Saturday, February 04, 2017

Negotiate this!

Yesterday's post about short stories generated a comment from Craig F that is worth discussing. Craig said

My Queen, I am sorry to disagree on the edge of this Stupor Bowl Weekend, especially with the Falcons playing in it again, but I must. All contracts are not negotiable. It is worse now that we are dealing with e-personalities. They can ignore you and there is nothing you can do about it. It is much easier to negotiate when you can look someone in the eye to present it. 


You can disagree but of course you can't be right when you do ;)

All contracts are negotiable in the sense that if the terms won't be changed for you, then you don't sign it.

Some contracts or agreements are boilerplate (one size fits all) and the person or entity offering it does not change it for individuals.

Examples:
1. Contests. One of my clients won the inaugeral MysteriousPress.com contest and you can bet that before I submitted his novel for consideration, I read the terms VERY carefully because those terms were binding.

2. Author/agency agreements. Our AA agreement is uniform for each client. We can carve out exceptions to the scope of representation but that's about the only thing we change. Scope of representation means what kinds of projects we rep for you. One of my clients has me for his adult work and another agent for his picture books. Our AA agreement reflects that.



Generally however, if you are licensing your story to a periodical you can ask for revisions to the offered contract.  One very well known magazine always asks for film rights in their boilerplate, but will strike it upon request with no fuss muss or bother. You just need to know to ask.

Bad contracts can screw up your career.

Be very careful of the rights you assign to anyone.

Questions?


30 comments:

Carolynnwith2Ns said...

Okay, allow me to reach back for historical context regarding today’s enlightening post.
I believe it was Hester Prynne who first was emblazoned with the significance relating to the letter A.
Then there’s AA, AA, and AAA. All fine organizations or terms, helping humble folks like us to understand, via truncated, abbreviated and emaciated, often used expressions and titles, what the hell someone is trying to say.

As a side note, negotiating a contract, regarding writing, is a dream for many of us. So bring on your AA before my next AA meeting while I wait for AAA to save my model A.
Hester would be proud.
Have a nice day.

E.M. Goldsmith said...

At this point, I'd be quite happy to negotiate any contract for my writing, anything at all. Which is why coffee exists- so I can write myself into a negotiable position. Or at least a compromising one,

Amy Johnson said...

"You can disagree but of course you can't be right when you do ;)" What a great line!

Thank you for the information, Janet. And, yes, I do have a question, oh Queen. A few years back, I read something from an agent who said she's trying to learn more about the contracts aspect of agenting, but it's the author's signature that goes on the contract, so it's really the author's responsibility (not hers--the agent's) to know what she's signing. To me, that contrasted with what I had read from an agented, published author, who is also an attorney, who said one of the reasons he had sought an agent was because he wanted an expert in publishing contracts, as publishing contracts are so different from the kinds of contracts he knows well. So, how do we make sure the agents we're querying are like you? (Of course, no one this side of Heaven truly measures up to being truly like you. How was that?) Thanks for considering.

Kitty said...

2Ns, what is an AAAAA? Someone who drives you to drink :)

Melanie Sue Bowles said...

You may be horrified to learn that when I received the contract for my first book about Proud Spirit I didn't even read it... let alone scrutinize it. "Hand me a pen and point to the dotted line!"

That was nearly fifteen years ago. The same house went on to publish my next two books. They've been very good to me. I recently asked to be released of my contract as I wanted to pursue genres they don't publish. They consented, all on good terms with their best wishes.

2Ns If you ever wanna come sit on my porch and hang out, I'd be cool with that...

BJ Muntain said...

You know those 'Terms of Agreement' you agree to whenever you use any online service? Ever read those? I used to read them. Really. Until I had to agree to so many of them that they all started flowing together. I've probably already signed away the rights to my firstborn... but that's okay, because I sincerely doubt there will be one.

Amy: It's the author's responsibility to know what she's signing, but it's the agent's responsibility to explain it to the author and negotiate the best deal possible for her.

Amy Johnson said...

Thanks, BJ. I understand that whenever anyone signs anything, ultimately the responsibility is theirs. I try to be careful about signing things--I'm one of those people who do read the "Terms of Agreement" for online services. :) Still, something about what that other agent said really got me concerned.

