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View Full Version : Contracts are hard, but we still need to read them.



KathleenD
03-02-2010, 07:31 PM
I just blew my morning writing time on wrestling with a contract. I know rationally that this is a good problem to have.

But GOOD GRIEF. My eyes are bleeding. Umpteen pages with clauses that contradict each other! Typos making some sections refer to subclauses that didn't exist! And the language, lord, the language. Would it kill people to render a contract in language that a reasonably bright person could comprehend?

The thing that really confuses me is that this thing was boilerplate. There's no way this was generated just for me. I'm too new and too unimportant. Half of the thing didn't even apply to what I've written.

That means other people have signed this document, typos, contradictions, and all.

And that's why I'm using the last five minutes of my writing time this morning to post a note saying please, don't sign things you haven't read, even if reading them makes your eyes bleed.

Sevvy
03-02-2010, 07:35 PM
This PSA also applies to credit card applications, anything a lawyer shoves across a table at you, and when you enter contests.

The more you know, etc.

Seriously though, you should be damn proud of yourself for wading through it, because I bet most people don't. I would like to seriously add that if there's anything in a contract that you don't understand, don't ever be afraid to call up someone and ask them to explain it to you. Better safe than sorry.

Noah Body
03-02-2010, 07:41 PM
If you're severely confused by what appear to be an unending stream of contradictions, then you should seriously consider getting a lawyer to review the contract on your behalf. An entertainment or contracts attorney would be a good bet. Remember, the contract issuer is more interested in protecting their rights as opposed to yours; boilerplate or not, do not presume the contract to be fair and equitable.

KathleenD
03-02-2010, 11:39 PM
Realistically, I'm not expecting to make a lot of money from this piece. It doesn't make sense for me, at the very beginning of my career with no established reputation or clout to alter a contract, to buy four hours of lawyer time.

The contract is fair in that they have money and will give me some in return for my work. I do not have any money, and would like some. It is entirely biased towards the publisher, but it still represents a big opportunity for me.

And I know I'm shaking my fist at the rain here, but it's just infuriating that this crucial document is so hard to read that I'm the first person to even notice that 1(b)(vii) tells me that it works in concert with 17(e)(iii)... but there is no 17(e)(iii). Or, if I'm not the only one to catch it, there have been so few of us to do so that there hasn't been any pressing need to fix the boilerplate.

At any rate, I did hire a contract lawyer for one hour of his time after I caught that beauty just in case there were more such things. And I'm annoyed at that outlay, too. My precious, precious novella put me 250 in the hole, when it was supposed to push my balance sheet the other way :P

Ruv Draba
03-03-2010, 12:05 AM
There's no reason that a properly-written contract should not be readable to an average human. Perhaps the main problem is that since so few people read them, few people care about them.

I'm no lawyer, but I read a lot of contracts in my job and I often have to negotiate changes. A contract is no different from a story-design in which the author has settled on the characters, motives and consequences, but not the actual plot.

The characters are the Parties to the contract.

The motives are the common purpose for which they're making an agreement.

The rules and consequences are just a bunch of hypotheticals to describe what moves each character is allowed/not allowed to make, and what may happen if they do.

The important things to assure about a contract are that:

All the right characters are involved -- and only the ones relevant to the story
The right motives are attributed to the right characters
Each of the characters gets to act in a way that is natural to them and reasonable -- ie, the rules & consequences don't block off avenues that a reasonable character might want to take
Every reasonable contingency is covered equitably
Any legal dispute is resolved in the right jurisdiction
All the words mean what you think they ought to mean
No matter what bad thing may happen, the characters can all exit the story living happily ever after
I've seen some very funny clauses in contracts. For instance, one of my staff had a car lease that said, effectively:

This thing you call a Car, we at the Finance Company consider to be a Slowly Rusting Asset. No matter what you may do to it, it remains our Slowly Rusting Asset and if you try to keep us from getting it at the end of the lease, we will come fuck you up.

