Tag Archives: traditional publishing

5 Publishing Contract Tips and Hints

Publishing Contract

It seems there are always writers ranting against ‘loss of control’ if they choose to traditionally publish. Any such loss of control will always be governed by the terms of the contract. I am not an intellectual property lawyer, nor a lawyer in the field of publishing, but I am a contracts lawyer, and there are a few basics that are generally consistent across all contracts.

1. Make sure you understand what the contact means. What you think it says, and what it actually means in a court of law, may be two different things, and note also that which court of law is making the determination will also affect the interpretation. A clause interpreted by a US court may not mean the same as a clause interpreted by an Australian court. Generally the contract will identify which country’s laws apply, and of course with big publishing houses this will nearly always be US law, but if you are contracting with a local publisher, it may be the laws of your country of residence.

2. You aren’t expected to know what a contract means – that’s part of what your agent is for. Self-publishers will cite not having to pay an agent as money in their pocket, but an agent is providing a service to traditionally published authors, and contract interpretation (and negotiation) should be one of those services. Unless you make an awful lot of money out of your books, an agent is probably going to be cheaper than a lawyer, or at least won’t charge you a lump sum in advance. Of course the quality of the service will vary from agent to agent, as with all things, but look to your agent for contract interpretation advice and (in my opinion) advice on when you really do need a lawyer.

3. If you don’t like what the contract says, including in relation to creative control, negotiate. Nearly all contracts are open to negotiation on some points, and if you don’t ask, you don’t get. The creative control clauses can range from allowing the publisher to make wholesale plot changes without the author’s consultation to the publisher only being permitted to make minor copy-edit changes. If something’s not mentioned, don’t assume you retain control. Silence is ambiguous, not conclusive. Always ask for more than you want so you have room to negotiate down – it helps, sometimes, to ask for something you don’t want at all so you can give it up.

4. Don’t assume the publisher knows what their contract says or means! This sounds bizarre, but it’s so true and this sin ranges from small to large business. You might think large businesses have their own in-house legal, but even if they do, the lawyers aren’t always approving all changes (even if they are meant to).

I’ve seen contracts cobbled together from other commercial contracts, with managers using a clause because ‘that sounds good’ and with no clue as to what it really means. In big companies, I’ve had the experience of negotiating against contract managers (not lawyers) who may have agreed changes to contracts without running them past legal and then in the future they just trot those flawed clauses out again and again to re-use. Sometimes you can negotiate a change purely because the other party never intended it to say what it actually says!

5. For those of you are self-published authors, rejoicing in the fact you don’t have to navigate this minefield, you’re not necessarily in a better position. If you have a contract with Amazon, you fall in the category of contracts that aren’t negotiable – ‘take it or leave it’ contracts, as I call them. Mass-marketed contracts. Contracts that are not negotiated on an individual basis because they are high-volume, low-value contracts.

Amazon may not be attempting to take creative control away from you, but thisparticular type of contract, because it is a one-size fits all contract, has been subjected to rigorous legal scrutiny, and you can bet your bottom dollar it is heavily tilted in the other party’s favour. I haven’t seen Amazon’s contract, but I’ve heard it has a few potential nasties in it. Do you know what it says? Do you know what it means? You may not be able to change it, but it’s always prudent to know what you’re in for before signing on the dotted line. The absolute most basic rule of contracts is never, ever sign something you haven’t read!
    If you missed it, check out why Game of Thrones has been a success while Legend of the Seeker was a total failure here.

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    The information in this post is factual information only and is not intended to be a substitute for legal advice.

    So You Want a Literary Agent? Don’t Piss Them Off!

    Literary Agent

    As writers we sometimes assert we write for ourselves. If you want to be published, you write for your readers. If you want to be traditionally published, those readers include your toughest critics, literary agents and editors. Even if you self-publish, you should have an editor, but that’s a different relationship and not one we deal with here. 

    So if you want to traditionally publish, and avoid a ‘Go directly to jail, do not pass GO’ injunction, it becomes vitally important notto piss off the agents and the editors (in this context, I mean your editor at the publishing house). I don’t mean you need to pander and grovel to them, but there are a few things that I regard as common sense which are apparently not so… common, together with some writing habits that most annoy agents ad editors.

