rights.

 

What’s the best online resource for publishing contracts? 

That’s a rough question – there’s a lot of good information out there, but also a lot that isn’t reliable. 

I’m trying to build a solid resource on my blog (at SusanSpann.com/blog, in the #PubLaw for Writers and Contracts categories), and SFWA’s Writer Beware (http://www.sfwa.org/other-resources/for-authors/writer-beware/) and the Writer Beware Blog (http://accrispin.blogspot.com) also have excellent posts about contract issues and regular warnings about scams and dangerous publishers. 

Generally speaking, I recommend that authors depend on online resources and industry watchdogs who have experience negotiating contracts (agents and publishing attorneys) and who offer information that isn’t filled with inflammatory or self-serving rhetoric. Read widely, and use good judgment when deciding who to trust.

 

What are you reading for fun right now?

I just finished Jennifer Kincheloe’s fantastic debut mystery, The Secret Life of Anna Blanc (Seventh Street Books), Kerry Schafer’s fast-paced paranormal mystery, Dead Before Dying (Diversion Books), and a delightful anthology of World War I short stories called Fall of Poppies: Stories of Love and the Great War (HarperCollins).

 The book currently on my nightstand is James Rollins’s The Bone Labyrinth (HarperCollins), and Michael Koryta’s So Cold the River is queued on my Kindle. 

I’ve also got A Brief History of Seppuku and a history of medieval Japanese ninjas on my desk, as research for my fifth Hiro Hattori novel (working title Betrayal at Iga), which I’m currently editing. Research is fun too! 

Thank you so much for asking, and for letting me answer these questions for your blog!

Susan Spann is a California attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and Portuguese Jesuit Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur, 2013), was Library Journal’s Mystery Debut of the Month and a Silver Falchion finalist for Best First Novel. Her fourth novel, THE NINJA’S DAUGHTER, releases August 2, 2016 from Seventh Street Books. Susan is the Rocky Mountain Fiction Writers’ 2015 Writer of the Year, and when not writing or practicing law, she raises seahorses and shares publishing legal and business information on the Twitter #PubLaw hashtag.

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Why You Can’t Quit Your Day Job. Yet.

contract signingMany writers think their day job is getting in the way of their writing and count down the days until they can quit because that big book deal is on the way, right? Wrong, for now.

(I should preface this with: Some writers have the luxury of external support, have modified or flexible work schedules that allows them to time to dedicate to their creative projects. Day job or not doesn’t make you more or less of a writer.)

I’m a fan of suggesting writers keep a job, volunteer, or engage in other intensive hobbies for the following reasons….

Keeping your day job has many benefits:

  • Inspiration via interactions with people other than your family and settings other than your immediate location.
  • Steady income that you can rely on.
  • Routine–it’s never a bad thing to have some structure in your life. Even if that means knowing you can only squeeze in a hour or two of writing every other day.

When you quit your day job you have to get your inspiration from sitting at your writing desk all day, your income will come in crazy spurts and there will be many lows, and you suddenly have no routine and the norm becomes sleeping in and working in your PJs all day.

I’m a big proponent, if you can, to keep your day job for as long as you can. Once your writing income surpasses your day job income and you have a multi-book contract where you can plan out your income for months and years to come then it’s time to think about whether you need that day job. And many writers still keep theirs.

Getting paid in traditional publishing looks like this:

  • Getting your advance paid in thirds (or fourths!): part on signing, part on delivery and acceptance of the manuscript and part on publication (and sometimes 3-12 months after publication). That money, on average, is divided up over the course of 1-3 years. Plus, your agent or lawyer gets some too.
  • Twice yearly royalty statements, but only once you’ve earned out that advance. Royalties go towards earning back the money paid out in advance. So sometimes books earn out and you see that money in a year or two, but sometimes they never earn out. It’s not something you can plan on unless you have a royalty-only publishing deal.
  • Foreign publishers, if you’re lucky enough to get some translation deals, don’t pay quickly. If you get a deal in Italy or Greece you’ll get paid, on average, 8-12 months later then you’re supposed to. Foreign money is always “bonus money.”

