CRASH COURSE IN CONTRACTS FOR WRITERS

by

A CRASH COURSE IN CONTRACTS FOR WRITERS – D.G. Valdron

A CRASH COURSE IN

CONTRACTS FOR WRITERS

Used to be Book and Publishing Contracts were very simple.

You signed a contract

Someone gave you money

You delivered a product… Preferably on time.

HA! I LIED!

IT WAS NEVER SIMPLE!!

BUT IT HAS GOTTEN A LOT MORE COMPLICATED!!!

 

 

Caveats, Apologies, Evasions and Insults

I am a lawyer, by my area of Practice is Aboriginal Law – I represent Indigenous peoples and fight for indigenous issues.

I do not actively work in or make my living as a lawyer in the fields of intellectual property and entertainment law.  My avocation as a writer, work with arts and writers organizations. volunteer work with writers, research and reading gives me some grounding in this area.

I do not pretend to be an expert – I know a little more than you do.  My objective is to share.

This Crash Course does not constitute a formal legal opinion, nor does it constitute legal advice.

It is solely for education and information only, intended to provide a basic grounding in key concepts and their application. It is a beginning primer.

The recipient is encouraged to continue to learn, read and research on the subject and the issues surrounding same.

Contracts 101

A contract is a legally binding and enforceable agreement or promise

Not all agreements or promises are intended or have legal effect

Contracts for practical purposes are defined by two features.

1. Exchange of Value – ‘Offer, Acceptance and Consideration’ – consideration is value.

2. Certainty. A clear understanding and specifics as to what is being given and received. That means amount, time, date, details – contracts can get void for uncertainty

Contracts are not necessarily in writing – there are all kinds of oral contracts – matter of proof.

But don’t get comfortable. Any intellectual property license or assignment must always be in writing.  Emails are good.  Handshakes are not.

Publishing Contracts

Little bit more complicated, because they involved the manipulation and administration of copyright.

What is Copyright? – DID YOU TAKE MY OTHER CRASH COURSE? – Refresher

It’s the Right to Make Copies – duh!

Distinction Between a work and the copyright
– Picture of a duck, a physical manuscript, a painting – are all works
– Photocopies, printings, broadcasts, translations, productions – all copies.

What are basic elements of copyright.

– creative work – stories, novels, poems, jingles, photographs, pictures, films, any number, songs, sheet music, video, sculpture, statue, etc.

– must be fixed or recorded
A dance, an improv show, an extemporaneous speech – no go
Robert A. Heinlein got rooked by Forrest J. Ackerman

An recording of an improv, a speech, or video of a choreography, notes for this lecture
All sustain the copyright – for the one that recorded or took notes

– ideas are not copyright, anyone can use an idea
Copyright covers the expression of an idea

– facts not copyright – DaVinci Code / Holy Blood Holy Grail

– title cannot be copyright –

Bundles of rights

– includes copying, translation into languages, re-imagining, characters, settings, components, interpretation into formats (books to movies) (drawings to sculptures), broadcasts, time periods, jurisdictions

Term of Copyright

– Life of Artist (writer) plus 50 years (70 in Canada and US)
– Corporations and unknown artists – 50 years (70 in Canada and US)

Who Owns Copyright?

– Creators own –
– Work for Hire – American… Canada has an equivalent.
– Subsidiary Copyrights, nested copyrights – movies as an example
– Joint Copyrights / Collaborations
– Independent creations – two people doing the same thing without knowing
– Unpublished

Moral Rights – originally french

Right to be recognised as author
Right to integrity of the work –
Canada recognises for authors, US recognises moral rights only for visual arts
Can be Waived – not sold

Publicity Rights – Kim Kardashian, Son of Bela Lugosi, Three Stooges
Privacy Rights
Trademarks and Marks in Trade – Friendly Giant

Why do we care about Copyright? Isn’t this a Publishing Contracts Workshop

Because you haven’t written the Gutenberg Bible
The legal property you are negotiating, is not simply your work but your rights to copy it.