    Agents – Relationship and Personality Gripes 
    1. Accept publishing is a business (yes, even self-publishing). I don’t want to hear about your muse. Any business has to sell a product consumers want to buy otherwise it makes no money and a business that makes no money is just a money-pit. There is no point trying to sell a book no one wants to buy. Understanding these harsh realities will make it much easier for agents to work with you. 
    2. Follow stated guidelines. This is pretty basic, if you can’t read, why should the editor expect you can write? I once worked at a medical centre where people would bang on the door with a sign reading ‘CLOSED’. You wouldn’t believe how much it pissed me off. Hello, can’t you read? Either you really can’t read, or you think you are some kind of exception. Neither will endear you to agents.
    3. Follow required manuscript format. This is really a sub-set of the above. Get it right, people. It’s not that hard. If you can’t do this, no one will want to work with you because you are a royal pain in the arse.
    4. Whinging and tantrums – don’t do them. Seriously? Seriously. You’d think this would fall under the heading of ‘common sense’ but apparently people do it. Throwing a tantrum might get you a publishing contract in some dimension, but not this one, baby. It just screams ‘unprofessional’ and why would anyone want to work with you after that? They won’t. Royal. Pain. In. The. Arse. Don’t be one. 
    5. Threats – Why would you do it? Just don’t! You’ll be blacklisted by the industry. Believe it or not, agents do talk to each other!
    6. Thinking your work is flawless. You maybe be asked to make changes. You don’t have to accept them all but there is a reasonable chance at least some of them will improve your book. Know when to agree and when to stand and fight. This is called negotiation. Being inflexible just makes you that pain in the arse I mentioned. And snotty. No one is perfect. 
    Editors – Relationship and Personality Gripes
    1. Taking suggestions as a personal attack. Your editor had to go in to bat for you against other editors’ projects. This is a joint project, not just your baby anymore. Consider what your editor has at stake.
    2. Crying, bitching and moaning – this is what your agent is for. Bitch and moan about the changes your editor wants to your agent. She’s getting paid for that. Your editor doesn’t want to hear it.
    3. Speaking ill of the dead – or your publisher. Bad-mouthing your publisher is not a smart career move. Including on your blog, Facebook, G+ or Twitter.
    4. Lack of timeliness – Meet deadlines. Or at least, if you can’t, tell someone. Don’t just let it pass and think no one will notice. They will. Communicate. You’re a writer, dammit!
    Agents and Editors – Writing Gripe
    1. Backstory – All too often I see writers dumping lumps of backstory at the beginning of their books. This very definitely includes prologues (and if you haven’t read it, see my case study on when a prologue is acceptable here). The number one thing I find myself telling other writers when I critique is too much backstory. Huge infodumps of backstory. Backstory backstory backstory. Get the picture? If I see that much of it, how much you do you think an agent or editor sees? How much tolerance do you think they have? If you answer zero, you’re probably right. Backstory needs to be dribbled to the reader, not forced down their throat in a big lump to the point where we choke on it.
    2. POV – Head hopping! I hate it. I’m reading a book right now by an author I used to love and she is head hopping all over the place. I am persisting only because I have a track record with the author. Another book on my shelf was not so lucky. In case you don’t know, head hopping is where you use third limited POV and the reader can see the thoughts of all the characters. I’m not referring to properly executed third omniscient, which is not head-hopping. If you really, really must use omniscient third POV, then please do it right, but do not head hop while using third limited and then call it third omniscient – this is not the same thing at all! I generally won’t notice third omniscient when well done – it’s subtle. But I will notice head-hopping because it’s not subtle. I’ve had people justify head-hopping as ‘But as a reader, I want to know what everyone is thinking.’ Let’s examine this statement. Yes, you want to know. What do you do to find out the answer? Keep reading. What do you do if you already know the answer? Maybe go eat lunch, turn the TV on. Agents and editors know this. A book like this hasn’t got much to recommend it.
    3. Use of facial expressions as speech tags. You cannot laugh, smile or scowl any kind of speech. You can say it and then smile. Wrong – ‘Come over here,’ she smiled. Right – ‘Come over here.’ She smiled. This annoys agents and editors too, probably because it’s so basic.
    4. Unnatural and stilted dialogue – Make sure your dialogue matches the character. Don’t use words that aren’t true to the character. Use contractions and sentence fragments unless there is a good character reason not to. This is how most people talk. Don’t use dialogue purely as a means to dump backstory, so no dialogue that doesn’t make senses, such as one character telling another things the second character should already know.
    I’m sure there are others, but these are probably enough to go on with and the some of the most often reported agent and editor peeves.

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    The Writer’s Long Road

    I made a comment this week that newbie writers are not ready to publish.
    So we’re clear, when I said ‘newbie’, I meant they have literally just picked up a pen for the first time to write a novel. This may not have been clear on Twitter, where 140 characters doesn’t allow room for such caveats and disclaimers, but I was surprised when someone tweeted me about the comment.

