The question that plagues new writers most is, "How do I get an Agent?"

What a new writer should be asking  is "How do I know someone who says they are an Agent actually knows the business?"  

How does a new writer avoid being "taken" by either an agent or a publisher -- or both?  How does a new writer avoid ruining their career by being afraid of being "taken?" 

The only way to protect yourself in this situation is the same no matter if you're hiring a carpenter, accountant, house painter, plumber, electrician, or financial consultant.  You have to know enough about the job you want done to tell if the person you are hiring has real knowledge.  

That means you're going to have to study a bit.  You may not need to study contract law.  But you do need to study industry custom within the field you want to enter.  Customary contract terms and provisions are different for say, nonfiction, than for fiction.  And among various fiction fields, there are different customs.  

But the basics are the same throughout the field of publishing.  

The first thing to learn is that you are not "selling a book" (or story).  Unless you are dealing with a media-tie-in, you are licensing some small part of the rights to copy that work,  (the copy-right) for a specific length of time, to a specific business.  That business can then sub-license other businesses to produce versions of the work (abridgements, recordings etc).  

If you are dealing with a media-tie-in (such as a Star Trek novel) then you aren't "selling" that novel either -- because you don't own the underlying material.  You are doing a work made for hire -- and the copyright belongs to the Studio that owns the underlying property.  Your copyright is on a derivative work, and that copyright is then sold to the publisher.  That studio licenses a particular publishing company to make copies of the work. You will be signing a contract with the duly licensed publisher, and its language will be a little different here and there.  However, the basics are the same.  

The contract establishes 

a) that you own the rights you are licensing or selling.  

b) that if you don't own them, or if you've written something libelous, slanderous or otherwise actionable (such as divulging classified secrets of the government or plagiarizing), the publisher is not liable but you are, and 

c) precisely what you are licensing to the publisher, for how long, and how much you get paid.  

Beyond that a contract contains the standard provisions not specific to publishing -- provisions which cover instances such as what if the publisher goes out of business, what if they just don't publish, what if you don't deliver as promised, and how all these responsibilities devolve upon heirs and assigns (i.e. creditors).  A good housepainter's contract has the same kinds of clauses.  

You don't need to know much contract law per se because contracts are composed of "boiler plate" -- paragraphs that are pre-written and used in many other contracts.  These standard language paragraphs have been tested in court.  They don't mean what they say.  They mean what the courts have decided they mean.  You could only find that out by doing legal research for all cases pertaining to that clause in the state where the publisher does business (not your resident state).  

Mostly you don't need to know all the legal cases pertaining to a particular clause, and even a great Agent wouldn't know all that.  Today, most publishing contracts are written in pretty standard plain English, and the parts you need to know and understand are the parts that are left blank (i.e. how much money you get, and what you're licensing to get it -- so you can continue to market other rights in the work elsewhere.)  

When negotiating a contract, it is important to remember that it has nothing to do with you, or the person you are talking to.  It has to do with heirs and assigns -- yours and theirs.  Copyrights as of 1976 last 50 years beyond the life of the writer (75 years for copyrights owned by corporations).  In 1998 Congress extended that another 20 years.  

In Jan. 2003 the U. S. Supreme Court upheld the 20 year extension -- so now you are looking at a contract that could persist for 70 years after your death if you're not careful.  So licenses on those rights you own under your copyright should last considerably less.   And you should be careful of any decision you make to sell a copyright -- or any employment contract that gives your employer ownership of everything you write while employed (there are such employment contracts with large research companies.)  

So the most important clause in a contract is the reversion clause -- under what circumstances do all the rights being licensed to this publisher revert to the "writer" (i.e. heirs and assigns).  

There are two sides to any contract issue, two points of view that are reconciled by the contract.  The publisher's -- who is promising to invest a lot of money on the expectation of making all of it back and more.  And the writer's side - who has already invested a lot of blood-sweat-and-tears with the expectation of getting the words read and getting paid for it.  

Each side has a different agenda and different purposes.  The best contracts happen when each side intends to protect the rights of the other side.  

As a writer, you always want to consider ways to make a lot of money for the publisher -- and you get a percentage.  But the publisher has to show a wondrous profit, so you can sell them another book.  

As a publisher, you have to watch out for the rights of the author -- because if that author doesn't make a profit, you won't get another book from them -- or their friends!  

To see the writer's side of things you'll want to look up a Model Contract created by a writer's organization.  These model contracts are very seldom actually used by any publisher, and many of their provisions are not customarily acceptable by publishers currently working in the genre the writer's group represents.  Writers' groups publish "Model Contracts" to lobby for, push, shove, and lure publishers into practices better suited to writers' purposes.  

Such model contracts are readily available on the web - even to non-members of the group simply because they represent the best possible world for the writer.  

The best examples I know are at http://www.sfwa.org/contracts/

Science Fiction Writers of America (SFWA -- Science Fiction Writers of America ) has created a set of model contracts that do a nice job of protecting the rights of publishers without the author giving up what is so vitally important to the author (which is not just money, but that's a big part!)  

Remember, publishers are in business -- writers are Artists.  To "sell a book" (i.e. license some rights you own in what you created) you have to step into the business world.  That requires a different mindset from the one that lets you create.  

