Ch 7.7 Please Say No to Bad Contracts
Ideas Are Powerful Things
Often what we think is possible limits what actually is possible. A shift in viewpoint can change everything. My thinking about what is possible in publishing started to shift as I watched Hugh Howey's rise as an indie author. It shifted dramatically when I heard he had landed a print-only contract. But the shift wasn't complete until I met him and spoke with him about the industry, about his attempts to change things, not for himself, but for other authors to come after him.
Inspirational people have a way of shifting things. Of getting inside your head and stirring the contents until something new emerges.
The Idea: Bad contracts won't change until we stop signing them.
Obvious, right? Simple, powerful, yet incredibly difficult to even think about doing.
Wait, You're Self-Published! Why Are You Talking Contracts?
I am self-published: very happily so. Yet, self-published authors encounter opportunities to sign publishing contracts all the time. You may think this is some kind of nirvana - someone wanting to publish your work - and it is very nice to have interest, but that doesn't mean (by a long shot) that it's in your best interest to sign that contract.
Earlier this year I said "no" to a bad contract. It wasn't some earth-shaking "big deal" contract. I won't go into the specifics, because there's really no need. You can't throw a rock without hitting a bad contract in the publishing world. They're everywhere. I know more friends who have turned down (or worse signed) bad contracts than I know authors who have signed good ones (although I've helped a couple friends sift through their contracts and negotiate to get better terms, and I'm very excited for those authors). In fact, there's a name for bad contracts: boilerplate. Meaning, decades of publishers and agents having all the power in the agent-author, editor-author relationships has resulted in standard contracts rife with things that are no good for authors.
So, the specifics of my case aren't important. What's important is this: the contract I was asked to sign was a disaster. It didn't even accomplish what the publisher wanted, and no author would sign it, if they knew what it meant. When I attempted to negotiate with the publisher, saying, "Hey, this contract is really kinda messed up. It doesn't do what I think you want, and it's horrible on the author end. How about we change it?" the answer was, "We know it's bad, but we don't really care. We have lots of authors who've already signed this. Please go away."
I was happy to go away, not least because of the response. But this stuck with me: lots of authors who've already signed this.
Know What You're Signing
I'm convinced that there is no way those authors actually knew what they were signing. Or they were desperate and would sign anything. Whenever you're signing a contract, you're tied to that agent/publisher for the duration, like it or not. (I have personal experience on this as well.) Make sure you know what you're signing! Educate yourself on the perils and pitfalls of contracts. Hire an attorney to look over the contract, if you're not sure you understand it. If you don't think you can afford an attorney, get a friend who understands contracts to help. But don't blindly sign something, trusting the other party to tell you what it "means." You will be stuck with it - usually literally forever, as one of the worst contract provisions is terms for the "length of the copyright", which is your lifetime plus 70 years - yes, you're binding your heirs to this contract!
Don't Be Desperate
There's never been a better time to say "no" to bad contracts. The self-publishing option means that you do not have to take a bad contract in order to reach readers. And trust me if your work is good enough to attract publisher interest, it's good enough to find an audience on its own. You don't have to give away your work to a publisher for your lifetime plus 70 years to reach readers. You don't have to accept terms that are "non-negotiable" or "boilerplate." You can say no and walk away, because an as-good and quite possibly better option exists.
Self-publishing is your "get out of bad contract" free card.
Hugh negotiated his print-only contract after saying "no" to three rounds of courting by a host of NY Publishers -because he wasn't negotiating just for himself.
"We (he and his agent) both understood from the beginning that it would likely be against my best interests to take the sort of deal that would be offered (by Big 6 NYC publishers), but we also dreamed of a future where publishers and authors had a different sort of relationship... And so we pursued an impossible dream hoping that the strangeness of our demands (for a print-only deal where he kept his digital rights) might pave the way for future demands from other authors."
That clarity of vision paid dividends for Hugh, even though he didn't expect that it would ever come soon enough to benefit him. But Hugh was a NYTimes bestselling author courted by scads of publishers - what can lowly midlist authors do? Or even worse, authors hoping to be published for the first time?
The Idea: Bad contracts won't change until we stop signing them.
Coming back to this again. The way Hugh affected change is the same way every author can - by saying "no" to a contract that doesn't work well for authors. It won't change things the first time. Or the second. Or possibly the third, fourth, or fifth times. Heck, it might not even change things until the next generation of authors comes along and wants to publish their book. But it can start today, with the first generation of authors who actually have a choice. For whom saying "no" doesn't mean instant-death for their careers.
It's easy for publishers to brush off one or two odd-duck new or midlist authors who actually want negotiate better terms in their contracts. After all, they have legions of other authors who will snap up that contract in a hurry, don't they?
Aren't we just hurting ourselves by saying no?