Assignments and Licenses, difference – express
Always go with licences
Unequal bargaining power
The rights you sell
– duration/time period
– jurisdictions
– specific bundles

That’s what you focus on in the contract, rights to make copies

Books and Magazines

Initially, very unequal and one sided – and for a very long time –

Publishers had all the power

Very few writers had independent bargaining power

Some balance – Trade Associations, Guilds, attempting to promote standards, monitor fly by nights, establish basic rates.

Competition between publishers, multitude of publishers and publication outlets allowed for some decent treatment.

But it often resulted in situations of oligopoly and monopolistic practices, which reinforced unequal bargaining power.

Combination of all that were a series of industry standards, and standard agreements, somewhat standard rates.

Work for Hires – you have no rights at all, you’re like a carpenter or a gas station attendant, do a service, they walk away with all rights. You see this with licensed properties

Lot of resentful writers – Don Glut, He Man, Ninja Turtles, I Am Number Four.

Avoid them like the plague – Work for Hire, not Don Glut or Ninja Turtles

Or at the very least, demand the highest price you can

That’s all you’ll ever see

Most times, publishers don’t bother with work for hire
Cheaper to buy free lance
Turns out, most work is just not that valuable

Newspapers, magazines, etc., used to just demand First North American serial rights

If you could peddle it somewhere else, that was fine with them

There was an opportunity – Reprint market, features, collections

Magazine, Newspaper contracts were pretty simple – free lance contracts

They agreed to buy a story,
Sometimes they specified subject matter, title, approximate word count
You guaranteed you were the original author
Delivery by a specific date
Publication by a specific date
Pay a fee, usually flat fee or word rate
Usually paid on delivery, sometimes on publication
Contract was about a page, standard form, no negotiation

Internet and electronic and online publishing changed that. Huge battle over rights issues. Scope of rights publishers tried to grab expanded dramatically.

At the same time, print media went into steep decline

Which meant rates went down for free lancers – couple of reasons

Market flooded with writers
Internet flooded with competitive content
Publishers were dying on their feet

Publishers wanted more and more rights for less and less money

Still not solved – don’t know where it’s going, the magazine and newspaper industry are in free fall

Attempts to find and develop viable commercial models on the internet

Subscriptions
Advertising

Until there’s a stable model, hell for writers.

Book Publishing

Similarly unequal situation –

Most publishers represented or had access to an extensive infrastructure, that was not available to the writers. This was what they brought to the table
Editing
Typesetting
Printing and Binding
Cover design
Warehousin;
Marketing
Distribution and Delivery
Book Clubs
Book Stores
.
The writer brought:
Themselves (their ‘brand’)
Their book
Maybe an option on future books?

Usually it was just the book:
writer often an unknown quantity

Sometimes it was the writer:
known quantity,
capable of steady delivery/quality
working to deadlines
Someone’s friend or relative
Sometimes the writer was Famous

Basic Book publishing contracts revolved around certain things

Delivery dates – had to trust you, previous record – or had to have the book

Book had to be usable – appropriate word count, subject matter, quality of contact
quality – Joan Collins, Milo Gianapolis

Rewrites, Revisions, Editorial Changes, Final and Rejection

Royalties based on sales, calculated on a formula
Complications – royalties based on different marketing
* For instance, sales to Wal-Mart, discount books – reduced royalties
Sales as audio, ebooks, etc.
* Giveaways – no royalties
* There is no net – never sign for royalties based on net

Royalties – the Big Enchilada

What are Royalties? – They’re the money you get paid for each copy that is sold

Why are they complicated?

Because of all the different kinds of ways that a copy may be made
Hardcover
Trade Paperback
Mass Market Paperback (pocketbook)
Magazine serial
Ebook
Audiobook

Because of all the different places and means a copy may be sold
International jurisdictions
Book clubs
Bookstores
Online

Advances commonly paid based on anticipated royalties
How much of an advance?
When do you receive the advance?
On signing? On Delivery? On final acceptance?
Usually staged – percentages at each stage
Advances refundable?
Payment on publication??? – No!

Some discussion of derivative rights, wasn’t usually a big deal – really big deal now
Audio Books – Dave Duncan
Ebooks –
Derivatives – sequels, spin offs, series, characters
International markets / outside US and Canada
Translation rights
Radio / film / television – brass ring

How do you get your rights back now? Big Question.

