Writing Excuses 16.5: Pros and Contracts
Key Points: What’s in a contract? And what do publishers try to slip in that shouldn’t be there? First, for novels, contracts in the US are usually for life of copyright. Short fiction is first printing. Around the world, audiobooks, it may be a certain amount of time, with renewals. Do look for the reversion clause, too! Try to raise the threshold of sales. It should not include perpetual irrevocable rights. Second, watch for ancillary rights. Exactly what rights is the publisher buying. In the US, for books, North American English rights, and maybe North American Spanish rights. If they are strong in the UK, you may want to sell world English rights. Be prepared for the publisher to want audio rights, too. You should try to keep translation rights, film rights, and stage rights. Shared worlds are different. Tie-ins and work for hire are also different. If you want a lawyer to look at the contract, make sure it is someone who is familiar with literary entertainment contracts. Finally, expect to have a right of first refusal clause, but avoid noncompete clauses. Make the right of first refusal as narrow as possible. Also, avoid signing away your series rights. Do try to include a clause making the contract binding on successors, assigns, and heirs. Try to strike any noncompete clauses, or at least get a narrow definition of what a competing work is.
[Season 16, Episode 5]
[Dan] This is Writing Excuses, Pros and Contracts.
[Mary Robinette] 15 minutes long.
[Brandon] Because you’re in a hurry.
[Erin] And we’re not that smart.
[Dan] I’m Dan.
[Mary Robinette] I’m Mary Robinette.
[Brandon] I’m Brandon.
[Erin] I’m Erin.
[Dan] We are going to be talking today about contracts. This will be the deepest dive we can do in the next 15 to 18 minutes about what does a publishing contract actually look like, what does it involve, and what do you need to look out for.
[Brandon] Yeah. A lot of these things are just… It’s interesting because on one hand, publishing contracts are fairly standard. Right? There’s a standardization and there’s certain things that are in them. Our industry has been around longer than any of the other major entertainment industries. Because of that, the contracts kind of have been around a lot longer and they’ve been refined. But at the same time, things consistently get… Publishers try to slip things in consistently that they should not be putting into those contracts. Beyond that, there is some legalese to how a contract looks like that when I got my first one, I was glad that I had an agent to go through and explain it all to me. So I thought we would take a week, an episode, and just talk about what some of these things are and what they look like and hopefully make them less intimidating to writers as they are hopefully getting given some of these contracts. So let’s go ahead and start with the things that are generally in a publishing contract. This is one thing I would say that… The first thing is, in America, unfortunately, contracts are usually for life of copyright for novel contracts with big publishers. I don’t know how it works in short fiction. Mary Robinette, is this common? Is it going to be life of copyright also? Like, I would assume it has to be so they can keep the magazine in print forever.
[Mary Robinette] Well, so the interesting… One of the interesting things is that they’ll get the right for the first printing, but then it’s usually specified very clearly in the contract that they get to print it in that one magazine and that is the only place that they get to use it. If they want to do an anthology, they have to come back to you.
[Mary Robinette] Which allows you to sell reprints. You do not get to sell reprints with novels.
[Brandon] You don’t. This is… This was… This was something that was fine in previous eras because novels went out of print when it became too expensive to warehouse copies and sell a few enough copies. So if your sales declined, you got the book back. You could then sell it again and hopefully get a relaunch of things like that. Modern contracts, because of the way epublishing works, a lot of books just never go out of print by those old things. So it is a big kind of source of contention with a lot of the indy published people that they don’t like the idea that it’s life of copyright. I think that’s a valid argument to be making, but it is standard in the industry. It’s not standard in, for instance, the UK. All of my contracts around the world get renewed very commonly as they run out after a certain amount of time. This happens in Germany. We just renewed with one of the publishers there. It happens often in audiobooks. My audiobook in America just came up and we had a chance to renew the contract or not. So the only really big place that I have life of copyright is the main place in the main contracts that I do which is with New York. But that is not a thing that you see and should raise red flags in that you’re getting taken advantage of or rather we’re all getting taken advantage of and perhaps as authors we should try stamping this out, but it is a common thing in contracts to see.
