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View Full Version : Ideal Contracts vs. Actual Contracts



jamiehall
11-28-2006, 07:10 PM
I've already found a number of model contracts in books for writers and listed online at places such as the contract page at Writer Beware (http://www.sfwa.org/contracts/). So far, those I've found are either presented as ideal contracts, or as typical contracts that combine characteristics that are frequently found in actual contracts.

However, I realize that the ideal and the actual are often different things. I'm immensely curious about what an actual contract looks like - not one cobbled together based on the policies of several different publishers, but an actual, unmodified contract from a particular publisher that real authors have at some point agreed to. I haven't found any of these so far (POD self-publishing servicer provider contracts don't count - I know that these are easily located online).

Is it illegal to post actual contracts, even after subtracting identifying company details? If so, then I know why I haven't found any actual contracts so far. If it isn't a no-no, I'd really like to see a few actual contracts (not the model contracts). Can anyone point me to some resources?

Birol
11-28-2006, 07:34 PM
You're asking for an author to publish their private, personal business matters in a public venue. It seems like a matter of professional courtesy to not do so. Remember the author is in a business relationship with the people they have contracted with. Even if all the identifying information is removed, it's not hard to learn who the author is contracted with.

This is akin to discussing specifics regarding raises or exact salaries in the work place.

jamiehall
11-28-2006, 08:40 PM
You're asking for an author to publish their private, personal business matters in a public venue. It seems like a matter of professional courtesy to not do so. Remember the author is in a business relationship with the people they have contracted with. Even if all the identifying information is removed, it's not hard to learn who the author is contracted with.

This is akin to discussing specifics regarding raises or exact salaries in the work place.

I meant identifying author information removed as well.

Birol
11-28-2006, 08:48 PM
Tell you what, scan in your latest bank statement and pay stub, delete your bank's name and address, your employer's information, and your identifying information, and then post them here.

jamiehall
11-28-2006, 10:19 PM
Tell you what, scan in your latest bank statement and pay stub, delete your bank's name and address, your employer's information, and your identifying information, and then post them here.

In that case, the identifying information would still be there, because you'd know it was from me. I wouldn't mind posting a bank statement devoid of all identifying information somewhere out there in cyberspace for all to look at (but, of course, if I did it now as some free web site and then linked it from here and said "that's not me" you'd all know it was me).

I wasn't trying to find out the specifics of what some author here got paid as an advance or anything like that. What I was thinking was that the difference between ideal or model things and actual things often turns out to be quite substantial. In particular, most of the "model contracts" I've seen just seem way too short to me. I've seen actual contracts (of different sorts) and they were all much longer than the model book contracts I keep seeing. And, on the rare occasion that I've seen a "boilerplate contract" from a particular publisher, I've always been told that agents generally change a bunch of things on boilerplate contracts anyway, so that these still don't represent the kind of thing that real authors would put a name to.

So, this means that, if most people are like me, we've never seen an example of the type of contract that a real author would actually sign - only those ideal contracts touted as the best possible kinds, or those model contracts roughly cobbled together from the practices of a number of publishers, and perhaps not representing anything that a real author would actually sign anyway.

I just thought that maybe I was bad at searching cyberspace and that an actual contract might already be out there somewhere that somebody could point me to. But I also thought that such a thing might not be available at all, because of legalities or some such thing, and that people here would know that.

If such things simply aren't available, I would appreciate a few hints about the differences. For example, am I right about most actual contracts being much longer than the model contracts that one usually sees, or are book publisher contracts usually that short?

Medievalist
11-28-2006, 10:25 PM
If you're judging length based on a Web page, don't.

jamiehall
11-28-2006, 10:38 PM
If you're judging length based on a Web page, don't.

I don't think I'm doing that. For example, this model contract (http://www.sfwa.org/contracts/pb_cont.htm) is only 5 pages (with huge margins) when I copy and paste it into WordPerfect (this is on regular 8 1/2 x 11 paper). However, the last rental lease I signed is on huge paper, with tiny, tiny text, and is 8 pages long with tiny margins.

