Friday, September 30, 2011

Book Contracts No Author Should Sign

As PG has read book contracts for his clients (Thank You!) and contracts contributed to his Contract Collection (Thank You!), one message keeps coming through loud and strong.

Contempt.

Contempt for authors.

Contempt from publishers for authors.

Contempt from agents for authors.
Passive Guy (PG), from The Passive Voice blog, is the alter ego of David P. Vandagriff, an attorney who works with contracts and his superpower is making contracts understandable, even interesting!
Many publishers have their version of a clause designed to capture new book rights that will be invented one hundred years from now.

Publishers were blind-sided by ebooks and have had to simply claim their contracts included ebooks even when the contract never mentioned anything but hardcovers and paperbacks.

Publishers know that if an author takes them to court, a judge will ask a question something like, “Where does it talk about ebooks in this contract?” Publisher’s counsel will respond by talking about emanations and penumbras floating around paragraph 15 and subparagraph 21(d). The judge’s well-honed BS meter will quickly be pegged in the red zone.

A contract is supposed to reflect the intentions of the parties at the time it is signed. Copyright law includes a presumption that any right not expressly granted by an author is deemed reserved to the author. If an author requests a standard reservation of rights clause, even a publisher may feel embarrassed by refusing to include it.

So, in the tradition of fighting the last war, we see a Rights Clause whereby the author grants the publisher the sole and exclusive right to create or produce or cause to magically appear any book or book-like object or book idea and beam the result into the sky in any form which is now or may in the future be stumbled-upon or imagined or hallucinated by the mind of man and/or machine in any conceivable or inconceivable way and anywhere throughout the world and the universe, whether presently mapped or unmapped.

In the reality-based business world, if PG received a contract including a clause like this, he would call opposing counsel and ask, “Sally, what are you smoking?”

In the traditional publishing world, the author is supposed to sign at the bottom of the page.

Contempt.

Finally (for this post), there are all the smarmy little attempts to put one over on an author. PG can appreciate well-crafted deviousness just for the art of it, but these are stupid deviousness.

How to choose between so many candidates for discussion?

Passive Guy will return to last July for this one, an audit clause:
Author may, with sixty (60) days’ written notice but not more than once a year, assign and designate a certified and independent public accountant to examine Publisher’s records as they relate to the Work. Such examination shall be at Author’s expense unless errors are found in excess of ten percent (10%) of royalties in Author’s favor, then Publisher shall pay amounts owing for the Work and the reasonable cost of the audit.

As a condition precedent to the exercise by Author of his/her right to examine the books and records of Publisher, Author’s duly authorized certified and independent public accountant shall execute an agreement to the effect that any information obtained as a result of such examination shall be held strictly confidential and shall not be revealed to any third party other than Author or her representative without written permission by Publisher. Author also hereby agrees to hold all information and statements provided to Author or her accountant in strictest confidence.

Do you see the smarmy deviousness?

In order to perform an audit to determine if the publisher is stealing from the author, the accountant hired by the author will have to sign an agreement, an agreement the publisher will create.

How hard is it for the publisher to create an agreement no accountant will ever sign? Not very.

No signature, no audit. You’ll just have to be satisfied with the numbers we decide to put on your royalty report, dearie.
To read the rest of PGs marvelous rant about contracts, click here: How to Read a Book Contract – Contempt

5 comments:

  1. Talk about biting the hand that feeds you! You would think that publishers would want to deal with their authors in a fair and honest way. These are the folks that keep the publisher in business. Yet, the business world has never surprised me in the fact that they are hungry for one thing...money. It doesn't matter where they get it...sad.

    In regards to the slippery slope of the legal aspects of publishers and agents, I won't comment. I'd rather stick my head into the sand and wish it all away. I do not like the games that the legal system seems to tolerate. I know that I'm setting myself up for possible failure; actually most probable failure.

    But, behold, the wonderful world of self-publishing. There are legal situations in this universe too, I suppose, but it maybe one that is more understandable, hence, controllable. I don't know, I'm probably very naive. Maybe I should marry a lawyer, but I heard they make "objectionable" bedfellows. LOL

    Thanks Karen for posting. I should read more from Passive Guy.

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  2. Well, let me try this again. I made an earlier post and it showed, but now it doesn't appear. Hmmmm... It must have not liked what I said about how publishers seem to be biting the hand that feeds them.

    Publishers should be bending over backwards to help writers keep doing what they do best...write. If you make it difficult for authors to get the money and rights they deserve, then they can't write because they'll won't be able to make a living at it, or at least, supplement their income.

    I'm glad for the possibilities that self-publishing has made in curbing some of the legal mumbo-jumbo that writer's would have to contend with otherwise. I hope it stays that way. I am not a fan of "legal system" stuff. It's all Greek to me, or in this case...Latin. :P

    Thanks for posting Karen. I'll have to start following Passive Guy more regularly.

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  3. Hi Jeffrey, sorry! Blogger got hungry and snacked on your reply.

    It puzzles me too why a publisher would try something like this. I guess if one of the big six publishers hands a writer a contract they often don't feel like rocking the boat. That's a perfect segue to Dean Wesley's Smith's blog or Kris Rusch's.

    Thanks for the comment Jeffrey! :-)

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  4. I hope Blogger enjoyed such a fine assortment of tasty 1's and 0's! There was much to byte on. :P

    Self-publishing is empowering the author to pave their own path. Yes, there is much extra work, but in the end, you retain your rights and a good chunk of change.

    Hopefully, there won't be a huge glut of e-books that are badly written by folks that aren't writers, but people who think they can make a quick buck.

    This is like in the early 70's with the production of the consumer "four operations" pocket calculator. Did people automatically think they were now mathematicians? Of course, with calculators today, with all their powerful number crunching, people may think that they can be a Stephen Hawking too! :]

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  5. "There was much to byte on" * groan * Good one! ;)

    Some folks are worried about a tsunami of poorly written digital books hitting the market, and perhaps they are right to, but I think that in order to finish a book, one has to have some sort of a deeper connection to the material. Perhaps ... I'm just throwing this thought out there ... if one is able to finish a book then one, in some sense, IS a writer.

    I don't know, it's late and my brain is fried. I hope that makes some sense! :p

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