Business Musings: Contract Basics (Contracts/Dealbreakers)

Broadcasted at April 12, 2016 at 01:00AM:

As I mentioned last week, I decided to revise my Dealbreakers nonfiction book. As I started making notes for the revision, I realized the topic of deals, contracts, and publishing legalities has gotten so complex, I’ll probably get several books out of it.

Wrapping my arms around a topic this vast is intimidating enough. Often, I will focus on current events as my hook.

But I realized that I needed to do something right up front: I need to discuss the importance of contracts.

I know to some of you that sounds silly. Traditionally published writers expect to get a contract from their publisher. Hybrid writers expect the same thing, when they have a publisher other than themselves.

Indie writers often have no idea what contracts are or why they’re necessary.

In fact, all three groups rarely think about contracts at all.

Before we get to the meat of this topic, however, I need to do two things. I need to give you the standard disclaimer, and I need to let you know where I’m coming from.

Disclaimer: I am not a lawyer. Nothing in this blog or on this website should be take for legal advice. Period.

Where I’m coming from: If you haven’t done so, go to “Introductory Remarks” and look at the definition of terms. That will tell you the perspective of this blog post. If you try to comment about something that makes it clear you haven’t looked at those terms, I will delete your comment.

Okay. That’s done.

Over the years, I have become fascinated with writers’ attitudes towards contracts. Writers are so very cavalier about them. More than fifteen years ago, a former editor of mine (for a major traditional publishing house that has since vanished) told me that most writers she worked with looked at their 25-page traditional publishing contract like this:

The writer closely examined the lines covering the advance, and the advance’s payout schedule. The writer eyeballed the royalty rates, and the writer glanced at the deadlines.

That was it. Out of 25 pages, the writer looked at very little else.

I did not believe my editor. I really believed most writers were not that stupid.

I’m here to tell you now: she was right. Most writers are that stupid. Most writers pay no attention to their publishing contracts at all until some term bites them in the ass. Then the writer tries to figure out how to get out of it, not realizing that they got themselves into it by signing the contract without examining it.

Hybrid writers are learning the truth of that one. Many hybrid writers want to reprint their backlist. In the early days of epublishing, a lot of hybrid writers simply put their backlist titles up as ebooks, only to receive a cease-and-desist notice from the book’s traditional publisher. Writers stopped uploading without permission pretty quickly as the word got out that traditional publishers didn’t like that.

It helped that traditional publishers started epubbing their own backlists.

Indie writers have yet another problem with contracts. Indie writers believe they don’t need any. I’m sure many indie writers have already left this blog post, because they think it doesn’t apply to them.

Hey! Indie Writers! You’ll benefit more than any other group from this post!

There. Do you think I got their attention?

Writers in general—traditional, hybrid, and indie—do not respect their contracts. Writers don’t understand contracts, and rather than learning what a contract is and why it exists, writers let “their people” handle the contracts.

For generations now, “their people” are usually their agent and the employees of their agent, which, as you will see in future posts, is a truly terrible idea. If you want “people” to handle your contracts for you, hire people for whom contracts are a specialty. Namely, a literary lawyer.

But let’s talk about contracts themselves, shall we? Most writers expect someone else to generate a contract. Most writers want their traditional publisher or their agent or their service provider or their mortgage broker or whomever they’re in business with to provide them with a contract. Most writers have no clue that they can generate their own contracts.

Yes, you, traditional writers! You can go to your publisher with your own contract in hand. I personally know several writers who do this. That puts the contract negotiation phase on equal footing. The writer has their 10-page contract; the publisher has their 25-page contract.

The document the two end up with is neither of those contracts. It’s something unique to that particular negotiation, and probably won’t be replicated in the writer’s next negotiation with a different publisher.

There, traditional writers, did I just blow your minds? Because it certainly blew mine when I started editing over 25 years ago and some writers provided me with their standard contracts for short fiction. I didn’t know that was possible, because, at the time, I did not understand contracts or contract law.

Indie writers, I know many of you are wondering why you need a contract at all. Technically, in many states in the U.S., you don’t. But in some states, you do.

There are other, more practical reasons to have a contract, and I will get to those after I define what a contract is.

A contract is a legally binding agreement between two or more parties.

As with anything in the law, however, that simple statement above isn’t the whole story. In order for a contract to be valid, it must have all of the following elements.

