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» Hatrack River Writers Workshop » Forums » Open Discussions About Writing » Boilerplate Contracts--a Warning!

   
Author Topic: Boilerplate Contracts--a Warning!
Unwritten
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A friend just sent me a link to this post about contracts at Alibi (an imprint of Random House, no less!) I've heard the advice to get an agent; to be so, so careful before you sign a contract a thousand times, but this really struck home.
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KellyTharp
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Wow, interesting article. Sounds like the industry in-and-of itself is going down the tubes with the "us first" attitude. I guess they just feel that cost of publishing is too much and so are putting it on us writers to foot their bill so they can maintain profets. Sounds like medical insurance companies with all the new health care madates. You the consumer pay for it all so we can keep up profits... too bad if you get sick or injured. Penguin, the Blue Cross Blue Shield of publishing.
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rcmann
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Self-publish.
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Meredith
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I do not understand why anyone would sign with one of these e-book only imprints. I don't care what publisher is behind it. They're all rip offs. You can do much better just e-publishing on your own.
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Pyre Dynasty
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Yeah, I saw that one. Probably the worst contract ever. Scalzi says in the comments to the post about Hydra (the Sci-fi fantasy head of this beast), "The fences will always be tested. It’s why it’s important to keep the fences electrified at all times."

I think we really need to quash the idea of the "original bad deal" to keep things like this from happening.

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genevive42
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Random House responds, and SFWA's response to them.

http://www.sfwa.org/2013/03/sfwa-de-lists-hydra-random-house-responds/

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MattLeo
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The response amounts to this: think of us as a self-publishing house that claims perpetual worldwide rights to your work.
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extrinsic
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I don't see anyone actually posting the boilerplate contract in dispute. Thirdhand paraphrasing and emotional rhetoric is what I see in the blogosphere dialogue. I'd like to read the contract and make up my own mind about its intents and meanings and possible harms.

The key word I see within the blog dialogue of signficance is "boilerplate," a template, a starting point, albeit with most favorable terms purportedly in Random House's corner.

The alleged boilerplate contract itself and electronic publishing culture in general are works in progress, the latter in its third-decade infancy compared to intellectual property rights' maturation spanning several millenia. Everything and anything are negotiable so long as contract terms are legal, fair, and equitable. Otherwise, fruit of a poison tree is in material breach and nullifies a contract. In a few decades maybe electronic publishing culture will reach an equitable compromise between reader, writer, and publisher rights and responsibilities.

In the meantime, caveat venditor: seller beware.

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rcmann
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I reiterate, the simplest way to avoid such pitfalls is to combine writer and publisher into one entity. The plain fact is, no self-publisher has any practical use for the services provided by a large publishing house.

Case in point, extrinsic. Your own thread regarding your intent to become a free-lance editor. Every service that was once the exclusive domain of the large publishers is now available to the writer directly. Most of it is either free, or relatively cheap.

This is not even exclusive to e-publishing. With Createspace, Lulu, Lightning Source, et.al. out there it's entirely possible to write, publish, and market your own book without ever talking to an agent or even an editor. Whether or not that is a wise thing to do is a different matter. But it can all be done, easily.

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extrinsic
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I have been a freelance editor for a dozen years. Expanding into developmental editing is on the agenda.
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rcmann
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I sit corrected. The reasoning holds.
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extrinsic
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Large publishers still provide unseen services beyond the reach of many writers. Negotiating distribution contracts with book clubs, brick and mortar retail chains, and negotiating film options, among others, are in general beyond writers' reaches. Though writers today have potential abilities to negotiate foreign publishing contracts through literary agencies operating in other countries, in the case of the international Big Six, the deal is often a foregone conclusion if interest merits because they own imprints in many countries. The international mass media conglomerate Bertelsmann, for example, owns Random House and Penguin and Pearson.

In a final analysis, a product's merits either sell it or don't. I won't leave any stone unturned, up to and including seeking productive developmental editing for any fiction product wherever I publish.

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LDWriter2
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extrinsic has a point but at the same time it is happening.

More and more writers are doing everything themselves including overseas contracts. Well, they use IP lawyers with the right time of experience too. Still a small number but it is growing.

These type of boilerplate contracts are pushing writers that way.

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rcmann
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Case in point. I uploaded my first novel to Smashwords tonight. Within three minutes I had my first sample download. Everything, from writing, to layout, to cover was done by me. If I sell one copy, I will recoup my expenses. After that, everything is gravy.
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Grumpy old guy
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Before signing any contract--get a lawyer. I've done a bit of commercial law and read up on criminal law, but IP law--that's another kettle of sparrows.

Any contract that says, "We get the rights to all your work in perpetuity," is a bad contract; but it's a starting point for negotiation. If your story is any good and the publisher wants it, they'll deal.

Phil.

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extrinsic
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I believe the new electronic publishing contract terms which ask for all rights for perpetuity are in response to Web host and site liability concerns Google, Facebook, and Twitter and other social networking sites have with hosting user social network content for public consumption and infringement and contemporary copyright laws' loopholes and previous contract lapses that overlooked electronic publishing arrangements and the limitations of distribution rights management protection and the simple fact that electronic publishing is by its very nature global in reach and perpetual.
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Pyre Dynasty
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rcmann how much are you paying yourself an hour if one copy recoups your expenses?