In the old days, it just went out of print

Now, it should be built into the contract

TECHNOLOGY HAS CHANGED THE LANDSCAPE DRAMATICALLY

Rise of big box bookstores, concentration of bookstore industry

Computerised printing and typesetting, print on demand, small press runs

Rise of small press / independent press / self publishing

New means of getting books out into the marketplace

E-Publishing – Amazon, Smashwords, Draft2Digital, Websites
Audiobooks – the current game changer

This has created a lot of changes in the practical implementation of the landscape

EXAMPLE – Publishers more likely to seek wider and wider list of rights and control over material
* Used to be that if a publisher would in Canada might only want Canadian, or at least Canada/American – now more likely to seek international
* Strong incentive to go for lottery tickets – rights in as many areas, even if they aren’t positioned to exploit
* Language for undefined and future rights, future technology – sketchy

EXAMPLE – When and how do you get your rights back?
* Used to be, when a book goes out of print, rights reverted back.
* Now between POD and Ebooks, a book may never ever go out of print
* Automatic expiration dates?
* Minimal sales standards?

GET GOOD REPORTING: – Donadio & Olson literary Agency, Chuck Palaniuk – fight club

* How payment is made – through agent or publisher

* Direct copies of reports.

* Learn to read them.

SHIFT OF RESPONSIBILITY TO MARKETING AND PROMOTION TO WRITERS
* Big one
* Amazon now offers a feature where writers can pay to have their trad books advertised

CHANGES IN LEVERAGE AND MARKETING POWER
* Publishers in poor shape, struggling to keep up with tech and market
* Advances have gone down, money is down
* More publishers and more continuum of publishers
* Majors
* Medium
* Proliferation of small presses
* Self publishers
* Independent operations

INDIRECT CHANGES
* Travelling clauses – if an Editor changes house – can be critical

WHOLE INDUSTRY IN FLUX – STORIES ABOUND

SHARK INFESTED WATERS

In the old days, there were mainly three kinds of contracts you needed to worry about:
* Magazine contracts
* Book contracts
* Agent contracts (sometimes no more than a handshake or genteel agreement)

Now with the Industry in Flux, there are more variables. As a result, there are more external contracts, examples:

* Agent contracts and terms have evolved, there are now pretty standard contracts
* Also fly-by night pseudo-agents
* Need for clarification of work expected from an agent – what do they do = Standards have gone up

* Free Lance Editors – Publishers offloading responsibility / Writers desperate to polish
* Often contracts not well documented or clear
* Difficulty in finding the right fit – working relationship

* Marketing and Publicity services

* For Self Publishers, a variety of services, options and platforms
* Platforms – Amazon, Audio, Draft2Digital
* Production companies that will literally do your book for you
* Cover designers and artists
* Component contracts
* Printers
* Website services

* Contests
* Legit, Filter Feeders and Scams

* Vanity Presses – Hybrid Models
* Just Say No

BASICS FOR YOUR PUBLISHING CONTRACT

* Know the publisher, get background, information, ask around

* Always read the contract. Even if you don’t understand it, read it.

* Get independent advice – lawyer, or agent, preferably someone specializing in field
Don’t ask your divorce attorney, the guy who did your will, or represented you on your driving charge – this is a specialized area.

* Focus on the following:
* When and under what terms do I deliver?
* What are the conditions and requirements for delivery?
* What rights are they asking for? Make a list.
* What rights do I want to give them?
* What compensation do I get for each of these rights?
* How do the royalties work?
* When do I get paid?
* Do I get Statements or Accounting? How often?
* HOW DO I GET MY RIGHTS BACK?

* Don’t be afraid to ask questions / ask for changes

* Don’t be afraid to walk away

Never be afraid to walk away

FUCK FRIENDSHIP – NO ONE IS YOUR FRIEND, NOT YOUR PUBLISHER, NOT YOUR AGENT, NOT YOUR LIFELONG BUDDY

This is the difficult part – the business operates on personal relationships, particularly networking, contacts and friendly relationships

Trust counts for a great deal.  Faith counts for a great deal.