All this gets me thinking of the way Janet will sometimes answer a question and say something like, "Here's the answer to what I think you really meant to ask." She has expertise--she knows. With a publishing contract, I don't think I'd necessarily know all the things I should be looking for, what I should be asking, even though I've read articles on the subject. That's where I'd be counting on an agent's expertise to point things out to me. As far as I know, there's no formal literary agent certification that would indicate an agent has gained expertise in publishing contracts. I suppose membership in AAR might indicate such expertise, by my understanding is there are great agents who are not AAR members. How do we know the level of a potential agent's contract expertise?

Claire Bobrow said...

So, I'm confused. I looked at the Mysterious Press site to read about the contest and it states that, with respect to the winning entry, they "...will publish it as an e-book original with print-on-demand copies also available. World-wide partners will have all rights (excluding dramatic rights) to publish in all formats."

Janet - did you submit the client's winning entry for consideration, or a different novel? If you submitted the contest winner, why would a new publisher want to take it on if e-book and print-on-demand sales were already being handled by Mysterious Press, plus any and all formats by their worldwide partners?

I'm probably missing something very obvious here, but I can't see it yet. Time for more coffee...

Julie Weathers said...

BJ I used to read the tos all the time, but I don't anymore. There are just so many and they are so long. I do occasionally on something new.

"I've probably already signed away the rights to my firstborn"

I know most agents say their contracts are non-negotiable, but I'm going to ink in "Must take possession of first born. Semi-trained bronc rider."

In my previous life my two agent contracts were pretty straight forward. I did actually read them. I'm surprised, but I did.

Kregger said...

Back in the day, when I had to review contracts for the big boss. Once in awhile, insurance contracts would cross my desk. Every insurance contract I read had a gag clause. This essentially prevented the boss from disparaging the issuing insurance company. I learned from that experience that the First Amendment only applies to the government from restricting free speech, not private companies. An example of this are the fines issued by NFL and NBA for players and coaches speaking inappropriately.
I found that drawing large "frowny faces" through whole paragraphs in a contract upset people other than the big boss. Ultimately, he was the guy that signed my paycheck. God, I miss that guy.

Watch those contracts. If you don't know what they say, ask a third party.

Kregger

Craig F said...

Firstly: turning your pretty head and walking away is not negotiation, it is a choice. negotiation is a give and take situation. Say I will give you B if you give me C. Then you counter offer because you want D and F for B.

When you submit to a contest you have to click to agree to the terms of their contract before going further. You have a choice to do that, you are not negotiating on that contract.

Weighing the value of a particular contest is a necessary thing. I chose not to give away my rights in perpetuity not because I wasn't willing to give the rights away but because there was not enough value in it for me.

You can call that negotiation but it is not. Negotiation would be if they offered to raise the value for my rights. If there had been better recompense I would have had no problem signing the story away. If it had been the Chicago Tribune contest I would have thrown in my soul. It is not for the prize money but for the market impact and exposure.

Colin Smith said...

I've said is before, and I'll say it again, this is one of the reasons I want an agent. Another is for when my kids ask me for stuff, I can say "Talk to my agent!"--but that's another story. I think I'm literate enough to be able to read and understand a contract, but since it's not part of my life and training, I'd be afraid of missing something, or failing to negotiate something I could have negotiated. And frankly, I could do without that worry. On top of that, you have Melanie's situation, which I totally understand: a publisher sends you a contract, and you're so giddy with excitement, and so happy to have a publishing deal, you don't want to let it pass you by, so you sign on the dotted line as quickly as possible. Your agent is that cool-headed voice of sanity in those moments of insanity who will say, "Yes, this is exciting, but it's not quite as exciting as you think. I think you can do better."

Amy: I'm sure Janet won't mind me sharing this with you. As you might be aware, the founder of New Leaf, Joanna Volpe, cut her agenting teeth at Janet's apron strings (ooo, mixed metaphor!). However, Janet said to me Joanna's success is totally a product of her own drive and skill. All Janet did was teach her how to read a contract and do the business side of things. Joanna's talent at spotting a best seller, negotiating a great deal, and selling that book/author to a publisher are all her own. I say that to point out, one of the primary things Janet teaches her minions is how to read a contract. And I would expect this to be true of every agent. Because part of their job is to take that worry away from their authors, so their authors can get on with writing stonking good books (that was for Claire). :)

Dena Pawling said...