A very new writer, just negotiating their first contract, who loudly insists on including some provision espoused by a writer's group but rejected on the first two rounds of negotiation by the publisher, will very likely lose the deal.  

It is always worthwhile to ask for one of these sweetheart provisions, and even to offer to give up something in order to get such a provision -- but insistence on provisions that are not customary in a publisher's genre marks the new writer as a forever "wannabee" who just doesn't have what it takes to make it in the business world.  No work of art is so valuable to a publisher that he has to do business with someone who is just a lot of trouble.  There are plenty of other artists around who are willing to deal.  

It is easy to avoid getting yourself into this position, fighting with your new Agent, fighting with a publisher, getting yourself all up in self-righteous rage and assigning your property a value far beyond what any publisher would believe.   Find out what provisions are customary in your genre, and which ones the writers organizations would love to see become customary that actually are not customary right now.  

However, that's easier said than done.  Most writers and publishers guard their actual signed contracts with their lives.  Such things - contracts negotiated - are considered private, personal business.  It's like working at a corporation - you don't tell other people doing the same work  how much you're getting paid.  You don't tell people "above" you that you're making more than they are.  You don't tell them about special 401K deals you have negotiated in place of the parking spot they got.  

So we are presenting here some sample contracts that are actual publisher's contracts really signed by actual writers whose work then got published -- so you can compare them with the Model Contracts espoused by writers' organizations.  

Here's the final thing you must understand about publishing contracts.  They're all identical - but no two are alike.  And it isn't just the fill-ins that are different.  Clauses can be deleted.  Riders can be added.  Contracts become customized in the negotiating process.  

Here is what happens in the process of "selling" a novel to a publisher.    

You submit a query letter describing your book in two sentences -- or your Agent does.  The publisher asks to see a "partial" -- a few chapters and an outline.  The publisher likes it and asks to see the whole manuscript -- unless you're an established writer.  Possibly a year later, the publisher comes back and makes an offer on the book.

The offer would say only something like, "$1,000 advance against a straight 6% for first world paperback rights."  An established writer can get an offer like that on a couple chapters and an outline.  A strong seller could get that offer on a 1 paragraph description.  I've even gotten an offer like that on a two sentence verbal description on the telephone.  I know writers who've done it over lunch in Manhattan.    

When the verbal offer comes in from the publisher, the negotiation stage starts.  It is a truism in business that you don't get what you deserve, you get what you negotiate.  

Even if you have an Agent - you as the author will still be involved in the negotiations.  And it's in negotiation that your Agent earns that 15% off the top of everything you earn on this property. 

The agent's job is to make the deal happen - not to protect you, not to extort money from the publisher, but to make the publication happen in such a way that everyone stays in business.  It is in the negotiation stage that you find out if your Agent knows the business.  

If you could listen to a publisher and an agent verbally negotiating a deal, you would learn a lot.  It's somewhat like listening to a tobacco auctioneer settling deals on bushels.  Each clause in the contract can be referred to in shorthand, then an offer is made on the "fill in the blank" line in that clause, counter-offered, settled, and they move on.  

Somewhere down the list of rights to be licensed or reserved, they come to something they disagree on, and go back up the list and horse-trade -- give me this, I'll give you that plus something else -- until they come to an agreement.  Unless you know contracts because you've studied them, you won't know what just happened to your career.  

Once this opening salvo is over, your agent will bring you the deal.  If you accept it verbally, then by custom you have a "handshake" on the deal, and the deal is done.  Unless you do something stupid when you see the paper contract, your book will be published and you'll get paid.  

On the other hand, the paper contract might contain a deal-breaker that the initial negotiations didn't touch on.  You do have to read every word of everything you sign, and really understand what the words mean.  

Therefore we are presenting you not "a contract" - but the story of how a publisher's contract came into being and morphed into what you see today.  We're letting you watch a new publisher not negotiating a contract, but crafting the contract to be used as boiler plate for future offers to other authors.  

This is a publisher's contract for an on-paper publisher doing hardcover, trade paperback, and perhaps even mass market - or sub-licensing mass-market rights.  (Mass Market Paperback is the ordinary little hand-sized paperback books you're used to.  Trade Paperback is the hardcover-sized books that have a paper binding.  Print on demand usually produces something that looks like a Trade Paperback but falls apart a lot faster.  Some )  

If you can understand what the publisher is thinking and why -- then read the Model Contracts from some writer's organizations, and understand what writers as businessmen/women are thinking and why, you will be able to participate in the negotiation of your own first book contract and leave them thinking it is not your first but your tenth.  

You want to become a person who is a pleasure to deal with, not because you can be pushed around or cheated -- but because you can't be.  

To become such a person, you need to learn just enough about contracts to know what can be negotiated -- and what can not be.  You need to know how much you can get - how much is fair.  And you need to know how to structure a deal so that if your book becomes the next "Superman Comic" type property - your grandchildren will not be cheated of their royalties.  

On the left, you will see links to various sorts of "real" contracts.  Personalizing data has been omitted.  

Click books and you will find the story of how a publisher's contract evolved.  

Live Long and Prosper,

Jacqueline Lichtenberg 

This Page Was Last Updated   03/09/05 12:57 PM EST (USA)