My experience with debut authors is that sometimes when they quit their day job before getting published their books start to be about the idiosyncrasy of daily life with their kids or their spouse/partner. When what we need is big idea debuts that are about more than the mundane things of daily life.

Q: Do you look forward to being able to write full-time?

What happens if your book gets cancelled or series doesn’t continue to get published?

contract signingThere are many reasons to have an agent in your corner, but the dreaded book cancellation–or having the plug pulled on your series–is a big one. Your agent will be your shoulder to cry on and help you with next steps.

Unfortunately, it happens and it’s not fun for anyone. This is not legal advice, but some experiences that you might have heard about.

Here are a few scenarios: 

1. Your book gets cancelled before you sign your contract. This is heartbreaking, especially for debut authors. You’re so thrilled to have a book deal. Your agent negotiated the terms and accepted the offer. Next is the contract. However, sometimes things happen in this stage that stop it in its tracks (the publisher gets bought, the editors leaves, the publisher shutters an imprint, you can’t agree on terms etc). This is why agents usually like to wait until publishing contracts are signed to announce deals: to prevent this heartbreak from being too public in case we need to shop it again. But yes, we can shop it around again. Until the contract is signed, it’s nearly impossible to keep anyone accountable without suing them and even then you might not win if you don’t have a paper trail. So instead of taking legal action we dust ourselves off and continue to seek out a new home. You want a book deal because a publisher is crazy about your book (and will promote it with excitement), not because they have to.

2. Your book gets cancelled after you sign your contract. This can be a breach of contract if done without reason, but also could be that someone didn’t hold up their end of the bargain. Did you deliver late? If so, you’re the one holding things up, but because publishing is an art not a science editors are usually okay with this sort of thing (for a few weeks, not a few years!). Being honest is always the best policy. Did you deliver really, really late? Then publishers are less forgiving. If you deliver a year late and it’s not quite the book the publisher hoped it would be (more the case with non fiction) then the project can be cancelled. (I won’t get into the scenario if someone cancels a book without reason. That’s another publishing law issue. Follow Susan Spann on Twitter for more copyright law.)

3. Your series stops after a few books and you hadn’t wrapped it up yet. This scenario is hard to attribute to anything other than low sales or a publisher closing its doors. One is somewhat in your control and the other isn’t at all. Publishers will offer a multi-book deal for a series, but that could be 2 books or 10 books and they’re only required to publish those under contract. If your books didn’t find their audience it’s hard for a publisher to continue to invest in your storyline. It’s purely a business decision and not personal. They signed it up originally because they loved it. If so, you can shop around the rest of your series (which can be hard because the new publisher can’t cross promote easily and it’s hard to find a new audience for something they can’t rebrand) or self publish it.

Publishing is time-intensive endeavour and careers are long. The best thing to do is get sad and get mad (to your agent only) and then learn from the experience and start on your next project. Everyone is trying to make the best business decisions they can–even if they’re not the ones you want to hear.

Feel free to share experiences or concerns in the comments below.

Click here for more on US copyright law. And remember each country has their own rules.

Q: If I am published or have been offered a contract for publication do I need an agent now?

ImageQ: If I am published or have been offered a contract for publication is it necessary to find an agent at this stage? Isn’t an agent’s job just to find you a publisher?

A: An agent does so much more than just match writers with publishers. Yes, you should still search for an agent because you want them to negotiate your contract in the works, future contracts, and be your business manager in all aspects of your literary career. An agent knows, from their experience in the industry, when to push for you and your offer and when to accept. So, just because you got your offer it doesn’t mean the work is over. There is so much to be done.

Agents’ specialties include guiding authors to publication, a career’s worth of knowledge in contract negotiation, editorial advice, rights sales, marketing and social media consulting among solving all the other issues that come up in the publication process. An agent is a liaison between you and your publisher so your agent will cross check your royalty statements, consult the designer on your cover, and all the other things that writers often don’t feel comfortable handling.
Continue reading Q: If I am published or have been offered a contract for publication do I need an agent now?