[Mary Robinette] Yeah.
[Brandon] The next thing that’s going to be in there is it’s going to…
[Mary Robinette] Can I…
[Brandon] Go ahead, Mary Robinette.
[Mary Robinette] Oh, just life of copyright. One thing that I wanted to mention with that is that there is something called a reversion clause. A reversion clause is that if your publisher doesn’t meet certain conditions, the threshold of sales, payments… There’s a number of different things, that the rights will revert back to you. It’s very important to make sure that your contract has a reversion clause so that there is a mechanism by which you can reclaim those rights.
[Brandon] As I said before, this is harder to have happen than it used to be. Maybe what you should be doing is raising those thresholds of sales that they need to meet. Some of my early contracts, which are still in force, right? Because I signed them before the e-book revolution happened, but they knew enough to get e-books in there. So they are for e-books. Say we have to sell, like, 50 copies or something like that. Which is just… They can put it on sale on Amazon for $0.99, and even if you’re not a big author, they can sell that threshold. The old thresholds no longer are really… They really don’t work anymore. But a lot of the contracts still have the old thresholds. So watching what your reversion language is and trying to get better reversion language is well worth your time. I got books back from Scholastic after… We weren’t pleased with how they were doing there. But unfortunately, because of this language, there was no chance they would ever revert. Because my name is big enough that sales would trickle in, and they would get those 50 or 100 copies per pay period. So I had to write a big fat check to just buy them back, to get them back. Which is something you can also do.
[Dan] Yeah. That’s what I had to do with audio rights for Active Memory, the third book in my cyberpunk series. Harper had the audio rights, but chose not to bring the third one to audio. So I eventually, after several years of arguing with them, just bought the rights back. I haven’t had a chance to do anything with them yet. But I did not have a good reversion clause and they were able to sit on them for several years doing nothing.
[Mary Robinette] Yeah. In short fiction, you’re going to be looking… The… Some of the language that you’re looking for is making sure that it doesn’t ask for perpetual irrevocable rights. Because if… And we’ve seen this happen before, unfortunately, in short fiction… If the market does something and you no longer want to be associated with that market, you may want to be able to pull your story from it. So you want to make sure that your contract has a good way to get out.
[Erin] Yeah. Or if the market goes on hiatus… Sometimes the market goes on hiatus and doesn’t seem to ever be coming out, it’s good to have something in your back pocket. I think one of the things to be aware of with short fiction is that it can feel… Like, you’ve already written the story, and the contract usually comes to you after. They’re like, “We are going to take your story. Here is the contract.” So it can feel like it’s a done deal. Like there’s no way anything could go wrong. But there’s always a chance. Murphy’s Law. So it’s always good to have a plan and a contract that maybe you don’t end up needing, but you still have it if you do.
[Brandon] So, another one of these things that you really want to pay attention to is what we call ancillary rights. It’s sometimes listed in different ways in contracts, but you can find it by… Them… The contracts should limit what rights the publisher is purchasing. Meaning, for most cases for book contracts, you should be selling in America, North American English rights and maybe North American Spanish rights, are the extent and the full extent of what you should be selling, with the asterisks of some UK publishers that have US arms have a strong UK publishing arm, and in some cases, you may want to sell them your world English rights. That’s like, for instance, Orbit in the US, it’s very hard to not sell them world English, because they’re a UK company that has started up a US arm in the last 15 years. They are acquiring for both of those. The other big one that has the asterisk on it is audiobook rights. Audio rights are worth big money now. They didn’t used to be. When I broke into the business, audio rights, you would sell several dozen copies to libraries. Now, as I spoke about, my audio rights are almost 50% of my business. So publishers have certain mandates of, now that audio has become such a big deal, to not buy things without audio rights. You’re going to have a fight if you want to keep your audio rights. It still can be done, but it’s getting harder and harder and harder. But they should not be taking our translation rights, any film rights, or any stage rights. They will…
[Dan] There are some outlets right now, like, I know SerialBox insists on film rights as part of their thing.