1. Offer
2. Acceptance
3. Valid (legal and valuable) consideration
4. The parties must intend to enter an agreement with each other
5. The parties must have the legal capacity to act in this matter
6. The parties must give genuine consent to the terms
7. The agreement must be legal

 

I’m going to start with the simplest things to explain, and then I’ll get to the harder ones.

With that in mind, let’s start with #7:

The agreement must be legal

You and I can enter an agreement to commit a crime. However, that agreement, even if it fulfills points 1-6 above, is not valid. There are a million ways to enter into an “illegally formed” contract, and most of them do not apply to publishing, so I am going to skip them. If you want to see a list of possible items that make an agreement illegal, go here:

#7 generally does not apply to publishing contracts, but the rest of the list does. So let’s move to #5

The parties must have the legal capacity to act in this matter.

Legal capacity has a lot of definitions, and we’re not going to get into most of them. Generally speaking, the person who enters into a contractual agreement must be an adult, in full command of their mental faculties, and able to understand what they’re signing.

If one of the parties is a corporation, then the person who enters the agreement for the corporation has to have the power within the corporation to make binding legal agreements.

This one little fact is why agents cannot sign a contract for their writers, unless the writers give the agents power to do so under the law, with another agreement called Power of Attorney. Even then, the ability to sign such documents would have to be spelled out in the Power of Attorney agreement.

All parties to a contract need to have the legal ability to represent whatever is in that contract. For example, I cannot sign a valid contract selling your novel to a major publisher. I do not control the rights to your novel. I also cannot scan and upload your book to, say, Amazon. When you upload a book to Kindle, you warrant—by agreeing to the terms of service (a contract)— that the book is yours or that you control the copyright to that book. Since I do not control your copyright, I would not have the legal capacity to enter into an agreement for that book.

Speaking of terms of service (which is a contract, by the way), let’s go to #6:

The parties must give genuine consent to the terms

Have you ever read through a terms of service (TOS) agreement? No? And yet you’ve clicked accept? You have to go through pages and pages of text, plus an offer to have the TOS sent to you via email (or regular mail), before you can click accept. Back in the old days (like ten years ago), it was easier to hit accept on a TOS. The very ease back then made it possible for attorneys to argue that there was no “genuine consent.” (This kind of thing fell under consumer protection laws, usually.)

That’s why TOS have become impossible to ignore. You have to willfully not read them, and go through a bunch of notices before you click accept. Then it’s your own damn fault if you agreed to something you didn’t read.

Genuine consent in most written contracts comes in the form of a signature with a date attached. Sometimes that signature needs to be witnessed and sometimes it needs to be notarized to show its validity.

But on some contracts—particularly verbal contracts—all it takes is a handshake to give genuine consent. Each state’s laws differ on this point. Some states do not honor verbal agreements. Others do. If one of the parties in your contract is from one of those states, then you could be agreeing to something you think you’ve mentioned casually over the phone.

This one fact alone is why I do not conduct telephone negotiations with anyone on any project for any reason.

People who want to negotiate with me must do so by letter or, these days, by email. I print those emails and keep them as work product for any agreement that we come up with, or don’t come up with, as the case may be.

Now we’re getting to the parts of a contract where I’m feeling constrained by the simplicity of this blog. For every sentence I write, I have paragraphs of “but if this happens, then that could happen” that I could add to this document. I’m not going to.

If you don’t understand what I’m writing here, there are many, many, many websites that can help you understand the essentials of contracts, probably better than I ever could. Google contract basics.

But…moving on…and advancing into serious wiggle territory, I present #4:

The parties must intend to enter an agreement with each other

Intent in this instance is really difficult to explain. When you upload a book to ebook site, you are intentionally entering into an agreement with that site. The TOS defines the legal relationship you have. Most writers don’t think about that intention, but it exists.

It also exists for you readers. When you pay money for an ebook, you’re licensing the ebook to use on your ereader. You are renting that book. You have entered an agreement with Amazon or Barnes & Noble to rent that book, and those entities may revoke your right to rent that book for reasons listed on their websites. You signaled your intent to rent that book by your actions, not necessarily by clicking agree to a TOS or by signing a document.

This is a very complicated part of the law, and of course, it varies state to state, and sometimes from community to community. If you want to know more, then do some digging on your own.