    This person found my statement so disheartening they felt they should stop writing altogether. I must confess, I was taken aback by this sweeping statement. Why should someone be disheartened by such a comment? Don’t people already know this?
    Apparently, people don’t know this. Which is perhaps a reason for me to say it more often.
    But we should know it. We none of us expect to ride a bicycle perfectly the first time – that’s why we have training wheels. My first day at law school, I was not ready to be a lawyer. Hell, my first day in my current job, I was not ready to be a lawyer, and yet, eight years later, I am a senior lawyer. These things take time. Is there anything that anyone can expect to do well the very first time they do it?

    If a writer expects to succeed immediately, I would suggest they need to think again. The very act of writing is a lengthy process, even if you can devote your full attention to it, and most of us need to have day jobs as well. I have been working on my current WIP since January 2008. Granted, there was a long time in there when I did nothing, but if we break it down into actual active time it looks something like this:

    • Four months to write a first draft and revise;
    • Three to six months receiving feedback from critique group;
    • Six months revising and editing (three times).
    Now that’s very nearly eighteen months, and I haven’t even finished the last set of revisions, nevermind written a synopsis or query letter. Even if I was to land an agent, it would take time to find a publisher, and then it’s something like two years for the book to land on the shelf. We’re talking four years minimum from go to whoa. It can easily be more.
    Granted, it’s much quicker if you self-publish. But just because you can do something doesn’t mean you should. But you can see my earlier post on indie publishing for that particular rant.
    The reality is a writer’s first ever manuscript is unlikely to be publishable without significant revisions. I won’t even try to rewrite my first manuscript. Or my second. Maybe – maybe – my third. The fourth I will.
    Even well-known and best-selling authors were rejected multiple times before being published. Here are a few of the ones I know:
    • John Grisham’s ‘A Time To Kill’ – rejected 45 times;
    • Dr. Seuss – rejected 46 times;
    • Tom Clancy’s ‘The Hunt For Red October’ – rejected 12 times;
    • Patricia Cornwell’s ‘Postmortem’ – rejected 7 times;
    • Mary Higgins Clark’s ‘First Story’ – rejected 40 times;
    • William Stevenson’s 80’s bestselling thriller, ‘A Man Called Intrepid’ – rejected 109 times; and
    • James Lee Burke’s ‘The Lost Get-Back Bookie’ – rejected 111 times over a period of nine years, and upon publication was nominated for a Pulitzer Prize and won the Edgar.
    If it took these authors this long and this many rejections to be published, then why should anyone expect to pick up a pen and immediately be worthy?
      
    I’m not trying to be pessimistic. I suggest writers be positive, which I distinguish from optimistic. Optimism is believing the best will always happen. I’m sorry, it won’t. Being positive is believing you can make the best happen, with hard work if necessary. Optimism allows no room for realism, being positive does.
    Realism is important, because if you aren’t realistic, you will only be disappointed when the things you expect don’t happen.
    Writers, the hard, real facts are, if you want to be a writer, you must be in it for the long haul.
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    Indie Publishing: Traditional Publishing’s Competitor – or Slush Pile?

    This is probably not a post which is likely to make me very popular but, you got it, I’m going to say it anyway. To avoid pointless arguments about what I’m not saying, I’d like to be clear upfront. I am not saying that writers should never indie publish.
    But… What is indie publishing?
    I expect there are as many different definitions or concepts of what indie publishing is as there are for each genre and subgenre of fiction. We could probably argue about it until the cows come home. So I’ll tell you what I think it is. Then you can argue about it, and I’ll just watch.
    I consider indie publishing to be an alternative to traditional publishing for writers who have submitted to traditional publishers and/or agents and received responses along the lines of ‘It’s great but it’s not for us’ or ‘You’ve got a fabulous story but it’s not commercial’.
    In other words, indie publishing is an alternative for writers who are skilled in their craft but can’t get an editor or an agent to take a risk on them for reasons that do not relate to the quality of their work.
    How about what indie publishing is not?
    ·         It’s not an excuse to cut corners on your WIP. A lot of them exist for a reason. If the response you are getting is that your WIP is not interesting enough, engaging enough, well-written enough, or suffers from other technical problems, indie publishing will not magically solve them;

    ·         It’s not the ‘easy option’ for the ‘lazy’ writer. Good writers are not born, they are made. They are forged in the crucible of reviews, critiques and, yes, rejection. Only when we are told what is wrong can we make it better. If you have just penned your very first novel or story and indie published it (particularly without an editor, or review or critique by someone who knows what they are talking about) I am sorry, but it’s probably more useful as toilet paper.

    And yes, I say that as a writer. I have one of those ‘first novels’ lying around. Like most writers who have been around the traps a bit (and after nearly 20 years at this, sorry to say I am old enough to be one of them), I pray to god or anyone else who might be listening that no one ever sees it. How embarrassing. As a matter of fact, I can’t even tell you where it is right now. Probably on a floppy disk for which there will shortly be no means to read it. I can hope, anyway. Maybe I am lucky enough for it to have been the broken one I found the other day.  