[Brandon] Oh, really. Oh, well, they’re doing…
[Dan] Yeah, I just learned that a couple of days ago, actually. I was very surprised.
[Mary Robinette] They are…
[Brandon] Aren’t they doing [garbled] story things, though, on SerialBox a lot?
[Mary Robinette] Yeah, it’s a shared world. So their model is much… Their contract model is somewhat different than standard. It is also, because it is a shared world, there are things where you are unlikely to be able to sell those rights on your own anyway because you’re a chapter in a novel.
[Brandon] Yes. Shared rights are a different thing and tie-in things and things like that. Like, when I sign a contract for the Wheel of Time, I was not looking at most of these things that we’re talking about right now, because that was work for hire. That’s it. That’s a completely different ballgame. But your publisher, if you sell traditionally, is going to try, in my experience, to keep the film rights. All this means to them is… The film rights for authors generally, in my experience, cell because somebody in Hollywood reads a book, decides it’s hot, and offers to buy it. I have very rarely been able to go to Hollywood in pitch something and sell it. You can. It does happen. But most of the time, they are coming to you. So if your publisher keeps the film rights, all it is is free money for them. Because the film rights will be 50-50 split between you and the publisher. The publisher… The personal come to you and say, “Hey, we want to option this.” You’ll be like, “Oh, the publisher has the film rights.” They will go to the publisher and give them the same deal they were going to offer you and the publisher will send you half the money. You should not sell anything that gives these rights to the publisher on an author created property. It’s gotta be one of your first lines you don’t cross is that and translation rights.
[Dan] It used to be very common in YA, for some of the big publishers, such as HarperCollins, to retain film rights and then market them aggressively. Aprilynne Pike, for example, when Wings came out, she had sold film rights to Disney before the book even came out because Harper was doing such a great job of marketing those. I don’t think that they still do that. I don’t know exactly how that has changed over the last eight years.
[Brandon] I will say that Joshua sold film rights on Alcatraz before the book came out and I got all the money and Scholastic didn’t get any. So if you have a good agent, that’s also… That also can happen. Often times, an author will have… Their agent will have a relationship with an agent in Hollywood. Hollywood’s a completely different world. But a lot of times, you can have an agent in Hollywood who is as aggressively marketing things as the publisher. But I will take that as say… As a sign that rule number one is whatever Brandon or anybody tells you is going to have exceptions. It’s only going to be the experience of that one author. In my experience, none of my publishers have done a good job of ever doing anything with any of their film rights that they’ve had from other authors I’ve known at those publishers.
[Mary Robinette] Something that you mentioned that I just want to jump in on, because you said Hollywood is completely different. It is important to understand that each area has their own terms of art. So when you are looking for someone to represent you, you want to make sure that you’ve got someone… Like, these… If you take a publishing contract and you show it to a contract lawyer in any other field, they will look at it like you are high and why would you sign this thing?
[Mary Robinette] But these are terms of art that are understood within the industry, and if you… And would be handled appropriately if anything came to litigation. So you want to make sure that you are dealing with an entertainment lawyer if you are having a lawyer look over your things. Your agent should be familiar with these things and not worried. You should be fine. But if you are a belt and suspenders person who wants to have a lawyer look over it, make sure that they’re an entertainment lawyer. Specifically, make sure that there someone who knows how to handle literature, because that is different from film.
[Dan] Awesome. Let’s pause now for our book of the week, which, Mary Robinette, you are going to tell us about Middlegame.
[Mary Robinette] Middlegame by Seanan McGuire is this wicked twisty tale. I want to tell you so little about it, and also want you to read it, so we can shout at each other about it. I didn’t know what the conceit was when I went in, and when I figured it out, it was so cool. So it’s… It is again, it is about family, it is about magic, alchemy is real, and it’s really, really good and will keep you guessing. I blew a deadline finishing this book.