If you chain your kids to it and call it a Play-Set, you give us permission to amputate their arms rather than scratch the paintwork. If you bolt it onto your house and call it Accommodation, you give us permission to jackhammer your walls down. If you fill it full of endangered fish and make a Pond Ornament out of it, you give us permission to bust the windows in, kill every last Patagonian guppy inside it, and tow it. If you get plastered on cough-medicine, drive it into the desert, dump it and hitch home, you give us permission to apply a blowtorch to your feet and make you spend the rest of your miserable life finding it again. If you cover it with indigenous artwork and make a Sacred Site of it, you give us permission to grab it, sand-blast it, and return it to its Slowly Rusting pristine state.

In short, you understand that this clunker is Ours Eternally and if you get between us and it at the end of your lease, you agree to be Our Bitch Forever.
Reading this contract cracked me up. Lawyers add clauses to contracts because of past bad experiences. What bad experiences with leased cars, I wondered, had caused all those Rules and Consequences to be added?

Noah Body
03-03-2010, 12:20 AM
Realistically, I'm not expecting to make a lot of money from this piece. It doesn't make sense for me, at the very beginning of my career with no established reputation or clout to alter a contract, to buy four hours of lawyer time.

The contract is fair in that they have money and will give me some in return for my work. I do not have any money, and would like some. It is entirely biased towards the publisher, but it still represents a big opportunity for me.

And I know I'm shaking my fist at the rain here, but it's just infuriating that this crucial document is so hard to read that I'm the first person to even notice that 1(b)(vii) tells me that it works in concert with 17(e)(iii)... but there is no 17(e)(iii). Or, if I'm not the only one to catch it, there have been so few of us to do so that there hasn't been any pressing need to fix the boilerplate.

At any rate, I did hire a contract lawyer for one hour of his time after I caught that beauty just in case there were more such things. And I'm annoyed at that outlay, too. My precious, precious novella put me 250 in the hole, when it was supposed to push my balance sheet the other way :P

Very well, then. :)

KathleenD
03-03-2010, 12:31 AM
I hope I didn't sound like I was fussing at you, Noah; I'm never at my best after reading contracts. You should have seen me after I signed mortgage paperwork. My frustration is with the process - your advice is quite good. I'm hot and bothered that your advice is necessary.

Ruv: Nice. I needed orange juice all over my keyboard. Good job. :ROFL:

Last time I'll post, I swear. But in the interests of fairness: I sent my notes and questions to the legal department of the publisher in question, and got very polite, very friendly, and VERY clear clarifications in return... less than three hours after my hitting send. And a fixed contract.

Just goes to show some lawyers exist to make things easier, even if some others exist to make things harder.

Mr Flibble
03-03-2010, 12:31 AM
That's why I make sure to be extra friendly to my local IP lawyer. The fact she's the wife of the local pub's landlord has nowt to do with it :D

Noah Body
03-03-2010, 12:57 AM
I hope I didn't sound like I was fussing at you, Noah; I'm never at my best after reading contracts. You should have seen me after I signed mortgage paperwork. My frustration is with the process - your advice is quite good. I'm hot and bothered that your advice is necessary.

No, I didn't take it that way at all; you explained your circumstances, so I could hardly be annoyed. Sorry my response seemed hard-edged, I didn't mean it to be so.

But I am a talentless hack, after all. :D

C.M.C.
03-03-2010, 01:26 AM
Of course contracts are complicated. They have to try to take into consideration anything and everything that could come up. It's not exactly something that can be done in the simplest of terms.

ania
03-03-2010, 01:28 AM
Yes. I almost signed mine without reading, assuming it was a standard contract and "nothing could be wrong" in a standard contract. WRONG.

I've been in a difficult negotiating stage for several weeks now, and it is excrutiating. And my contract is very well written.

Please, always read your contracts, no matter what. Even if it is a small press, and you are not in it for money (that was my logic for not reading it). Apparently there are things which are not really money related that are important to sort out. Like first rights, electronic rights, and all kind of other rights.

Jamesaritchie
03-03-2010, 01:39 AM
A contract you can't understand is a bad contract.

Wayne K
03-03-2010, 01:55 AM
Mine was simple, and I still let the wife's brother look it over. If you don't understand something, don't sign it.

Noah Body
03-03-2010, 01:59 AM
And the truth is, you shouldn't.

