A contractual obligation

Looking from a tall city window I see the uniform shape of panes in the building opposite. Each gives me a little scene (of desks, chairs, shelving and cabinets) in a cookie-cutter tableau. I see a world of difference between these offices and my humble desk at home. It’s a distance from ‘business’ that is typical of writers. I even nurture it: I vary my hours daily, I don’t have a filing cabinet and some days I start work in my pajamas. But there’s one thing about business from which distance is non-negotiable and that is understanding contracts – particularly for writers who want to be paid.

Shrinking newsrooms, merging publishing houses and the proliferation of free content all sit on the not-so-great side of the income-earning ledger. On the other hand new initiatives like digital-first or digital-only publishing houses and print-on-demand technology have been encouraging. For some writers there may be potential income in exploring in these new spaces but Alex Adsett, Consultant and Literary Agent with Alex Adsett Publishing Services, says we should check the fine print.

You may be contracted for life if you don't take care! Thanks to Michael Cory for use of this image Empty Office under Creative Commons.

You may be contracted for life if you don’t take care! Thanks to Michael Cory for use of this image, Empty Office, under Creative Commons.

‘Writers should be aware that a lot of digital-first or digital-only contracts still try to get everything,’ she says. By ‘everything’ Adsett is referring to rights (such as film rights, translation rights, audio, merchandise, serialisations, the right to on-license, print rights and more). ‘If [the publisher is] going to do something with them then that’s fine and that’s always a decision the author needs to make… But if they’re just some little company that just wants to sell your e-book then they shouldn’t be getting that broad a range of rights,’ says Adsett. Limit rights where appropriate (for example with a digital-only company writers should try to license only digital). Keep in mind what’s appropriate. (Writers often take care with regional rights, but in a digital setting world-rights might be needed given the costs of geolocating / blocking and the small profit margins involved in publishing).

Those of us excited by the opportunities new technologies bring need to understand the affect of these on the old ‘out-of-print’ clause. Traditionally this clause reverted rights back to the author when a work was no longer in stock. ‘With e-books and with print-on-demand technology, that’s just not realistic anymore. A book is always going to be available for sale,’ says Adsett. She warns that the out-of-print clause applied to digital or print-on-demand technologies could mean a publisher holding rights to your work in perpetuity (even if they have no intention of making that work available).

Adsett says that good publishers are applying new ‘reversion’ clauses to cover out-of-print in both e-book and print contracts. In these contracts out-of-print is defined as either relating to a sales limit (for example, if less than 50 or 100 copies are sold in a 12 month period) or it’s defined as relating to an expiry date (in the form of a fixed-term contract). The dwindling sales or the expiry date trigger a reversion of rights back to the writer. On self-publishing platforms Adsett says we should check for similar ‘escape’ clauses. She warns that publishers refusing to negotiate fairly on rights may be a part of a new numbers-oriented breed that has emerged alongside new technologies.

‘There was always a high cost to publishing. You had to actually believe in a book to put your money into the printing of it,’ says Adsett. Because of this, traditional publishers invested in editorial, design and marketing. They contributed their expertise and hard work and in doing so they gave writers a stamp of quality. By contrast, new technologies have reduced the cost of publishing significantly. Some new publishers are adopting a more hardnosed model. They sign up hundreds of pieces and invest in little or no editorial.

In this scenario if one in 100 pieces sell through, the numbers add up and the publishing business (and one writer) is successful. But it’s a poor deal for most writers says Adsett, ‘All of the other 99 authors have signed away their rights for almost nothing, for almost no sales, and not a lot of chance of getting their rights back.’ If you send your work into that cookie-cutter framework you’re likely to be worse off. You may even find yourself sitting, in a suit, at a desk, from 9 to 5 in one of those tall office buildings making back the income you lost.

Contracts may be complex, but our contractual obligation is simple. ‘Even through all that excitement of [getting a publishing offer] think about what you’re actually signing and why,’ says Adsett.

 

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