[Mary Robinette] Middlegame by Seanan McGuire.
[Dan] Thank you very much.
[Dan] All right. I wanted to ask Brandon when you were talking about ancillary rights, are you inclu… Is this a good time to talk about international rights, or is that…
[Dan] Coming up?
[Brandon] Nope. That’s part of this discussion. So, for those who don’t know, we have talked about it on the podcast before. The way that translation rights work for books… I’m not sure so much on short stories, but for books is you will sell the rights separately in each country and usually your agent will have a relationship with agents around the world. A sign that an agent is a good agent is that they will have these established relationships with other agencies in the local languages and those agencies will take all the books that the US agent acquires, and then try to sell them locally to their markets. This is really a great, an important source of income, for a lot of newer novelists who’ve just broken in. I know that I lived on some of these foreign rights sales back when I couldn’t make a living just off of my US sales. I know Dan had a similar experience, that this can be the difference between going full time and not going full-time, is making some of this money. A lot of the agencies consider it a mark of pride that they’re able to do this and to sell rights around the world for their authors. It doesn’t happen for everyone. One of the things you have to understand is if it’s not happening for you, there are some times where certain genres just do not sell as well internationally as other genres do. This is very common, for instance, in humor. Humor is so focused… It’s so much harder to sell a humor piece in another language, because a lot of the humor just doesn’t work. Local countries have their own sense… Styles of humor. But it is something you should try… You should retain in your contracts, regardless. Because you might as well have the shot at it of selling internationally.
[Dan, Erin] Yeah, and…
[Dan] Go ahead, please.
[Erin] I was going to say in short fiction, I think one of the big differences in short fiction and novels is that unless you have an agent anyway, because you write novels in addition, in short fiction, like, you’re a one-person shop. You’re your own agent, publish… You’re dealing with… You’re reading your own contracts and they’re a lot shorter and easier to look at, although it is a good way to learn some of these terms of art because you have to look at everything yourself. But I will say that I’ve had short stories published in three or four languages, and actually what happens is, as long as you retain the right to do it, usually in short fiction, people will come to you and say, like, “I like your story,” and, like, “I’m Italian and I want to translate it into Italian and give you a little bit of money.” I’m like, “Yeah. Why not?” So long as you have the rights, then, you can say yes. So it’s just something to check off and make sure that your… I think there’s one or two magazines that do hold other language rights, but most will allow you to work directly with somebody in another country or translate into another language.
[Mary Robinette] You can actually pitch your stories… Submit your stories to foreign-language markets, which is a good way to start to build an audience. There’s a couple of different databases out there of markets, foreign-language markets. One of the interesting things… Hello, colonialism… Is that when stories are going out of the US into another market, they will take responsibility for translating it. When stories are coming from another country into the US, the author usually has to translate it. There’s a couple of different markets in the US that do translate. That is starting to shift. But for a very long time, we were really export only.
[Dan] I just wanted to say that, for me, because a ton… I would say a majority of my business is non-English, mostly Germany, and Latin America, but several others as well. Sometimes that does translate into significant money. I lived on Germany, and in fact in Germany, for several years. Latin America, on the other hand, while my books are huge there, I don’t get a lot of money from there. But I still get… This goes back to what Mary Robinette talks about with shininess. The opportunity to travel to Peru or to Argentina or to Budapest or to any of these countries where my books are big but there’s not a lot of money is still worth it to me. Because that is a cherished experience and I’ve got good friends and that shininess really comes into play there.
[Mary Robinette] Yeah. I just got the Japanese translations of The Calculating Stars. It’s in two volumes. Their tiny and adorable and I love them so much…
[Brandon] Oh, man.
[Mary Robinette] And can’t read them at all.
[Brandon] Japanese books are the best. The translations. They’re so good. And here’s just a little tidbit. Science fiction sells better in Japan than fantasy. So keep an eye on your selling to Japan if you have a science fiction book. Science fiction by foreigners sells better than fantasy by foreigners, let me state it that way.