LuckyH
03-03-2010, 04:18 PM
I had started to write something by way of explanation about complicated contracts, when I suddenly realised that I have spent four days in the highest court in the land, after two years of legal correspondence (in England), involving an extremely complicated breach of contract case. How could I forget that? The lawyers were bringing documents into court on wheelbarrows.

The case involved two literary agents, two publishers, the BBC and ITV, and an army of lawyers. The lawyers won.

My sad conclusion is that it doesn’t matter what you sign, or how well advised you are, if someone wants to sue, you’ll lose a lot of money, even if you do the suing.

Jamesaritchie
03-03-2010, 07:35 PM
Contracts are complicated in order to keep lawyers employed. The rights a pubisher wants may be boilerplate, but the words they use to ask for those rights should never be set in stone.

If you don't understand a clause, call and ask for specifics, record the phone conversation, and, if need be, ask that the contract be amended for simplicity.

Shadow_Ferret
03-03-2010, 08:10 PM
I don't read contracts. If it's important, I hire someone to read it for me. And your reasoning for not hiring a lawyer is exactly why I would, because I am new to this and want to get off on the right foot.

cwfgal
03-03-2010, 11:40 PM
Contracts are complicated in order to keep lawyers employed.

Or do lawyers stay employed because contracts are so complicated?


If you don't understand a clause, call and ask for specifics, record the phone conversation, and, if need be, ask that the contract be amended for simplicity.

DO NOT record a phone conversation without asking permission to do so first. It is against the law in several states and fineable up to something like $10K plus jail time, plus the injured party can sue you for punitive damages. Even if it isn't illegal, it's often useless as evidence in any court case unless you have the consent of the other party.

Beth

Ruv Draba
03-04-2010, 12:12 AM
You can make file notes on the conversation -- just date them -- or do as I do and email the person you've spoken to right back with your notes:


Dear Leasing Company,

Thank you for responding to my phone enquiry today, concerning the vehicle leasing contract for my staff Mr Freddy Fudpucker in which you clarified what Our Bitch Forever actually means.

In consequence of that conversation, I now understand that you intend this clause to apply not only to Mr Fudpucker, but his goods, chattels, extended family and all current and future descendants whether by blood or adopted, for the effective life of the Slowly Rusting Asset. You didn't stipulate, but I presume that this also includes Mr Fudpucker's substantial donations to the YWasteIt sperm bank. Accordingly please be advised that we are shipping you by registered post today his relevant inventory.

KathleenD
03-04-2010, 12:17 AM
Oh no, you don't get me twice in one thread. I put my drink down before clicking.

Unimportant
03-04-2010, 02:13 AM
The excuse I hear too often is "I trust the person who sent me the contract." This is usually because Author and Publisher Person Who Sent The Contract both belong to the same group or community (usually defined by religion, race, or sexuality).

Bad idea.

My advice is always: Five years from now this contract will still be in force. But The Friendly Person Who Sent You The Contract may not work there five years from now. Imagine if that person quits and gets replaced by your most deadly enemy. Will you be able to live with the contract if that person who hates you enforces and exploits every clause to the fullest extent of the law?

CAWriter
03-04-2010, 02:13 AM
I don't read contracts. If it's important, I hire someone to read it for me. And your reasoning for not hiring a lawyer is exactly why I would, because I am new to this and want to get off on the right foot.

I have someone (my agent) to read contracts, but I still read them myself. Sometimes there are factors that matter to me that he might not bother about. When I got a 3 book contract, overall it was quite acceptable, but there was one significant thing I wanted changed. I mentioned it to my agent and he replied with "I never ask for that to be changed; it's standard." I told him there was no harm in asking. When he phoned after talking with the publisher he started the conversation with "Maybe you should be the agent. They agreed."

Sure contract language is complicated and "hard," but it's not impossible and as it's your reputation/money/work, etc on the line, you have an inherent interest in the details. And those details can be learned. There are even a couple of very useful books specifically to help writers understand publishing contracts.

It can be farmed out, but I guess I'm enough of a control freak to want to be sure I still 'get it' myself.