I deal with contracts for at least 25% of every day. I draft contracts. I read and interpret contracts. I negotiate contracts. I litigate contracts.

Sloppily drafted contracts fall into the category of what we call the “full employment for lawyers act”. If the words are open to interpretation, then you have to pay me to litigate it, because someone somewhere will find something to claim as ambiguous.

Signing away your firstborn would fall under the “unconscionable” laws. But signing away ALL of your rights to the entirety of the work for all of eternity would not.

I agree with Craig that declining a contract is not considered negotiating, but sometimes it's the best thing to do. And other times, declining the contract will cause the other party to ask what you'll accept instead. If you state your desired/required terms, you have made a counter offer. What 99% of the folks on the other side of my clients' offers don't realize, once you make a counter offer you have rejected my client's offer. Therefore, if my client rejects your counter offer, you are NOT then entitled to accept my client's first offer - because you have already rejected it. Now, most of the time my client will renew the offer, but not always. I can't tell you how many times even the opposing LAWYERS say “well, it was on the table five minutes ago, so why isn't it on the table now?” Go back to your first-year law school classes. Contracts 101. A counter offer operates as a rejection and a new offer. The first offer is now dead.

Sorry, that was a bit of a rant. It drives me absolutely batty when even LAWYERS argue with me about this.

Back to the topic at hand. Don't sign anything without reading it and understanding it. Negotiate as necessary. As an author, you are considered a business person. You will not [usually] be allowed to raise the defense that you didn't know what you were signing. I hear tenant attorneys claim ALL THE TIME that “my client is unsophisticated”. Many times that's true, altho it irks me when cities pass ordinances that, by their terms, assume ALL tenants living in that city are not only unsophisticated but also too stupid to look out for themselves as the competent adults the law presumes them to be. Sorry, that was another rant. If I was a tenant and subject to some of these ordinances, I would be offended my city treated me like that.

Just because you are unsophisticated won't get you out of most contracts you sign. Stupid is not illegal. As Justice Scalia once said, "stupid but constitutional".

http://abovethelaw.com/2013/10/10-tasty-tidbits-from-justice-antonin-scalia/

Being an author is a business. Absent some pretty egregious facts, you are presumed to be competent. Read and understand [and negotiate] all contracts before signing, preferably with the assistance of competent counsel.

Colin Smith said...

Dena's link: http://abovethelaw.com/2013/10/10-tasty-tidbits-from-justice-antonin-scalia/

Claire Bobrow said...

Thank you, Colin!

Sherry Howard said...

All of this talk about contracts scares me to death. I think it's what has caused me to be so slow to query, and I've dragged my feet, kicked and screamed all the way. I've never signed away anything but first rights to print for short work, and one anthology didn't have any contract at all. This post gave me a headache! I've had a nightmare with a contract I need my past life, with a boarding school for my disabled daughter, and know how much weasel words can cost.

Angie Brooksby-Arcangioli said...

Last november I was contacted by someone who wanted to use my images. It was an exciting prospect. It would have put my name all over France, in a store that all French know. Big boost to the career.

Thanks to this blog and all of Janet's advice, not to mention all the commenters', I asked for a liscensing agreement. I asked a friend to review it. My friend is an IP lawyer who worked for Universal Music. She made the contract better, for me.

The man agreed to everything except the advance. I did not sign. And thus did not get my name in all those stores but at least I won't have a court case to recieve payment.

My friend had insider info. The man was well known for not paying. My friend did not tell me what to do, sign or not, she just laid the cards on the table. I chose not so sign.

If it had been the first contract someone offered me I might have jumped on it. But after bad experiences and sleeples nights, I chose my peace of mind.

The thing that newbies do not realize is that there will be another occaision. There will be another chance to sell your writing, or art. Let's say it again. There will be another chance. It is not a do or die choice. Choose wisely.


Julie Weathers said...

Dena

A counter offer operates as a rejection and a new offer. The first offer is now dead.

Agreed

I once got hauled before the real estate ethics board over a situation like this. Some people complained that I failed to present their contract. They had a property next to the one that came up for sale. I had the listing on the one that came up for sale. Even though I was the listing agent, I could still present offers from the Party B, the neighbors as long as it was all done fairly.