[Mary Robinette] Yeah.
[Brandon] There is one other major topic I want to get to. We’re going to kind of skip over royalties and advances. These are talked about quite a bit more. It’s easier to find things about them. And indeed, there are some standardization’s there. My royalties on my books change very little between my first published books and my later published books, because of some of these standardizations and things like that. However, one area I really want to cover is right of first refusal and noncompetition clauses. A few years back, all the major publishers started inserting really egregious noncompetition clauses into their contracts. I remember SFWA raising a big storm about it before I got one. I’m like, “Hey, this is what they were talking about.” This is something that, as I talked to my agent, he said, “They try to do this periodically. A new boilerplate is made by the publisher that is what they’re going to give to everybody. Then everybody throws a fit about it and gets the noncompetition clauses pulled out of them. Then they wait a few years, and they try it again.” What they’re trying to do here is to make it harder for an author to walk away from a publisher once that author has gotten very popular, and that author has been able to demand better terms by playing the field then they would be when they’re a new author just writing their first books. So, they try very hard… This happens in our local market here in Utah, there are some regional presses that have had… In the past, have had very egregious noncompetition clauses because they’re really worried about this. This is where the the thing we talk about, where the publisher is not your friend, comes into play. They will try to keep ahold of you and they will tell you… The publisher will tell you, “We’re family. We want to be in the business together. That’s why we’re putting these sorts of things in there.” When it’s just going to limit your options later on. So you want to watch. It is all right to have a right of first refusal clause. It’s very common. But you want it to be as narrow as possible. They will start with a “We have right of first refusal on your next work, whatever it is.” You may be an academic writer who also publishes. That right of first refusal technically means that your fiction publisher gets to see your next dissertation piece on something. You should limit that right of first refusal on, if you can get it down to, the next book in the series you’re writing. That is the ideal place for it to be for you as an author. Often, you can only get it down to your next work in the same media, meaning your next book for adults or your next epic fantasy book or something like that.
[Mary Robinette] Yeah. I think mine is something like… With… One of the things that I remember with The Glamorous Histories was that it was the next work of adult historical fantasy. So I could do other fantasy, not historical. To someone else, I mean.
[Brandon] That’s an example of a really good clause. That’s an agent who got a good clause put in there. To explain right of first refusal, this means that you have to show the book to your current publisher first, and basically, they get the first crack at making an offer and things like that. It doesn’t mean you eventually have to take that offer. You can then go play the field and take it to other publishers and things like that. I’m not sure how the litigation plays out. I’ve been told sometimes that if you take a really bad deal from another publisher and your publisher has offered a much better deal, that could get you into a tricky legal situation. That’s a question for an agent, not for me. But the reason right of first refusal is all right in this case is because if something is doing really poorly at your publisher, then you still have that option to go somewhere else with the rest of the series. The ones you really want to watch out for are clauses that let the publisher own the series rights. You should never sign this unless it’s a work for hire or a series pitched by the publisher. Because then you could have a big falling out, walk away, and they own your characters. You’d say, “Wow. No. That clause would never be in a contract.” I’ve seen that clause in multiple contracts.
[Mary Robinette] Yep.
[Brandon] Sent to authors. Never to me. But I have seen that clause before.
[Mary Robinette] Yeah. Can I say one other clause that I want to encourage people to make sure is in their contract? It’s something that shouldn’t need to be in there. That’s a clause that says that the contract signing is binding on the successors, assigns, and heirs, or at least successors and assigns. What this means is that if a giant publishing house gobbles up another publishing house, that all of the terms of your contract are still binding on the new publishing house. That they don’t get to mess around, they still have to owe you all of the things that you were originally owed. They’re still obligated to pay you.