There is a strong incentive, a peer pressure to be conciliatory, friendly, to see things in friendship, to trust and have faith.

Writers are often highly dependent and trusting

Chuck Pahlaniuk almost went Bankrupt because the accountant at Donadio & Olson stole $1.4m in Royalties and advances – so much for Trust and Faith.

Dave Duncan published over thirty novels through his agent, made his agent a lot of money – but then his books slowly stopped selling, and the agent stopped returning his calls, business is business.

An Agent has so many inquiries, that whether they like someone can be a major factor in representation…  among many factors.  An Agent, if they like you, will work hard for you.  That doesn’t mean they’re competent or effective.

A publisher is taking a chance on you, of course you’re going to be grateful

BUT everyone is friends right up until they’re not friends – you should document your affairs and arrange your relationships so that you are covered when you are not friends

THERE ARE WAY TOO MANY STORIES ABOUT HOW THE WRITER GOT SCREWED. OFTEN, IT COMES DOWN TO ‘SHIT HAPPENED’  BUT ACTING LIKE A PROFESSIONAL MAY SAVE YOU SOME HEADACHES.

BEST PRACTICES

Set up a dedicated file – print all your correspondence, keep it in the physical file – hard drives crash, emails disappear

Keep all your receipts, you can write it off

If self-publishing, document every damned thing – contracts with artists, cover artists, book designers, make sure you’ve got your copyrights licensed or assigned

Don’t trust transient information flow – if someone says it by phone, it never happened – follow up with a note or email summarising the conversation, for a record and proof.

Never give more rights than you need to.

Be careful where you get your advice – your local accountant, divorce attorney, etc., probably doesn’t know much.

They need to acquaint with specialized material

Or if you can access industry professionals or semi-professionals, ask them.

Alternately – look to professional and semi-professional organizations – CAA, SFWA, Periodical Writers of America, etc. etc.

THE ELEPHANT IN THE ROOM – ARTIFICIAL INTELLIGENCE

I’m probably not even going to discuss this directly in the Presentations themselves.  There’s too much other ground to cover.

The topic is just too big –  and too much is in Flux.

There are no hard and fast rules right now.

Artificial Intelligence operates on the basis of Piracy – scraping the work of writers

This is legally controversial – and there is huge push back, including Class Action lawsuits, individual lawsuits, various actions and protests.

AI Claims that scraping is legal

AI proponents, despite this claim, are actively going around inserting secret wording into service contracts allowing for Scraping or  “Training” – Zoom, Facebook, Wattpad and WeTransfer have been caught or exposed.  This is controversial and there is pushback.  WATCH OUT FOR THOSE CONTRACT CLAUSES.  SPREAD THE WORD, COMPLAIN, PUSH BACK, IF POSSIBLE AVOID.

As a general rule – Never consent to scraping ‘training’ – avoid sites or platforms which do it.

Scraped or ‘Training’ Data is not necessarily confidential – Beware.

Plagiarism is a thing – the more unique your work is, the more chance of it being actively and actually plagiarized By AI.  AI consists of generating averages from scraped material weighted by prompts.  The more unique the scraped source – the fewer sources scraped, the more risk of actual direct copying.  This is documented.

There is general hostility to AI in the writing / publishing / arts community, and many contracts now require either disclosure or prohibition of use.  So be careful.  Either avoid it entirely, or use it in extremely narrow and limited ways.  It can kill your reputation and your future.  And you may deserve it.

Because AI currently cannot sustain copyright, there’s a whole nightmare nest of issues revolving around its use.  It’s essentially trafficking in public domain.  At the same time, because it cannot sustain copyright, that may expose underlying owned copyrights, creating liability and another nightmare nest of issues – you don’t want Disney suing you.

Right now, there are billions of dollars at Stake in AI development, business and corporate interests are literally drooling at the prospect of fucking entire classes of workers and creators over, it is being shoved down everyone’s throats,  judges, lawmakers, stakeholders are all engaged.  It’s the wild west folks.

