Contracts are Not About Feelings

This is probably why you want an agent

Hi friends:

Long time friend of the newsletter, Laura, (looking for academic publishing advice? Sign up for her newsletter here!) asked a question last week and I decided to bring it out for all to see, not just subscribers on Q&A Thursday. She asked:

When you negotiate a contract for a client, what are you haggling over? Size of the advance is a big one I’m sure, but is there anything else in the contract that is negotiable in your experience? Does it vary by type of publisher, e.g. would there be less wiggle room at an indie versus one of the major houses?

This is one of the primary reasons you should have an agent, imho. Negotiating your publishing contract is one of the more difficult parts of your publishing career, after yanno, writing the book and then selling the book. Publishing contracts are not hard themselves, unless you’ve never seen one before. There’s no way I can answer this question in one newsletter, and there’s no way to answer it that will apply to all books (hence why you need an agent that works in your genre), but here’s a start.

When I get an offer from a publisher, it usually covers:

  • Advance and payout (i.e. how many checks is the advance split into)

  • Royalties

  • Territory (i.e. where can the publisher ship or sublicense the book, and in what languages)

  • Delivery Dates/Estimated publishing season

  • Deliverables (80k words? 75 black and white drawings? Whatever is relevant.)

  • Subrights (Who gets film rights? [YOU DO.] Calendar rights? Audio book rights?)

There are other things I’m interested in that are more relevant to some projects/authors than others. What’s the retail price going to be? Hard cover or paperback? What’s the option clause look like?

All those things go into the contract, so when we get the actual document, the big things are covered. When I get the actual document, it should reflect the changes we’ve already requested of the publisher, so we don’t have to fight over the small things every time. Of course, contracts get revised by the publisher more often than us agents would like, so of course we read every new contract that comes in. (If your agent doesn’t read your contract, get a new agent.)

(And I’ll say here, too, this is the only time I will tell you to be wary of new agents who aren’t working under experienced agents. New agents are AMAZING. They’re hungry and energetic and ready to roll. But they need to be working with an experienced agent if only for the benefit of the agency’s boilerplate contract and advice. If that new agent you’re querying hasn’t spent a couple of years at least working with an experienced agent, I would be wary.)

Different things are negotiable at different houses. If I went into detail on those things, you’d stop reading this newsletter, because contracts are inherently boring, unless it is your contract. There are some things publishers never change much, like the warranties and indemnities clauses (which basically covers what happens if you get sued because of your book, et al.). Those are the clauses that I usually discuss with lawyers when a client also employs a lawyer to look at the contract. I am not a lawyer. I have just been reading book contracts for almost 15 years. You can hire a lawyer to also look at your book contract. That’s totally ok. I have found that unless the lawyer is specifically knowledgable in specific book contracts, they end up asking for things that publishers will never change, and it might not be a great use of your money. BUT! Yes! Hire a lawyer if you also want one. Talk to you agent about it, too.

It has also been my experience that smaller publishers are less flexible with their contracts, or have less desirable contracts (in my opinion), than larger publishers. Indie contracts are not bad, per se, but we kinda say around the office the smaller the deal the more annoying the contract. Maybe that’s not fair, and it’s certainly not 100% true, but sometimes it feels like that. What does “less flexible” mean? Well, you may not be able to reserve foreign rights for yourself. You may not have favorable subrights splits. You may have an out of print clause that means you’d almost never get your rights back if the book stops selling. There are a thousand different ways a contract can be ok for your book and bad for another, so there’s no way to say NEVER AGREE TO THIS or ALWAYS ASK FOR THAT. Also, I am not a lawyer and this is not legal adviceTM.

When you don’t have an agent and you end up with a book contract, you can certainly go out and find an agent to help you! I call these deal-in-hand situations, and I’ve done them frequently. I take on that writer like any other client (and thus need to be interested in the client's career, not just this one deal), so I don’t automatically say yes just because you already have a book contract ready. But it’s totally a thing that happens.

What I really, really want you to remember, when faced with or thinking about contracts is YOU WILL NOT HURT ANYONE’S FEELINGS BY ASKING QUESTIONS, FOR MORE MONEY, OR FOR CHANGES. Seriously. Contracts are not about feelings. A book deal is not a gift. A contract is a business transaction and as long as you are professional and ethical, FEELINGS HAVE NOTHING TO DO WITH IT. Similarly, if you get a book deal and you want to get an agent to help YOU WILL NOT MAKE ANYONE MAD. You will not hurt an editor’s feelings or make then think you don’t trust them or anything like that. In fact, you’re likely helping that editor because now they don’t have to explain what the out of print clause says. And remember, that editor works for the publisher, not you. They’re not trying to scam you, but your editor is not your agent. Book contracts are not a time bomb ticking down. You will have time to read it, think about it, ask questions, even look for an agent or IP lawyer to help you. You do not have to respond in 24 hours. It will not evaporate.

When a publisher offers you a book contract, it means you have something they want. That means you have more power in that relationship than you realize. Don’t forget that.

This is just the tip of the iceberg about contracts and what to do when you get one. I have a feeling we’ll be talking more about them in the future, in the free and paid versions. Hit the button to subscribe.

Happy Tuesday, y’all.

XOXO,

Kate