I could be wrong, but I don't think I'm mistaking things for different sizes just because they're on websites. Besides, some model contracts are in books, and they still seem to be about as long.

What I'm wondering is, if real contracts are significantly longer, what is in those missing parts that isn't appearing in ideal/model contracts?

Toothpaste
11-28-2006, 10:57 PM
To be honest I don't think it would do you much good to have someone post their contract. It's a bit like someone posting their query letter. The problem (or maybe the great thing) about this profession is that there really is no standard. So for example my agency gets the contract from the publisher and then they adjust it, then it goes back and forth until everyone is happy. So there is no way that that contract is going to be the same as another author's who may have received the same initial contract from the publisher. Let me just say that at least from my experience the contracts are long, and involved, and wordy, and written in tiny print.

Silverhand
11-28-2006, 10:58 PM
Jamie,

Mine was just over 2 1/2 pages long. Obviously, I can't share what is states...but the four contracts I have been offered over the last three years have been somewhere between 2 1/2 pages to 4 pages long.

I hope that answers your question.

jamiehall
11-28-2006, 11:04 PM
To be honest I don't think it would do you much good to have someone post their contract. It's a bit like someone posting their query letter. The problem (or maybe the great thing) about this profession is that there really is no standard. So for example my agency gets the contract from the publisher and then they adjust it, then it goes back and forth until everyone is happy. So there is no way that that contract is going to be the same as another author's who may have received the same initial contract from the publisher. Let me just say that at least from my experience the contracts are long, and involved, and wordy, and written in tiny print.

So, what you're basically saying is that I won't know what to expect until I get one, and that model/ideal contracts are probably only outlining the barest basics?

mysterygrl
11-28-2006, 11:30 PM
Pick up Richard Curtis's book, How To Be Your Own Literary Agent. Also, Kirsch's Guide to the Book Contract, which agents use.

sarahcypher
11-29-2006, 01:17 AM
If you have a contract in hand that you need to evaluate, but don't have an agent who knows the drill, I strongly recommend looking up an attorney who is contract review specialist. If it costs a few hundred bucks to vet the contract, it's pennies on the dollar of what you might stand to lose in royalites.

If your question is hypothetical, try browsing the titles on www.nolo.com. It's a legal press that publishes guides for laymen, and is the source of many, many contract templates. (I and most of the business owners I know use their templates as a basis for our projects.) Look for anything that relates to intellectual property contracts, and more specifically, publishing.

jamiehall
11-29-2006, 01:36 AM
If your question is hypothetical, try browsing the titles on www.nolo.com (http://www.nolo.com). It's a legal press that publishes guides for laymen, and is the source of many, many contract templates. (I and most of the business owners I know use their templates as a basis for our projects.) Look for anything that relates to intellectual property contracts, and more specifically, publishing.

Thank you for the link. No, I don't have a contract right now, and I do intend to get an agent if I can. I'm just trying to educate myself about publishing in as many ways as possible. I had my confidence badly shaken by getting taken in by Authorhouse, and I guess I might be a little on the paranoid side of things now, but I'm hoping that if I just keep arming myself with more information, I'll be better prepared to launch a real writing career.

Toothpaste
11-29-2006, 01:47 AM
Yes I think probably that's exactly what those 'demo' contracts are, sort of a general idea of what a contract is like. I mean I don't know what these contracts list, but there is a whole slew of rights that you can retain or relinquish and depending on the publisher and your agent, I think those can vary greatly. My agent retained world rights, for example, even though the publisher made the offer. The agency I am with is quite good internationally, and wanted to negotiate those things on their own. But of course, I am SO no expert on the subject. I'm sorry about your experience with AuthorHouse, though. But hey, at least you learned from it, and are doing everything to make sure you understand the industry. That is really commendable.

aghast
11-29-2006, 02:58 AM
there are boiler plates and some standard terms such as roralty numbers and standard rights reversal but each contract is different and negotated differently, but its good ot know what to look for when you try to negotiate a contract without an agent or a lawyer

Lucizzz
11-29-2006, 06:15 AM
Like all written forms, a contract has a copyright owner. This means I can't just publish my contract (even sans name etc) on the web if it was drawn up by someone else.

