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.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!
Contempt for authors.
Contempt from publishers for authors.
Contempt from agents for authors.
Many publishers have their version of a clause designed to capture new book rights that will be invented one hundred years from now.To read the rest of PGs marvelous rant about contracts, click here: How to Read a Book Contract – Contempt
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.
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.Do you see the smarmy deviousness?
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.
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.