March 9, 2015

The Minefield of Contract Negotiations

Contracts are not a happy topic for most of us, and writers who don’t know all the many other ways a good agent is indispensible for an author’s career know at least that they’d prefer to have an agent handle contract negotiations on their behalf.

The thing is, contracts themselves aren’t fun reading, but they’re not impossible to understand. I’ve gone through many of them, including of course the one I’ve signed (for Mending Heartstrings). But contracts always come with people on the other side, and somehow, people who are otherwise likely very kind and intelligent, become condescending, manipulative, seemingly dense, or otherwise difficult to deal with. [Obviously, some people are exceptions, but for the purpose of this post, I’m going to focus on this particular subset.]

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For one thing, everyone who hands you a contract wants you to sign it as is. They know it’s already weighted in their favor, and you signing will save them (and their expensive lawyer) time. So they’re going to try to convince you that they’re supremely trustworthy, the contract has everyone’s best interests in mind, and you don’t have to worry about that fishy clause because it’ll never come to pass.

Ultimately, though, if it’s in the contract, it might come to pass, and you better be ready to live with it when it does. All the promises in the world won’t help you if things go poorly, which is when a contract really matters. Many contracts will even include a section that says anything promised, e.g. through email, but not explicitly included in the contract is invalid.

In my personal experience, one person tried to convince me a contract was “fair” to both the publisher and their writers, despite ridiculous clauses such as one which boiled down to: “If we decide we want to take any legal action, and we hire a lawyer, even if we don’t take legal action (much less win), you have to pay for all of our expenses.” Another clause said the publisher would have right of first refusal (an option) on any work the author ever writes relating in any way to the book being contracted — and if they did want to publish the subsequent work, the author wouldn’t be allowed to refuse their offer! Worse, this contract was entirely nonnegotiable. “Take it or leave it, because we promise you it’s fair.” I left it, and I haven’t looked back.

Other people will pretend to be stupid, on purpose (or maybe that’s me giving them the benefit of the doubt). “If you take out this sentence, it means we won’t be able to do X,” even though X is mentioned and treated separately and you didn’t take that separate section out. There’s really no way of looking at statements like this other than idiocy (not understanding the contract themselves) or flat-out lying to get what they want.

All too often, writers are in a rush to sign, too grateful that someone finally said yes, and they don’t want to make waves. But when you’re negotiating a contract, the other person is looking out for the publisher, not you, so the welfare of your book, and you career, is entirely in your hands.

People will lie to you (“bend” the truth), they will refuse to negotiate, they will pressure you by saying it’s “standard” or giving you a very short time limit, they will act like you’re the idiot who just doesn’t understand that fishy clause, and they will basically do anything else they can to ensure the final contract is in their favor. So it’s absolutely critical that you don’t let them get away with it.

Part of the reason they do this is that they know you don’t have an agent to advocate on your behalf, and they know you’re intimidated by the very idea of negotiating with them, risking the offer being pulled. But if you don’t have a trusted agent, you have to know what’s standard and what isn’t, and not just when it comes to royalties. If you sign a clause that means you won’t be able to publish with anyone else for the next 10 years, even if it doesn’t explicitly say that, that’s ultimately on your head.

If you need a jumping off point on contracts, agent Kristin Nelson did a series on the basics of contracts on her blog many years ago, but the information is still very relevant! I did my own explanation of the basics as well. And then there are the tips offered by #PubLaw. If something seems fishy, ask someone who knows, who doesn’t have a vested interest in the outcome of your contract.

While it’s entirely normal to compromise, you absolutely have to understand the ramifications of what you’re signing, and you shouldn’t be afraid to advocate for yourself. That’s what an agent would do, and they would be respected for doing it. Frankly, some publishers resent writers without agents showing a backbone, maybe because they thought you’d be easier to walk all over. But do you really want to work with someone who sees you as an easily manipulated doormat?

Hopefully it goes without saying that you should remain respectful and professional throughout the negotiation process. Just don’t equate professionalism with being a pushover. And most importantly, if something in the contract will be bad for your career, or for the one book, or for your sanity, and the publisher isn’t willing to negotiate that clause, don’t be afraid to walk away. It’s worse to sign a bad publishing agreement than not to have one at all — yet. Because if one publisher saw the value in your book, likely another one will too, one who’ll offer you the truly fair contract your work is worth.

    Have you come across any contract pitfalls or less-than-honorable negotiation tactics? Share in the comments!

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