The longest contract I've dealt with was for a screenplay, and it was about ten pages long. Long contracts are usually just when they've taken the time to spell out absolutely everything. It stated not only what was being exchanged in the deal, but made clear the exclusions. Eg, the producer has the right to use the script to make one film, but remake rights, novelisation rights etc stay with me. Definitions also ran for several pages in themselves.

But people often get nervous with long contracts, so most contracts are significantly shorter. Those sample contracts will cover all the things you have to look for (which elements of copyright are being exchanged, what it will be used for, payment, etc) just perhaps not in so much detail.

The key is to make sure there is clarity in the terms. If the person says they are "buying copyright of ProjectX" then you should be wary, as copyright is actually a bundle of rights (novelisation rights, film rights, spin off rights, electronic rights, first use rights, North America Rights, World Rights, etc) and usually you would license the individual rights rather than sell them outright - unless they are offering you a hell of a lot of money upfront to make it worth your while. If you "sell" your copyright in entirety then you can do nothing further with any of the characters or story in any way. And if there is nothing in the contract stipulating that you will be acknowledged as the writer, your work could even be attributed to someone else.

There is no "one contract fits all", as different publishers will have different needs, as will writers, and there is always the negotiation in between. Different terms are used for novels, articles, films etc because each of them is published in a different manner.

jamiehall
11-29-2006, 06:51 AM
Like all written forms, a contract has a copyright owner. This means I can't just publish my contract (even sans name etc) on the web if it was drawn up by someone else.


I suspected there might be a legal reason why I wasn't seeing any actual contracts anywhere.


Long contracts are usually just when they've taken the time to spell out absolutely everything. It stated not only what was being exchanged in the deal, but made clear the exclusions. Eg, the producer has the right to use the script to make one film, but remake rights, novelisation rights etc stay with me. Definitions also ran for several pages in themselves.

But people often get nervous with long contracts, so most contracts are significantly shorter. Those sample contracts will cover all the things you have to look for (which elements of copyright are being exchanged, what it will be used for, payment, etc) just perhaps not in so much detail.


I can see how long contracts would make most people worried, but for me it would be the other way around. I would be wondering if there wasn't something that was being omitted, that would come back to bite me later because it wasn't spelled out.


The key is to make sure there is clarity in the terms. If the person says they are "buying copyright of ProjectX" then you should be wary, as copyright is actually a bundle of rights (novelisation rights, film rights, spin off rights, electronic rights, first use rights, North America Rights, World Rights, etc) and usually you would license the individual rights rather than sell them outright - unless they are offering you a hell of a lot of money upfront to make it worth your while. If you "sell" your copyright in entirety then you can do nothing further with any of the characters or story in any way. And if there is nothing in the contract stipulating that you will be acknowledged as the writer, your work could even be attributed to someone else.


Fortunately, I do know enough about contracts to run away, screaming, from any contract that wants to buy the copyright.


There is no "one contract fits all", as different publishers will have different needs, as will writers, and there is always the negotiation in between. Different terms are used for novels, articles, films etc because each of them is published in a different manner.

I suspected that the ideal/model contracts weren't telling the full story. Which is, I guess, why I was so antsy to see an actual contract in all its unvarnished glory. I wanted to see the other half of the story myself.

But, looking back at my desire, I think it probably wouldn't have done me much good anyway. I still wouldn't be able to sort through all the fine print and understand more than what the books about writing have already told me - and any individual actual contract would probably be very different from whatever real contract eventually comes my way.