This is how you negotiate this contract down: laugh and say, "Now show me the real one." Selling all your rights might make sense if you are working in an established IP, or there is a really wonderful advance. No advance might work, with high royalties and and assurance of sales. The author paying set-up costs? What the heck is the publishing house doing to earn its share then?

Yep, there may be some day when this is all figured out, and everyone can sit together and have a fine literature filled time. But it is not this day, we are in the trenches and the battles we fight now will determine that future. If we don't fight this kind of contract then it may become standard. Think it's impossible? Go have a conversation with a professional musician.

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rcmann
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Pay myself? What is this pay you speak of?

Truly I don't do it for pay. I do it because the words are in there, and if I don't let them out it will poison me. Any money is just a side benefit. If I were stranded on a desert island bare assed naked, i would go down to the beach and write in the sand with stick, because a writer is what I am.

I'm not doing this for a job. If I wanted to make money at it, I would go back to tech writing, like I did for decades.

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Owasm
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What does a publisher do? Everything that the writer doesn't want to... and the writer pays consideration for that.

Self-publishing is an easy way to get your work out there, I do it. But where a publisher can do marketing, has contacts with distributors and knows how to sell, the vast majority of writers don't and their books languish in the lists. I know mine do.

The emerging trick to self-publishing is staying up in the search engines of the on-line retailers and that is where a publisher's influence can keep books up at the top while yours drop into the abyss.

Having read the post, as always, you have to keep your wits about you when dealing with agents and publishers. They, like other organisms look out for their best interests. The key is making sure that you make sure that your best interests are covered at the same time. This contract as described doesn't seem to consider a second party.

[ March 08, 2013, 10:19 AM: Message edited by: Owasm ]

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RyanB
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I'm new to this writing thing. I haven't sold anything.

But I like to think I know a little bit about marketing (in the broad sense) and the Internet. Currently, the only thing publishers have that an author can't easily do/contract is the "connections with distributors" part. They also do financing/risk through advances.

Since this is an eBook imprint (connections are irrelevant) and there's no advance, there's no reason for an author to go for this, UNLESS they don't want anything to do with the publishing process beyond writing. In exchange for being able to hand off a manuscript and be done, the author would have to agree to extremely unfavorable terms.

There are plenty of other services that will do everything else as well, for a fee, and take no royalties. But you have to pay them upfront. Thus Alibi is taking on a very small amount of risk by paying the setup costs themselves. (Remember, the author only pays set if the book actually sells.)

So if you were in a VERY specific situation this might make sense. That is, you don't want to manage and/or finance the publishing yourself (at any cost), but you also don't have any other options because you're unknown and/or not that great yet.

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Reziac
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The description of the contract reminds me of the typical all-one-way contract used by the music distribution industry. You can read all about it here:

http://www.negativland.com/news/?page_id=17

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Kathleen Dalton Woodbury
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quote:
Originally posted by Grumpy old guy:
Before signing any contract--get a lawyer. I've done a bit of commercial law and read up on criminal law, but IP law--that's another kettle of sparrows.

Exactly. So be sure the lawyer you get is well-versed in intellectual property law, or you will be wasting the lawyer's time and your money.
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Kathleen Dalton Woodbury
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This is a great article (in the Wall Street Journal) about Hugh Howey, who has done what we're talking about here, and then some.

Read it and learn.

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LDWriter2
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quote:
Originally posted by Owasm:
What does a publisher do? Everything that the writer doesn't want to... and the writer pays consideration for that.

Self-publishing is an easy way to get your work out there, I do it. But where a publisher can do marketing, has contacts with distributors and knows how to sell, the vast majority of writers don't and their books languish in the lists. I know mine do.

The emerging trick to self-publishing is staying up in the search engines of the on-line retailers and that is where a publisher's influence can keep books up at the top while yours drop into the abyss.

Having read the post, as always, you have to keep your wits about you when dealing with agents and publishers. They, like other organisms look out for their best interests. The key is making sure that you make sure that your best interests are covered at the same time. This contract as described doesn't seem to consider a second party.

The distribution thing can be learned, POD publishers can help. Writing more and getting more books-stories out there can help.

Dean Wesley Smith has an online workshop that deals with all that. Other writers may have something similar.

OTW, I know of three pros who are warning about those new contracts.

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Pyre Dynasty
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Here is the SFWA's response to this.
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Kathleen Dalton Woodbury
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I've posted other stuff from Ilona Andrews, and she is now asking for input for an article on working with no-advance e-publishers.

quote:
If a publisher who typically pays advances opens a new publishing division, the fact that there is no advance is the first sign of trouble.
She has pointed out that regular no-advance e-publishers are not the problem, but traditional publishers who think they can get away with no-advance publishing, instead of doing things the way they've been doing them (see the first post in this topic), can be a serious concern.

quote:
If any people with e-publishing experience from the leading no-advance e-publishers such as Samhain and Carina Press want to help me write an article about no-advance e-publishing model, I'd appreciate it. I'll need some numbers. I only have mine to work with.

For the authors who want to help with an e-book no-advance publishers: my email is ilona.andrews at gmail. Please drop me a line. Thank you.

These quotes are from Twitter, by the way.
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