Contracts for Writers – Notes from Balticon, 2017

I recently attended Balticon 51 over Memorial Day Weekend, where I’ve written up my “notes” on a number of sessions I plan to share over the comng weeks. I’ve decided to start the series off with “Contracts for Writers.” I served as moderator and the panelists included: Joshua Bilmes, the founding president of the JaBberwocky Literary Agency (representing Brandon Sanderson, Charlene Harris, Elizabeth Moon, Tanya Huff and other best-selling genre authors), Scott Andrews, the editor of Beneath Ceaseless Sky, Alex Shvartsman, short story author and anthology series editor of Unidentified Funny Objects, Bud Sparhawk, author (and CFO of SFWA).

So, you receive a contract for your short story or book. What’s next?

I suppose like me you are rather stunned, grin from ear to ear – then do you just sign it and send it back? Rule One – always read your contract. If you don’t understand everything, don’t be so quick to sign it. Better yet, like this panel (or this article about it) start learning about your rights.

Step one – what are you offering? Generally, First North American Serial Rights or First World Serial Rights, meaning you are offering the story exclusively (for a period of time) to said publisher. If you’ve published the story online, you cannot offer this right (that story is a “Reprint”). You get paid more for the first publication of a story than a reprint, which falls under a non-exclusive category of publication.

So, now you know what you’re selling. Alex Shwartman stated, “Only sell the rights that the publisher needs.” If they are a magazine, they don’t need your audio rights, for example. Joshua Bilmes mentioned a major magazine that asked for television and movie rights for a short story. Please note: agents generally don’t handle short fiction contracts. There is no significant money in it for them. However, his firm does offer to look over short story contracts of those they represent, where he learned one client had signed away a major right away. That’s something his firm had to negotiate back, which is not something someone normally would be able to get back, by the way.

I once received a short story contract for an anthology which had a clause that they would own my characters. Among thirty authors, twenty-seven of us refused to sign. The publisher apologized and sent us new contracts sans clause – even to the three writers who had signed their characters away for eternity (dare I say without reading the contract?).

Bud Sparrow added, “If you’ve ever been to the beach and written something in the sand and seen a wave come in and wipe it away, that’s a contract.” A contract is something that you can cross something out and change. Though, there are things that may be difficult to negotiate.
Scott Andrews explained that an agent contacted him about changes he wanted to their standard short story contract. He refused to make any changes to it. They weren’t warranted. That an agent even contracted him was unusual.

Joshua Bilmes stated, “Agents work for their authors.” If the author wishes to sign after understanding what a term of the agreement may mean, ultimately “we do what the author wants.” However, there are things than can be negotiated.

eBook Rights and Print on Demand conceivably mean a book may never be out of print. Reversion Rights are very important. I had a small press go out of business and had in our contract a clause for that – which included the fact that the cover art ported with me. I used the letter the publisher sent me, notifying me they were going out of business on a specific date and that the rights reverted to me after self-publishing the book after they closed. Amazon sent me a notification asking me to prove I had the rights to post the book. I forwarded them the letter, and the old version was removed. Without that clause, I could have had a book of my series unavailable for years or forever.

So what is the definition of a book being out of print, so reversion rights can be invoked? Generally, you want it to be based on less than $250 of sales in a given year, or if twelve books or less are sold in a given year, or during a two year period that is true that rights revert. Though, you could see statements about if the publisher has ten copies on hand, they keep the right. In these days of Print on Demand, that could be very easy for a publisher to do. Watch out. Negotiate this.

We briefly touched on “works for hire.” When an author’s invited to write a book in an existing Intellectual Property, in that case said author doesn’t own the characters. You are paid for writing the work and you may or may not have the copyright of that book under your name, the publisher makes that choice – and who owns the copyright does not matter, particularly. The IP is the owners, not that of the person hired. Works for hire, by the way, can get an author’s name out there in a big way, while providing an author a nice paycheck in the process.

Which brings us to advances, Joshua Bilmes stated you should never do a deal without an advance. He feels that $500 from even a small press shows that publisher is viable. I must admit, the publisher I mentioned previously, only offered a royalty split and went out of business after being in business on a few years, but that publisher paid me every royalty they ever owed me. I’ve spoken with other authors with new small presses who never received a dime (though, I didn’t ask them about the wording of their contracts, either).

Authors often do not earn out more than the advance they are paid. Fantasy authors receive higher advances than science fiction authors, for example, according to Joshua Bilmes. An advance these days may typically be $6,000 to $8,000. (SFWA’s standard recognizes $3,000 as an advance for a new author, allowing them to join the organization.)

I posed the question what’s the difference between “net” and “gross?” Joshua Bilmes answered that for all intents and purposes gross mean the cover price, a percentage of which the author receives, say 6%. Net includes the costs of shipping books, cost of goods, etc. which may bring the basis down to 45% and the author receives a percentage from the resulting net.

I brought this up because based on how net costs are defined an author may never see a royalty. For example when the cost of the publisher’s marketing the book include their travel to promote the book (not your travel as the author) that generally precludes authors from earnings a dime. (In that case, an advance would at least have brought in one paycheck.)

Finally, I shared that before signing a contract, check out the publisher on Writers Beware (SFWA’s website) and Scott Andrews suggested Preditors and Editors, as well. Any contract that has you as the writer paying for their services, buying books for more than your author discount of at least 40%, is likely a Vanity Press, whose purpose is not to publish and sell your book, it’s to bilk you as their customer.

The owners of Tate Publishing have been indicted by the State of Oklahoma for not only not paying Lightning Source for printing the books they published (as well as other vendors – and for siphoning said author payments into their personal bank accounts), but from over 450 complaints from their authors who paid for services like editing they never received.

I’ve shared this before, but did not bring it up at the panel. An old man wished to have his book published and paid thousands for its editing. He paid for the cover art, he paid for all the printing, bought hundreds of copies and mailed them to family and friends. What they received was the alphabet typed over and over, no periods, no paragraphs, no commas, no chapters, cover to cover. The Vanity Press did nothing, never said a word, and as I said was paid for editing. They produced just what the customer wanted, I guess. That’s not how publishing really works. Real publishers pay authors, not the other way around.

What all the panelists could not agree on more, “Read your contract.”

D.H. Aire,
Author of Crossroads of Sin and Other Stories