If I've bothered anyone here by seeming to pry into your private details, just chalk it up to my over-inquisitive jittery panic brought on by the after-effects of having gone into and out of a POD vanity press. Suddenly, I keep getting the panicky feeling that I must know every little detail about the entire writing industry in order to protect myself. This is not true (it is just my nerves talking) and it is probably not possible for any one person to know that much anyway.

Melissa_Marr
11-29-2006, 07:25 AM
Jamie,

When I was researching, I was frustrated by things I couldn't find, so I decided that if I had a chance later to promote data flow I would. Here's my stab at it . . .

SPECIFICS:
My contract is 21 pages long, standard margins, standard business-type spacing in a Times New Roman (i.e. small but readable) type font. It specifies *everything* in very clear detail. My agency and my house spent weeks fine tuning those details.

The first 14 pages are about my details with my US house. The remaining pages are an attachment/addendum/schedule with details specific to my UK House (since the book was co-acquired). Note that the contract is slightly longer b/c I sold World Rights for 3 books, so subrights needed addressed.

GENERAL:
As I understand it, any agency has a pre-existing "starting point" contract with a house--from there, it's revised/changed/added to via negotiations. (This is also one thing I dig abt having a agent--and one reason I wanted to go that route--they start at a better ground, so they earn that 10-15% agent cut simply by starting at better details/money/et al).

BASED ON PRIOR RESEARCH & Q&A with my lovely UberAgent, Rachel Vater)--
Some things to consider are joint accounting (not in the author's favour), option clause (vague vs specific, what sort of option is it), rights sold (and not sold), payment schedule (how's it split), delivery schedule, royalties, right to audit (i.e. YOUR right to ask for accounting & how that would be handled), sub-rights (if you're selling world rights), and various extras. Again, an agent at a good agency should be an invaluable asset here. My agency was over this thing word by word with each revision. It makes me feel great to know that they look out for me so well.

Note that the houses aren't trying to "cheat"--it's not personal. It's business, so thinking critically about minutia (even with an agent) is wise. I went over the contract very thoroughly and asked a plethora of questions. My agency was cool with this.

There are books on this that help prep you so your questions are more directed too. I read a few that were helpful in my research, but I don't recall titles to suggest (sorry).

Hope that helps.

Melissa

Lucizzz
11-29-2006, 08:13 AM
It is frustrating when you have to become an expert in contracts just to make sure you don't get ripped off. My only suggestion is to see if there's any cheap legal advice available to you.

In Australia there is free contractual advice to members of several writing/arts organisations (eg, the Australian Writers Guild, Arts Law). You have to pay a membership fee, but you more than get your monies worth as soon as you ask them to look over your contract.

Is there anything similar where you live?

Unimportant
11-29-2006, 10:21 AM
Jamie, I suspect contracts will vary widely depending on the publisher.

My partner has a contract with an e-publisher. It's half a page long. My partner also has a contract with a small (respectable, non POD) press. It's nine pages long, font size 11. The boilerplate was *appallingly* bad -- total rights grab, horrible options clause, poor royalties, no rights reversion for the life of the copyright, etc. My partner was able to negotiate changes on some of the offending clauses. (Small press = no agent, so it was a DIY job.)

But I know of at least one author with that house who, in all ignorance, signed the boilerplate. The fact that you know not to blindly sign whatever you're offered puts you way ahead of the game. If/when you get offered a contract, if you don't have a publishing lawyer to consult, and you don't have an agent, and you're truly stuck, the folks here, especially V Strauss, are very helpful and willing to answer questions about specific clauses and contract points.

victoriastrauss
11-30-2006, 03:48 AM
I've already found a number of model contracts in books for writers and listed online at places such as the contract page at Writer Beware (http://www.sfwa.org/contracts/).This is actually from the SFWA website. The book contracts here are seriously out of date (How out of date? They mention Rhodesian rights) and are not helpful if you're looking for knowledge about today's book contracts.

