Thursday, February 9, 2012

Lurkers in the Weeds: Three Contract Dangers Every Writer Should Recognize, a Guest Post from Attorney Susan Spann

Susan Spann taught one of the Master Classes at the 2011 Rocky Mountain Fiction Writers Colorado Gold Conference in Denver, and I was lucky enough to take that class. It was shocking to find out how much I didn't know about contracts. Thanks to Susan, however, we have access to a great resource. There is an enormous amount of information on her blog, and at the end of this post you'll find the link to her Twitter account. Learn literary law on Twitter? Why not?

According to Susan's bio, she and her family live in in California. In addition to her other career and leisure activities, Susan writes historical fiction and is actively looking for a publisher for her mystery.

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Lurkers in the Weeds: Three Contract Dangers Every Writer Should Recognize, a Guest Post from Attorney Susan Spann


Few words have the dual power to thrill and terrify, but “publishing contract” strikes simultaneous joy and fear into writers’ hearts – and with good reason. Extensive terms and stodgy Legalese can make even the best-read author set down the page in confusion.

What on earth am I agreeing to?

Whether you’re working with an agent or as a self-represented, independent author, the name and signature on the contract is yours, and it’s vital that you understand the terms of your publishing deal. To start you on your way, let’s look at three of the most common issues in publishing contracts:

Overreaching Grants of Rights. An e-only publisher probably doesn’t require “exclusive rights to publish the Work in all forms and formats, now known or hereafter developed, throughout the world (or universe!) and throughout the term of copyright” – but many publishers ask for precisely that, even if they have no intention or capacity to properly exploit the rights they receive.

Consider asking the publisher to reduce the rights to a reasonable level. E-book only, if that’s the publishing plan. Exclusive North American, English language rights (plus non-exclusive Internet sales) are probably sufficient for small presses that don’t distribute books abroad. Your ability to negotiate rights reduces as the size of the publisher grows, but larger publishers have the ability to use more rights. The key is finding a level of rights that meets both the author’s goals and the publisher’s needs.

Ambiguous (or MIA)Termination and “Out-of-Print” Language. A good contract specifies when the author (not just the publisher) can terminate and also has a clear definition of when the work is considered “out of print.” In most cases, the author is only allowed to end the contract when the work goes out of print, so a proper (and unambiguous) definition is a must.*

A good definition of “out of print” should reference every format addressed in the contract (printed books, e-books, etc.) and should be tied to something other than just “availability” for sale. If not, the publisher may be able to keep your work “in print” and under contract merely by offering an e-book version for sale on the publisher’s own website. Pay attention to details!

Unlimited Rights of First Refusal and/or Rights to Derivative Works. Most publishers expect the right to publish or a “right of first refusal” on the author’s future works. This is reasonable and generally beneficial for all concerned. That said, the way the provision is tailored makes a difference. An unlimited right of first refusal on all future creative works could delay or prevent publication of poems, screenplays and other works that bear little or no relationship to the novels the publisher actually wants to see. Limitation of first refusal rights to future novels, sequels to the work being published, or works that fall within certain parameters will give the publisher the rights it actually wants and needs without tying up every poem the Author writes.

While these three issues are common, they’re not the only lurkers in the weeds. When reviewing a publishing contract, read everything carefully. Pay attention to every detail. If you have questions, or even if something just doesn’t feel right, don’t hesitate. Get help. Contact a professional – a publishing attorney or an agent. Some may offer advice for free, but even if you have to pay, dealing with lawyers is always less expensive (and generally much more pleasant) before the deal is signed.

* You can find more detailed information about this and other publishing law issues impacting writers at http://www.SusanSpann.com and also on Twitter, where I tweet about publishing law and contracts using the #PubLaw hashtag.

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Thanks so much for this excellent article, Susan, and for being with us today. The service you're providing writers on your blog and on Twitter are priceless. I've been doing a little homework on reversion of rights and found your posts and tweets very helpful.

10 comments:

Margot Kinberg said...

Pat - Thanks for hosting Susan.

Susan - Thanks for your excellent suggestions on what to look out for in a publishing contract. It's so exciting to get one that it can be easy to overlook the little details that can matter quite an awful lot later. And you've highlighted three real potential problems for authors. Thanks.

Alex J. Cavanaugh said...

Things to watch for!

Jan Morrison said...

Pat - how smart of you to have Susan by for a visit. This is so clear - perfect!

TheaH said...

Susan, always a pleasure to hear you speak! Watching those details has paid off for me, and I appreciate the words of wisdom that you gave at Colorado Gold. People forget that the art they create are really commodities and products in a very large business. It is crucial that they understand what they are selling, how, why, when, and to what extent.

Pat, thanks for hosting Susan. A wonderful and important topic!

Susan S said...

Thanks for the great comments and feedback - and a huge thank-you to Pat for letting my lurkers invade the blog today!

I'm always happy when I can get more information into authors' hands. The more we all know, the better equipped we are to manage our careers, regardless of the publishing route we choose.

Patricia Stoltey said...

Thanks so much for doing this informative post for us, Susan. I hope we see you here in Colorado again at the next Colorado Gold.

Jess Lourey said...

Great information! Thank you.

Li said...

Pat, Susan - thanks for this great post. Becoming familiar with contract law and terms was something that I overlooked as an author - and it came back to bite me. I heartily agree, paying a professional can seem a little costly at the time, but it can save you heaps of money and anguish down the road.

jennyhansenauthor said...

Excellent post! Thanks for the tips. :-)

Susan said...

Thanks again for all the nice comments. Pat, I do intend to be at the next Colorado Gold. I don't know yet whether I'll be there as a speaker or a writer-attendee, but I do intend to attend, one way or another. I intend to be there every year that I can from now on - don't want to miss a chance to visit with all my writing friends out there in Colorado!