Ruv Draba
03-04-2010, 02:45 AM
Five years from now this contract will still be in force. But The Friendly Person Who Sent You The Contract may not work there five years from now. Imagine if that person quits and gets replaced by your most deadly enemy. Will you be able to live with the contract if that person who hates you enforces and exploits every clause to the fullest extent of the law?
All true. In the very best relationships, contracts aren't ever needed. We file them in a drawer and build on great relationships and everyone understands one another and we all live Happily Ever After.

But even the best relationships can suddenly go sour. Overnight, the other guy is claiming that our business-partner had non-consensual sex with his chihuahua, our bank-account is unaccountably empty, we're getting missed phone calls from Rio, and we've just discovered that our mother-in-law is a majority shareholder in the other guy's biz.

I once -- just once -- trusted a large amount of high-risk work to a good relationship without a contract. The guy we had the good relationship with was fired for sloppiness, and I ended up facing a roomful of hard-faced bus-drivers (it was a bus company) with broken-veined noses, callused knuckles and bus-strength tyre-irons demanding why they hadn't got what they'd never asked us for, why they'd paid us more than they'd ever planned to and what we were going to do to fix their mistake.

I had to explain to them that we'd been doing what we thought they needed, not what they thought they wanted, that we'd been doing it in good faith, that it had gone on for much longer than we'd planned, and that half of what they now wanted we'd never heard of. And while all of that was true, it made me feel like I needed a used-car lot and a gold tooth.

My moral: always have a contract. Make sure the contract plans for the worst that can happen. Ensure that it's sensible, easy to enforce and well-understood. Then put it in a drawer and work hard on maintaining good relationships, and never assume that good intentions alone will produce a happy ending.

Libbie
03-04-2010, 04:41 AM
A contract you can't understand is a bad contract.

For sure.

I only needed clarification on one small point with my agent's contract. It was all very easy to understand and well written.

Jamesaritchie
03-04-2010, 04:43 AM
Or do lawyers stay employed because contracts are so complicated?



DO NOT record a phone conversation without asking permission to do so first. It is against the law in several states and fineable up to something like $10K plus jail time, plus the injured party can sue you for punitive damages. Even if it isn't illegal, it's often useless as evidence in any court case unless you have the consent of the other party.

Beth

Lawyers write the contracts, so if they;re complicated, they get the blame.

Always check your state laws, but in my state you may record ANY phone conversation if either of the parties involved knows it's being recorded.

In most other states, you may record any phone conversation if there is a beep every so many seconds, usually every fifteen seconds. If the other person doesn't know a repetative beep means the call is being recorded, that's his tough luck. Legally, he's supposed to know, and the beep is considered informed consent.

In either of the above cases, the recording may be used in court.

But my belief is that every business call should be recorded, it's nuts not to do so, and if your state law says you have to ask, then ask. No honest businessperson is going to refuse.

LuckyH
03-05-2010, 09:23 AM
The excuse I hear too often is "I trust the person who sent me the contract." This is usually because Author and Publisher Person Who Sent The Contract both belong to the same group or community (usually defined by religion, race, or sexuality).

Bad idea.

My advice is always: Five years from now this contract will still be in force. But The Friendly Person Who Sent You The Contract may not work there five years from now. Imagine if that person quits and gets replaced by your most deadly enemy. Will you be able to live with the contract if that person who hates you enforces and exploits every clause to the fullest extent of the law?

I wish I had read this post 15 years ago.

shaldna
03-15-2010, 03:52 PM
I just blew my morning writing time on wrestling with a contract. I know rationally that this is a good problem to have.

But GOOD GRIEF. My eyes are bleeding. Umpteen pages with clauses that contradict each other! Typos making some sections refer to subclauses that didn't exist! And the language, lord, the language. Would it kill people to render a contract in language that a reasonably bright person could comprehend?

The thing that really confuses me is that this thing was boilerplate. There's no way this was generated just for me. I'm too new and too unimportant. Half of the thing didn't even apply to what I've written.

That means other people have signed this document, typos, contradictions, and all.

And that's why I'm using the last five minutes of my writing time this morning to post a note saying please, don't sign things you haven't read, even if reading them makes your eyes bleed.


This is why I have a lawyer, well, solicitor, and she's my sister in law, so she works for free.