- Victoria

jamiehall
11-30-2006, 05:06 AM
This is actually from the SFWA website. The book contracts here are seriously out of date (How out of date? They mention Rhodesian rights) and are not helpful if you're looking for knowledge about today's book contracts.

- Victoria

If that one is badly out of date, then do you have links to any online model contracts that are up to date?

victoriastrauss
11-30-2006, 06:51 AM
If that one is badly out of date, then do you have links to any online model contracts that are up to date?I'm not aware of one. I'd be wary of researching this kind of information online, anyway, because there are so many people on the Internet talking about things they don't understand. A better resource would be one of the many books on publishing and copyright law, such as this one (http://www.amazon.com/Kirschs-Handbook-Publishing-Law-Publishers/dp/1879505789/sr=1-8/qid=1164854932/ref=sr_1_8/002-6887786-9548007?ie=UTF8&s=books).

- Victoria

RTH
11-30-2006, 11:41 PM
Speaking of contracts:

Assuming that my editor at my small press offers me a contract, is it best to acquire an agent to handle contract negotiations? I'm not sure if it would be worth the 10-15% off my royalties, since it's a small press and not likely to come up much on my percentage, and since I don't know how much having an agent can actually help sales figures.

There is the possibility of a long term relationship with that agent, I suppose, but I'm not sure how likely that is, either...

Ideas? Experiences?

victoriastrauss
12-01-2006, 01:04 AM
If a press pays small or no advances, it's unlikely that a reputable agent would be interested, since there's little financial incentive for them.

Sometimes agents will give contract advice for an hourly fee (be sure the agent is reputable), or you could look for an intellectual property attorney with publishing experience. Publishing contracts contain terms and clauses not found in other kinds of contracts, and someone who isn't in this field may not know what to look out for.

- Victoria

jamiehall
12-01-2006, 01:15 AM
Publishing contracts contain terms and clauses not found in other kinds of contracts, and someone who isn't in this field may not know what to look out for.

- Victoria

I agree. I've heard a number of stories about two situations:

(1) A lawyer with no experience in publishing gives approval to what is actually a bad contract (including some stories about lawyers deciding there was nothing fishy about contracts offered by vanity presses (http://en.wikipedia.org/wiki/Vanity_press)).

(2) A lawyer with no experience in publishing gives a publisher a lot of grief by challenging clauses that are actually completely normal, which, of course, ends up reflecting badly on the author even though it isn't the author's fault.

You want to avoid both situations. A lawyer from a different field might think of himself/herself as qualified to judge a contract, without realizing that publishing contracts are very different from other contracts.

victoriastrauss
12-01-2006, 08:17 PM
A couple more thoughts about book contracts.

First, while it may seem premature to be thinking about publishing contract clauses before you start submitting, I would urge any author who is serious about obtaining commercial publication to educate themselves in this area. True, it's likely that you'll have an agent to do your negotiating for you--but that doesn't mean you can sit back and let the agent do all the work. You should understand what your agent is negotiating and why; and you should be able to be an educated second reader on contracts, royalty statements, subrights deals, etc. Agents make mistakes; publishers let things fall through the cracks. You need to keep track of your own writing career, and to do that you need to understand something about the technical stuff.

Second, publishing contracts are dynamic documents that change with the changing climate of publishing. It's not enough to read a book--even a very good book--on contract terms. You need to keep track of what's happening in the publishing world, so when changes happen, or issues arise, you'll understand what's going on. Get a subscription to Publishers Lunch (the daily newsletter is very informative). Read Publishers Weekly (a subscription is costly, but you can find it in your local library). Read the blogs of established publishers and editors.

Knowledge is your best defense!

- Victoria

ATP
12-03-2006, 06:43 PM
I would like to suggest that this perspective and attitude should be endorsed and applied equally by non-fiction writers to contracts work and negotiations for both books and articles. It is not a case of 'a little bit of knowledge is a dangerous thing', but rather 'knowledge is power'.

As VS indicates, it is for the betterment of your livelihood and your own protection. It is time certainly well spent.