Things to Look For in a Contract

A few months ago a publishing contract for a nonfiction book came rolling out of my printer.  I held a 9-page affirmation of my project’s worth.  But I knew I had to seriously consider the terms before signing. 

  Studying the publisher’s boilerplate contract, my agent first negotiated down the number of required pages and allowed for more free copies for me, her, and my photographer.  She limited the type of book we’d need to bring to the publisher as first option and shortened the number of days they'd have to make their decision.  She changed the royalties from 10% of net receipts to 10% up to 5,000 copies and 12 1/2 % up to 10,000 and 15% after 10,000 copies sold.  She bought me two extra months to finish and turn in the book as well as a couple of extra days to correct the galley proofs.  She doubled the amount I’d be paid to revise or update the book.  She asked that I have cover and design input, and she reserved the film, dramatization, and TV rights for the agency.

Then I had a go at it.  I don’t speak legalese; but there were quite a few items in the contract that concerned me.  The index was to be compiled or paid for by me; I’m far from skilled in that area.  We had them nix that clause so they could do that at their expense.  I bargained them down further on the word and photo requirements.  I took back the rights to create (and benefit from) apps or enhanced eBooks and to blog about the topic.   I raised the percentage on eBook sales from 5% to 20% on the first 500 sold and 25% thereafter.  Instead of the photo allowance being paid only after all the work was turned in, I asked for ½ of it to be dispersed on signing.  My acquiring editor didn’t put a fight up on any of these changes. 

 

But there was more back and forth about this problematic (and frankly unfair) clause: “Sales of prior editions shall not be cumulative with sales of any revised edition for purposes of calculating royalties.” Given the fact that my percentages were to increase depending on how many copies sold, starting the count over with revised editions would put me back in earnings per book despite it selling well enough to go into those new editions. 

I still felt uncertain about verbiage I didn’t understand under Warranties and Indemnity, Accounting, and Reversion of Rights.  By this time my agent seemed tired of the back and forth demands she was placing on this editor whom she worked with on other projects and, no doubt, didn’t want to alienate.  So I took it to transaction attorney extraordinaire, Susan Spann.  For a nominal fee, she took a look at the contract. 

Despite all my efforts to catch items disadvantageous to me, she found even more troublesome clauses, some of them ones she felt were onerous enough to be deal breakers.  I wasn’t sure whether to be angry at the editor, my agent for missing them, or myself for being so naïve not to have noticed them.  

Susan didn’t think it was a good thing that the publisher could put ads inside the book without my consent, that they could withhold royalties due on my book for amounts owed on any other works I had with them, that “out-of-print” was tied to sales instead of the more vague “out of print” status, that the publisher could at any time sign its rights and obligations to another entity, that the publisher would have the right to use excerpts, up to 15, pages, from my book in others in their inventory, paying me only $100. 

What turned out to be the most important change Susan suggested was that the publisher NOT be allowed to finish the manuscript at my cost if content wasn’t acceptable.  That they would only have the right to cancel the contract.

It was never said formally, but I suspect that change might have been key to my being able to cancel the contract when my photographer backed out after I had already signed.  I canceled without an obligation to pay their costs to move forward with the project.

The lesson?  Have a capable attorney familiar with publishing contracts take a look before you sign.  Thanks Susan Spann!  --- Inkpot

On the Hooves of Failure

That could be the title of my autobiography! It’s been a pattern. I wrote my first book while I taught high school (I used that in-class experience later while teaching writing workshops at conferences, retreats and on cruises). Though my agent was unable to sell my first novel, I had written its first draft while working as a weight loss counselor. That experience later helped in writing the proposal for a cookbook which didn’t sell despite three agents trying.

I wrote another book, food themed, and that led to my decision to try to sell the cookbook again. It failed with another agent. I raised two boys. As a writer, I was lucky enough to stay home, be involved in my boys’ educations, and speak at the schools. One thing I did was speak on writing topics. Along the way I failed to sell my third novel.   

On the side, I did some in-home cooking instruction. I coupled that with my experience cooking with my hubby's Chinese family and my weight loss counseling expertise, pitched myself, and was paid for my food thoughts and recipes. A dollar a word seemed like a lot of money for something that was sheer pleasure.

The cookbook set aside again, I started a suspense novel that involves food and Asian themes, then I tossed in an amateur sleuth who is a cooking instructor. Somewhere in the middle of all this I started a horror novel that instead became an award-winning screenplay that didn't sell, the same fate of eleven of my subsequent award-wining screenplays. But the experience improved my fiction, and my sample scripts ended up catching the attention of a producer which landed me a connection and job with an indie director and later script doctor work.

I have eight file drawers filled with all of my drafts. After writing for over 20 years, my “submissions” spread sheet has far more rejections on it than acceptances. My dear “sister,” Janet, made a great suggestion. I shouldn’t call them rejections; I should call them “declines.” So I changed the heading of that column. She was right. The publishers declined my submissions; that didn’t mean they’d rejected me or even my skills. They simply had declined that project. For whatever reason.

My life seems to have the theme of: OK start another book but do something else at the same time.

I continued to edit for others, becoming a script and book doctor.  I continued to teach writing. In fits and starts I wrote for newspapers and magazines and blogs. The exposure got me writer-for-hire gigs and allowed me to coach and midwife successful books for other writers.

Another agent took on the cookbook, she brought a contract to me, I signed and the photographer backed out at the last minute. The cookbook went on hold again. From the time I started writing to today, I’ve had poems, shorts, essays and flash pieces accepted and published, both in paper and on line. These were the little things that continued to feed my confidence that I would eventually sell a longer work and be able to do one of those fun key note speeches about my “overnight success.”

Last year, a client referred me for a celebrity ghostwriting gig that some would feel was the writing job of a lifetime. It might have allowed my husband to retire, but it ended up getting sabotaged and thrown into a tailspin.

Even that traumatic experience ended up being grist for the mill and there are 300 pages of that story in my memory stick now. Along the way I’ve been offered representation by seven agents. Yet none of my own book-length works--fiction or cookbook--has been published.

In true lemons-to-lemonade style, I don’t discount all the benefits I got along the way from those efforts. I am proof that success can follow on the hooves of failure, IF you parlay the experiences. Looking back on it, all my writing detours led to something good. If nothing else they gave me a theme for the column I write for BTS Book Reviews, appropriately name “Karen’s Writing Detours.”

 All I do now to make money, to forward my name recognition, to land that next cruise gig, to reach out for another chance to write, all my opportunities come on the hooves of failure.
--Inkpot