RESOURCES

YOUTUBE VIDEOS BY D.G. VALDRON (shameless self promotion)

WRITERS: INTRODUCING PUBLISHING CONTRACTS, WHAT YOU NEED TO KNOW

WRITERS: PUBLISHING CONTRACTS – COPYRIGHTS AND LICENSES

WRITERS AND CONTRACTS: ROYALTIES AND ADVANCES

WRITERS: CONTRACTS & TERMINATIONS

WRITERS: TALKING INDY PUBLISHING CONTRACTS

WRITERS: NEVER PAY A PUBLISHER

The Future Coming at You – Artificial Intelligence & Writing with D. G. Valdron

Also

CAA TORONTO CHAPTER EVENT – Copyright and You, A Crash Course by D.G. Valdron | Canadian Authors Association

Other Video

Understanding Book Contracts Negotiation for Authors: Key Tips and Essentials

Book Contracts 101

How Can Authors Negotiate Contracts?

ONLINE SAMPLE CONTRACTS AND RESOURCES

Science Fiction Writers of America is an invaluable resource with a variety of model contracts and an ongoing contracts committee which offers annotated model contacts for books, anthologies, short stories, agents, etc, which can be used as a benchmark for interpreting and analyzing contract documents you may receive or be working with.  Feel free to poke around.

https://www.sfwa.org/what-is-sfwa/committees/contracts-committee/

https://www.sfwa.org/category/information-center/contracts-and-copyrights/sample-contracts/

Other resources -The Horse Publisher’s Association’ Milton J Toby has an a good introductory primer, broken into small chunks, simple language, easy to read:

https://www.americanhorsepubs.org/wp-content/uploads/2019/06/Get-It-in-Writing-A-Template-for-Publishing-Contracts-Milt-Toby.pdf

Writers Union of Canada

TWUC_TradeContract_2021.pdf

The Authors Guild

Model Trade Book Contract – The Authors Guild

Morse Law Firm – A very Useful Checklist

Book Publishing Contracts – Checklist of Deal Terms – Morse

PublishingState.com – Not sure about the source, but it seems reasonably comprehensive of the basics.

Publishing Contracts: What Every Author Should Know

Bookish Elf – Some interesting perspectives here – Don’t necessarily agree with everything

A Beginner’s Guide to Publishing Contracts for Authors

PDF Filler – Interesting, not necessarily recommended.

author contract template Doc Template | pdfFiller

Where to look for Help?

Writers organizations often have some experience and resources available to help writers to navigate their way.  None of these will be equivalent to a lawyer or agent specialized in the field.  But most will have internal resources, including documents, templates, articles, checklists and other guides, often available online, or upon request, in writing or in video. They may also have internal contacts – either experienced writers who have been around the block, professionals or semi-professionals, etc.   They’re a useful resource, don’t be afraid to reach out.

WRITERS UNION OF CANADA

CANADIAN AUTHORS ASSOCIATION

PROVINCIAL WRITERS/AUTHORS GUILDS AND ASSOCIATIONS

HORROR WRITERS ASSOCIATION

SCIENCE FICTION WRITER ASSOCIATION (OF AMERICA)

SF CANADA

PERIODICAL WRITERS ASSOCIATION OF CANADA

OTHERS

Do you Need Agents or Lawyers if you Already Have an Offer for a Book?

The conventional wisdom is yes.  If you land a book contract, an Agent will generally be happy to represent you.  It’s generally free money, without the legwork of having to actually go out and sell the book.  But there’s a question:   Will the Agent actually get you a better deal than you would have gotten without the Agent?  Often first time authors are in poor negotiating positions, and many initial contracts may be on a standard ‘take it or leave it’ basis.  An Agent might not actually do much for you, in terms of improving your deal.  There may be two areas where an Agent might make a critical difference – (1) If your book is “HOT!” in which case the Agent will actually have negotiating leverage; (2) Selling your next book.  We can’t give advice – proceed carefully, think hard, don’t necessarily go with any agent – if you can be picky, try to be picky.  Sometimes a bad agent is worse than no agent,  in the same way that a bad contract is worse than no contract.

Be cautious about Lawyer’s, they’re expensive, and can eat up any revenue.  Make sure that anyone you consult with formally is specialized. Discuss prices and costs at the outset, including limits on expenditures. Be very clear on what you want them to do.