    ·         It’s not publishing for ‘vanity’. In the old days (which I remember, crivens), writers had to pay other people to have their book vanity published. Now a writer can epublish their book, even if it’s absolute drivel, and expect other people to pay them. If you are providing a product to consumers, it should be a good one, and not just to stroke your own ego.  People pay for a good product or service. Money spent by a consumer just to make you feel good is not money well-spent. Unless maybe it was spent by your mother.

    ·         It is not an excuse to drop standards. If you are indie publishing, I expect you to know how to spell, and have good grammar, as the most basic tools of your craft. You don’t need to know the names (I can never remember what a preposition is) but I expect you to know how to use them. I also expect you to know good dialogue, to not infodump, to weave backstory carefully, to have interesting plots, believable characters with depth… The list goes on. In short, everything I would expect from a traditionally published novel. I’m sorry, but the method of publishing does not change the ingredients in a good book. Yes, I have high standards, but in my defence I will say I never held someone to a standard to which I did not hold myself;

    ·         It’s not an excuse to break the rules – without good reason. In traditional publishing, as an unknown author, we are told all the time that breaking the rules will land you in the slush pile. Not so in indie publishing. What slush pile? Well, that may be true, but rules exist for a reason. If you break a rule, and it doesn’t somehow add to your story or advance the plot or somehow make it better than if you had abided by the rule – then breaking it is probably detrimental;

    ·         It’s not an excuse to not know the rules. If you want to break rules meaningfully and intelligently, you need to know what they are. Learn them, please. Study your craft.
    I recently heard the question asked ‘are you regarded as having achieved less because you indie publish?’ I don’t hesitate in saying ‘you betcha!’. We all know the odds against traditional publishing. Ergo, if you are traditionally published, you have achieved something of heroic proportions. You beat the odds. Even if your writing is not great literature, you still beat the odds.
    That, however, does not automatically mean that an indie book is bad, because we all know plenty of good work doesn’t get traditionally published. Unfortunately, a lot more of what doesn’t get published isn’t good work, which brings me to my next point.
    I recently heard suggested that we should do away with one star reviews because they are ‘not fair’ to the writer. Really? Why not? If the quality of your work is that poor, why shouldn’t you get 1 star? Because your fragile ego can’t bear it? I’m sorry, but if you can’t take negative criticism, you are in the wrong line of work.
    Granted, there are bound to be a number of undeserved 1 star reviews. But then, as discussed in my last post ‘What Price Your Honour?’, there are also large numbers of undeserved 5 star reviews floating around. Maybe we should also do away with 5 star reviews?
    But then, now 2 star reviews are undeservedly harsh, and 4 star reviews are coveted. I know! We shall have 3 star reviews only. Now you are all the same. Is everyone happy?
    I expect not. That was a very exaggerated example, but most of you probably got the point. A review system is, by its very nature, designed to distinguish between good and bad. Any scale, no matter where it starts and finishes, will have a lowest point and a highest point.
    As a reader, I can say that I have seen enough false reviews that I don’t bother looking at the star rating of a book anymore. It is meaningless data. Worse, I have started discriminating on the basis of price point. Two bad experiences with (traditionally published) 99c books, and I am ready to swear off them. If I won’t buy traditionally published 99c ebooks, what hope do indie books have? Not much, I’m afraid.
    I have in fact never bought an indie book. I have read free excerpts of various indie ebooks, designed to entice and lure the reader into purchasing the complete work. Sad to say, none has yet been of sufficient calibre, or sufficiently intriguing, to induce me to do so (though some clearly had promise). What a sad state of affairs.
    I like the theory of indie publishing, but as you can see, so far the practical reality is disappointing me. Please don’t get me wrong, I am not saying that all indie authors are bad, I am saying that inconsistent standards and unreliable reviews are demotivating me to look for the diamonds in the rough. I am sure they exist, but where to start looking? It is the proverbial needle in the haystack. I am time poor, so I must choose the books I read carefully.
    If indie publishing wants to be taken seriously, and to provide a viable, commercial and, ultimately, profitable alternative to traditional publishing, writers need to hold themselves to some kind of quality standard in the work they choose to self-publish. Otherwise, indie publishing will be doomed to be nothing more than a very public slush pile for traditional publishing. I would think that a tragic waste of something that could have been so much more.
    Fellow writer, I implore you – always strive to improve yourself. Take workshops. Join a review group. Use beta readers. Pay an editor. Listen to the feedback you get. But please, don’t publish anything less than your absolute spit-polished best.
    Hold yourself to a standard and be proud.