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.
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.
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.