Contractual Obligations

I know it’s been a while, I like to cover new ground in the blog and, lately, it’s all been a bit same old/same old. I could try and write a piece on overcoming a break in productivity but it’s old news really. Instead, and in light of recent events in the entertainment industry, I wanted to discuss what to expect and to look out for in a contract. The pitfalls, traps and opportunities that can be present in among all the legalese.

So, I’ve been watching the blowup of WotC over their open license revision and it occured to me that, in the discussion of writing and publishing, contracts have only recently become an open topic. Hollywood has had to go through a righteous shift as actors have started openly discussing the rates studios have offered them and the clear disparity between the payouts offered to male/female artists and, while I’m not saying the same is true of authors and publishers (but I’m not saying it isn’t) it benefits a new author to be aware of what to expect.

For many of us this is the goal, the contract, getting someone else to take on the bulk of the work from typesetting, printing and layout to promotion and publicity etcetera (doesn’t always work out like that but, hey). In every case my first word of advice would be, ‘Read your contract.’ I’ve mentioned my particular aversion to official forms of all kinds, and it does extend to contracts (it’s something around all the official, formalised language, I think) but in this instance, reading and understanding your rights and obligations is a must.

The Advance – Let’s get past this already, getting a lump sum handout of $10k to $20k is not something many of us will experience. And let’s be clear, a publisher doesn’t pay royalties until after the advance has been recouped in sales. If you take into account that a reasonable contract with the big publishers will net you less than fifty cents per unit (each book sold) that means sales of more than twenty-thousand books. Douglas Adams Hitchhiker’s Guide might have moved 250k in the first three months back in 1979 but that’s not to say you or I will. It’s not easy to source sales figure of recent titles for comparisson, I tried looking up 2019 Hugo and Nova award winner The Calculating Stars by Mary Robinette Kowal, but alas, sales figures have become a marketable resource, ergo you have to subscribe through a service for access. A large publisher’s title might average ten-thousand sales, but that’s half what’s required to sell through the advance.

Still, most small or independent houses don’t actually offer an advance, but they do offer a better rate on Net sale royalties and, noteably, they should also allow the author to retain the rights to other formats. If you see the word ‘exclusive’ in the contract, don’t panic, read on, you ought to find that this only applies to print and audio. You should retain rights to stage, screen, even graphic representations and radio. Heck, even merchandise for those of us keen enough to persue it.

Contracts where authors can run afoul of ‘Exclusivity’ might present themselves via companies who run ongoing but ‘open’ intellectual properties. Many comic book printers also print books and produce audio-books. Rebellion (who own 2000AD) and have long printed text based stories within and without the pages of their graphics. E and Audio books are now available set within the world of Judge Dredd and their other titles. Any author intent on writing within those worlds has a chance but must be aware that Rebellion owns those properties and retains the rights to any story set within those settings. All well and good. However, if you were to submit an original piece to publishers like this, don’t then be surprised if the resulting contract hosts and iron-clad exclusivity clause upon the work, any subsequent works in the setting and permision to allow other authors to create works on the publishers behalf. In fact you don’t even have to wait for the contract, the information is freely available in their submisions guidelines. The fact is, Marvel, DC and Rebellion, all need writers to keep working within their established properties, but that doesn’t stop them looking around for new IP’s to incorporate into their brand.

The balance to this in the world of small-press is that you might find a clause requiring you to submit future works to a publisher who has accepted your submission. That’s not a ‘guarantee to print’ but it is a legal obligation for the period of the contract.

Reversion/Revision of Rights – the term of a contract and the term of copyright are not the same thing. A contract to publish before sole rights revert to the author is a negotiable term, perhaps fifteen years, maybe more. Copyright protection in the UK of literary works currently runs to 70 Years following the death of the author (you might want to consider who you’ll be bequeathing the rights for your works to). You should also have a section covering what to do if you decide you want to take the work back from the publisher and dissolve the agreement.

It’s worth remembering that contracts aren’t supposed to be vindictive, but that they have to present a clear course of action should there be a falling-out or disagreement between parties. The idea is to be fair but, in that case, some prior knowledge of how others are treated is needed. We’re not all expecting George Martin-esque figures and payouts but, being rewarded in line with out contemporaries shouldn’t be too much to ask.

When I worked a dayjob, discussion of wage rates was a discouraged, nay an actionable offence (at least, some agents of the business would have you believe it) but business feeds off that very kind of ignorance. If you don’t know what the person next to you is pulling down each month, how can you argue for fair terms? The same extends to creative industries, companies making profit from a product, it’s not that different. However, smaller firms (hopefully) will try to treat their contributors more fairly but this can only be assured if there is a discourse. Openess encouraging Fairness.

So, read your contract, do some research into your rights and maybe ask around about the terms offered to others in the field. Don’t be afraid to discuss the terms.


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