I know, I know. You weren’t expecting a quiz. This was supposed to be a simple blog post about publishing contracts, imparting information but not asking you to do any work. The problem is that contracts are inherently boring, the ultimate cure for insomnia. The last thing I wanted was for you to fall asleep while reading this, so I thought a four question true/false quiz might help keep you awake.
Let’s get started.
True or False: Agents’ and publishers’ contracts are fair.
Okay, I cheated. The answer to this is “maybe.” A basic precept of contracts is that they’re written for the benefit of the party that drafts them. Since contracts are drafted by agents and publishers, the terms are most favorable to them. I’m not saying that a contract is unfair to the author, but this is definitely a case of caveat emptor. You need to understand everything that’s contained in the contract before you know whether or not it’s fair to you, and if it’s not fair, you need to try to change it. Which leads me to the next question.
True or False: Everything is negotiable.
I’ll admit that I’ve said exactly that, but where contracts are concerned, it’s false. Not everything is negotiable, particularly in publisher contracts. One notably non-negotiable section of every contract I’ve seen is the “warranties and representations” clause. This is the part where you agree that you own the rights to this book, that it’s not libelous, that it doesn’t violate any copyright, etc., etc., etc. This section also stipulates that if the publisher is sued, you’ll indemnify them. In other words, you’re the one who’s on the hook for attorney fees to defend yourself and the publisher.
Another non-negotiable section is dispute resolution. If a publisher specifies arbitration rather than a suit in a court of law, you’re unlikely to be able to change this. Similarly, the dates on which royalty statements are issued isn’t something a publisher will change for you. They have accounting systems, and those systems are set up to calculate royalties for everyone, not just you, on a specific date.
The good news is that many sections of both agent and publisher contracts are negotiable. The key is knowing which can be modified. So, how do you know? You might ask an expert.
True or False: You need an attorney to review the contract.
This is another question where the answer is “maybe.” In general, agent contracts are simple enough that you shouldn’t need an attorney’s review. Publishers’ contracts, on the other hand, are more complex. The questions you should ask yourself before retaining an attorney are:
* Are you represented by an agent?
If you are and if this is a standard contract with a publisher to whom the agent has sold in the past, you may not need a separate review. In theory, your agent has already vetted the contract and negotiated away the most onerous clauses. In theory.
* How comfortable are you with contracts?
If you aren’t represented by an agent and you’ve negotiated other contracts and don’t fall asleep reading the seemingly mind-numbing clauses (including those critical warranties and representations), you may not need an attorney.
* How much money is involved?
The simple fact is, attorneys aren’t cheap, so you need to ask yourself whether the cost of retaining one to review the contract makes sense from a business view. If this is a small publisher paying a minimal advance, you might wind up paying that entire advance – or more – to the attorney. Only you can decide whether the risk of signing a potentially bad contract is worth the expense.
If you decide to hire an attorney, don’t forget that attorneys have different areas of expertise. While they all took contract law classes, that doesn’t mean that they’ve had much real world experience with contracts. And, even if their specialty is contracts, there’s a big difference between contracts for real estate ventures and publishing contracts. If you’re going to the trouble and expense of hiring a professional to review your contract, be certain you’ve found an attorney with publishing contract expertise.
True or False: If your agent has approved the contract, you don’t need to read it before signing.
False. Absolutely, positively false. I was appalled when a New York Times bestselling author who’s also an attorney admitted that she hadn’t read the fine print in one of her contracts and didn’t know that her royalty rate had been reduced. It doesn’t matter what your agent says. You’re the one who signs the contract. You’re the one who’s accountable. You should – no, you must – read and understand every clause in every contract you sign.
The bottom line is that contracts are an essential part of your career as a published author. They define your relationship with your agent and/or publisher. They establish the rules under which you’ll operate, including how to terminate a relationship that goes sour. They may appear to be boring, but, to paraphrase Robert Frost, good contracts make good relationships. Don’t shortchange yourself by signing a poor contract simply because you’re anxious to be represented by an agent or to have a publishing contract. You deserve the best!