[Brandon] [garbled] something related to a current thing in the news right now, regarding contracts [garbled]
[Mary Robinette] As we’re recording this, we’re in the middle of something called Disney must pay. We’re talking to Disney about Alan Dean Foster. But it’s not just Disney. There’s… We’re seeing this kind of thing happen in comics and a lot and other places. So, in US copyright law, unless there is something in the deal memo between the two companies that by each other, or one of them buys the other, that says, “Company A, you’re still responsible for all of the obligations. We are in fact just buying the rights, but you’re going to take care of all the obligations.” Unless that language is in there, the way copyright law in the US is understood is that if you take on a contract, you also take on all of the obligations for that. That said, it is… What lawyers do is they take words and they make them mean the opposite of what they look like they mean. So having the successors and assigns in there is really a belt and suspenders kind of thing, but it makes it unequivocal. The other thing that it does is that it protects your heirs as well. So that when you pass, it makes it very clear that these rights go to your heirs. That’s… Rather than leaving your book in limbo.
[Brandon] The last little topic on this is the noncompete causes. Mary Robinette, have you seen these during your tenure at SFWA pop up and things, where… These are language where the publisher will say, “The author won’t write a competing work for another publisher while this contract is still in force.” Things like that.
[Mary Robinette] We do see that. Like, I’ve seen them attempt to do that in my own contracts. The… Again, the way it’s… The way we suggest approaching it is… First of all, get it struck, but if you can’t, at least get it defined narrowly about what a competing work looks like.
[Brandon] Yeah. They showed up in my contracts and we did get it struck. But only after… It was like the fourth round of complaining about it that they took it out. These sorts of things… Noncompete is all very vague. As I understand it, like, there’s lots of… [Garbled] there’s a lot of baggage to noncompete in various legal terms and things. I’m not a lawyer. This is not legal advice. But I would say be very careful about these clauses if that makes sense.
[Dan] Yeah. I have been burned by a noncompete in the past where I had to give up like none agreed upon YA contract because I learned that one of my other YA contracts included a noncompete, and I had to walk away from a deal, which was really painful. One thing, as you’re thinking about this, and you’re thinking, “Well, if the publisher is really just trying to earn my loyalty and keep me in house,” just tell yourself, they’re asking you to accept these contractual obligations to not work with another publisher. They would absolutely refuse any contractual obligation that prevented them from working with a different author. So if it doesn’t go both ways, it’s not really fair. Anyway, we need to wrap up. So, this has been really valuable, though, and I’m glad that we gave it the time that it needs, because aspiring authors need to know this stuff. Especially if it’s the first contract you’ve ever seen.
[Dan] So, anyway, let’s get some homework from Brandon.
[Brandon] Right. I’m going to let Mary Robinette jump in, too, because SFWA has a model contract that you can look through. Kind of familiarize yourself with some of these terms, and also to see what a good contract should look like. So, your homework is going to go to find these. Now, Mary Robinette, you said that there are… We know that there is a pretty new one focusing on model magazine contracts. We’ll have that in the liner notes. Some of their novel ones are a little older, isn’t that correct?
[Mary Robinette] That’s right. The… You can find the archived samples on the SFWA site, which are from 1989 and include things about microfiche and whether or not you need to print out your manuscript. They are extremely old model contracts and are interesting as historical curiosities. The magazine contract is up-to-date. But more specifically, SFWA also has a contracts committee which looks at contracts and evaluates them for good practices. So if you are a SFWA member, that’s something that you can absolutely take advantage of. The other thing… I’m going to plug my own Patreon. I got permission to step through one of my contracts, all the way through, clause by clause, for my Patreon supporters. That is recorded up there. I can’t share it with the general Internet, but I did get permission to do it for my Patreon supporters. So if you want to see a contract and have someone walk you all the way through a 38 page novel contract, I have one that I can walk you through. Or that I did walk you through.
[Dan] Great. That is a really cool resource. I need to support you on Patreon, it sounds like.
[Dan] Anyway. This has been Writing Excuses.
[Mary Robinette] There’s a certain amount of me going, “I don’t know what that clause is.”
[Dan] You are out of excuses, now go write.