I don't think so, for three reasons:
1) When an agent or publisher comes back and says, "This is our boilerplate language; everyone signs it," you can say, "Not everyone. Not me." And negotiate from there. Or walk away. The response will be telling about what you're getting into with that person, if you stand up for yourself. How they treat you then is a good foretaste of how they will treat you when you are under contract with them. I helped a friend negotiate with an agent - not only was the agent more than happy to negotiate, the process of negotiation (a respectful back-n-forth discussion of terms and what each is looking for from the contract) helped to strengthen the relationship. This, my friends, is a person/organization/company I would be happy to work with. The one who comes back with a terse, we do not negotiate with terrorists, I mean, authors, response is not going to provide a great working relationship. Note the bad contract above that I walked away from - I was tempted to send a note back to that person to thank them for showing so clearly, up front, why it was better for us not to do business together. (I didn't. Because that would be unprofessional.)
2) Those other authors, the ones waiting to scoop up that bad contract? Check back with them in a couple years and see how happy they are about that decision. I know many (many!) authors who rue signing the contracts they did.
3) I've seen enough serious writers self-publish and do well that I know that's a serious career option. Successful indie authors are in a better position to negotiate with publishers - not just because you've "proven" your success by actually selling books, but because you have steady income from your self-published works. You've demonstrated that you don't need publishers to reach readers. And so, it is much easier for you to walk away from a bad deal. Indie publishing also gives you perspective on how the market works, what you can sell, and the true value of what a publisher is offering.
Publishers Aren't Bad, Just the Contracts AreThis is not to say publishers don't have advantages - they do. Print distribution is an obvious one (although giving up lucrative erights to get print distribution may cost you a lot of money). Reaching a hard-to-reach-with-indie target audience is another (for example, middle grade - although even there, indies are making inroads). Different publishers will have different reach, and how much marketing effort they're willing to put behind an author counts for a lot. Are they a digital only publisher with the same reach you have as an indie? Are they going to be buying endcaps in all the B&Ns and are calling you the next EL James? Those are very different scenarios (although if they want you that badly, the print-only option may be within reach).
I currently have a manuscript at a publisher - one who came to me, interested in my work. I checked with friends who had published with them, polished up my work, and sent it in. I may publish with them, if they decide to offer, and if we can negotiate a contract that is better than what I can do on my own. I have a good understanding of the indie market and what advantages the publisher can bring. This is true for many well-selling indies, and is the bar publishers now have to meet. The smart ones understand this. I believe this is a smart publisher, or I wouldn't have bothered submitting to them.
How To Decide When The Big Pubs Come Calling?
At the very beginning of the Guide, I talk about how first-time authors can decide among all the publishing paths - and I recommend Indie First (see Trad-Pub, Small-Pub, Digital Only, or Indie First?). Once your author career is under way, the equation shifts. Perhaps having one or two books through a trad-pub would have some benefits, diversifying your reach while you continue to indie pub. Maybe one of your books is better suited for that small, literary press that's interested in it. The more accessible the options and the more books you have out, the more difficult it can be to determine the best path. Trad-pub becomes more attractive when publishers are coming to you not the other way around.
This is why its good to have a Mission Statement. It's easy to get wowed by the attention, but if you've already thought through your goals during cooler-headed times, it will help you evaluate the best move now. There are so many possibilities, it's impossible to cover, but here are a few common ones I see:
* Best selling indie book gathers interest of trad-pub; author signs agent to negotiate contract; author sells erights and print rights to publisher - this is probably the most common scenario
*Author has foreign publisher interest; author signs agent or directly negotiates; author sells erights and print rights to publisher for translation, just in that country - this is fairly common too
*Trad-pub notices well-selling indie works, asks for author's future works; author sells erights and print rights to a future work to publisher directly, or leverages interest to acquire agent - less common, but starting to happen more with Amazon imprints, as they are privvy to the data about how well authors are selling
Things to Watch Out For:
* Contract terms that limit what you can indie publish
* Nebulous promises of "marketing" - get that into the contract specifically
Notice none of these are "print only" contracts. For now, that seems to be the province of NYTimes bestselling authors, and then only a few of those. There are indications publishers are pulling back from those kinds of offers, and as far as I know, it's not happening for midlist.
Which is a shame - publishers are leaving money on the table there, I believe.
Changing The System
We can't all be Hugh Howeys. We're not all going to be NYTimes bestselling authors. But we can exercise our option to say "no" to contracts that are bad for authors, not least of all ourselves. And the more of us that do this, the more authors who are inspired by the Hugh Howey's of the world to stand firm and work for change, the more times those publishers will hear the response, "Not everyone. Not me." I'm glad I said "no" to that one bad contract. In doing so, I did my small part for paving the way for better contracts for my author-friends-of-the-future. If I say "yes" to a publishing contract in the future, I may not be at liberty to discuss terms, but you can rest assured that it will be the kind of contract that's good for authors as well as publishers.
My hope is that you will be inspired to do the same.