So, Party A, the Owners, declined Party B's low ball offer, which I had truly advised them not to offer. I always did fair market analyses on our properties and we just didn't list high so we could drop the price later. That's a poor way to do business imo. Party B pooh poohed me when I told them the list price was a good price and they should jump on it. Nope, they were going to negotiate a deal because the shyster Realtor was trying to cheat them.

In the meantime Party C came in with a full price offer and the owners accepted it. I asked if they wanted me to go back to Party B and they said no. They got what they wanted and just wanted to move on. Nothing I could do. I got the impression they didn't much care for their neighbors to begin with.

So, Party B files a complaint on me for not representing them fairly. My contract was with the owners even though I am obliged to treat all parties fairly, which I did.

There was no contract between the owner and Party B because the owners declined the offer.

Lennon Faris said...

Ah, more about contracts. If there's one thing I've learned here it's to read the fine print and ask questions. Thanks, Janet!

Amy - you can't know everything on an agent, but there are a lot of ways to research them before you let them rep you. One of the big ones that Janet's mentioned here is to ask to talk to a couple of their clients (after they offer to rep, of course!). If they say no, I believe Janet's words were 'run for the hills.' Although as with anything, you want to word your conversations tactfully. 'So is this agent a total loser when it comes to contracts?' may not jive well :)

Lennon Faris said...

And 2Ns, as always you make me laugh!

Steve Stubbs said...

That reminds me of Frank Sinatra, You have probably heard this, but someone might find it interesting. When he was a struggling singer he apparently signed a contract with band leader Tommy Dorsey surrendering a ridiculous percentage of his meager earnings in perpetuity. When it tirned out his earnings would soon be not meager at alll, he asked to be released. Dorsey said no.

The story is that Frank bitched to his friends, among whom was Mafia chieftain Willy Moreti. Moretti paid Dorsey a visit, said he thought the contract was unfair, and that he would look upon it with great favor if Dorsey would released Sinatra. Once again Dorsey said no. So Moretti pulled out a snub noised .38, put it in Dorsey’s mouth and said he thought Dorsey must not have heard him.

Moretti walked out of Dorsey’s office with the contract in his hand. He paid one dollar for it.

In THE GOD FATHER Mario Puzo fictionalized that as “the offer you can’t refuse.”

Somebody told me when a Mafia don goes to law school he makes you an offer you can’t understand.

Donnaeve said...

Whew, I'm late and have nothing to add with regard to contracts except I'm glad someone else is reading them and not me. I'd be like Melanie. Sign? Show me where.

Panda in Chief said...

I'd be, let me sharpen my crayon first.

Craig F said...

Wait, wait, it just struck me. This isn't about contracts. I got called to the head of the class for mentioning the Falcons in the Stupor Bowl.

My Queen must be a Patriots fan.

Casey Karp said...

Like Donnaeve, I'm late to the party. Hazard of living on the West Coast. But I digress before I even got started.

Amy, one thing you could do to prepare yourself for reading contracts is to get your hands on a copy of the Authors Guild Model Contract. Not because it's an attainable target for your own contracts when that day comes--the odds are wildly against you there--but because it does an excellent job of explaining why each clause is there, and what they feel are acceptable alternatives.

Come to think of it, you might get some interesting insights into an agent you're vetting by asking her what she thinks of the model contract.

Donnaeve said...

The moment when Amy says... :)

Carolynnwith2Ns said...

I'm driving with Kitty over to Melanies to sit on her porch and commiserate with Lennon until he blows booze out his nose from laughing.

Timothy Lowe said...

Very interesting dialogue over the past few days. Glad this community exists to provide all this informative and entertaining conversation.

Amy Johnson said...

Just finished reading all the comments. Thank you to everyone who addressed my question. I so appreciate your input. Earlier this week, some story research led me to Maria von Trapp, and I learned that (reportedly) she did not fair well monetarily with The Sound of Music, as after she wrote her book, she sold the rights to a company that later sold the rights to someone else who made the movie. So the matter of rights has been on my mind the past couple of days. (Interestingly, what reportedly upset the Trapp family far, far worse than the money--or lack thereof--was the image of the father as cold in the beginning of the movie, when he actually wasn't at all like that.) Thanks again.

AJ Blythe said...

What Colin said. I want an agent to tell me what I'm not seeing in a contract. I know I have to decide if I am happy with it, but contracts make my eyes glaze over.