For our purposes, however, you will be dealing with a written document. You would not be negotiating a document to work with someone if you did not intend to work with them. Therefore, this seems like a small point.

Trust me, it isn’t. And it has become more confusing for indies than it has for traditionally published writers, because of things like Terms of Service.

Now that I’ve muddied the waters with the complex legal wiggle-waggles, let’s go to the most basic part of contracts.

Every single contract needs #1: An Offer. That offer must be #2: Accepted. Tied to that offer is #3: Consideration.

I know most of you don’t know what consideration is, so let’s explain it first.

Consideration

What makes a contract special is that it is binding on both parties. In return for making the agreement, each party needs to get something. That something has to have value to both parties.

Nolo.com’s article on contract basics gives a very succinct definition of consideration:

Each party has to promise or provide something of value to the other.

In many, many cases, consideration has a monetary value. But not in all cases. Essentially, consideration boils down to the very reason each party enters the contract.

Writer A wants to have a novel published.

Publisher X wants to publish that novel.

Writer A and Publisher X decide to exchange services. Writer A writes the book; Publisher X publishes the book. Even with no cash changing hands, both parties have received consideration—in the form of work, time, expenditure, and so on. Both parties have gotten something they value out of the agreement.

Nolo.com has a great article on consideration. I suggest you read it.

We end with the meat of a contract.

A contract does not exist without #1 and #2.

Offer and Acceptance

I listed them separately. Many descriptions of contracts list them together. Because a contract does not exist without both.

I can make you an offer for your book. If you do not accept my offer, we do not have a contract.

It’s that simple.

However, once the offer is accepted, we have a valid contract. Some people mistakenly believe the contract is not valid unless money changes hands. Not true.

The contract becomes valid and binding once the agreement is made.

Let me give you a real world example that, fortunately for the other party involved, I did not go to court over.

A representative of a brand new science fiction convention contacted me via email, and offered to pay all my expenses in exchange for my appearance at that particular science fiction convention.

I agreed also via email, and printed out the letter, along with my reply.

These email letters, along with email acceptances, are a common way to do business with a science fiction convention. Those email letters are a contract.

Offer made. Offer accepted. Consideration would happen at the convention itself—for both parties.

A short time later, I received a form email telling me that the organizers had overbooked the convention and they were no longer going to pay any of my expenses, even though they still wanted me to appear at the convention.

I had several choices. They had breached a contract. Our email exchange would serve as the binding contract.

I could have shown up at the convention and insisted on enforcement. I had many other options as well, and believe me, I thought about them. This was extremely unprofessional behavior on the part of the organizers, and it called into question habits of a lifetime for those of us who’ve appeared at conventions.

I was not the only science fiction professional who received the form email. Several other science fiction professionals did as well. We discussed taking action. Instead, the only action we took was to inform the other professionals who had not received the form about the breach of contract. If those professionals had shown up at the convention, they might not have had their expenses paid.

The professionals needed to know that before they made travel plans.

Nothing happened, because the convention imploded shortly thereafter and will not be held. So there will be no appearances and no all-expenses-paid guests. Which is probably good for the organizers, since they had several existing contracts that they were no longer planning to honor.

Most of us think of contracts as those 25-page documents I mentioned above. But we deal with contracts each and every day. Some are implied contracts, and others are actual paper documents. That email exchange was a contract.

I do not have a written document with the woman who cleans my house. She shows up once a week at a designated time, and I pay her every single week. We made that agreement verbally. We have a contract for cleaning, and it is binding.

Contracts are extremely important. They define the relationship between the parties. Written contracts are the best, because each party can examine the terms, think them over, and decide whether or not those terms are acceptable.

You and I might discuss a proposed business plan over the phone. I might think we decided to have you do all the publishing work, from designing the covers of a book to writing cover copy, and you might think we decided that you would write the book and I would publish it. A simple misunderstanding that could happen in conversation would be solved if we had a written agreement.

With a written document, you can examine the terms and see if they’re feasible. But you must examine those terms before you accept the offer. Once you’ve accepted, the contract becomes binding.

It’s easier to take legal action over a broken contract if that contract is in writing. Taking legal action does not mean you have to go to court. You can have an attorney contact the other party, and let them know they are in breach of the contract. That’s very easy to do when the terms are spelled out.

I can’t tell you how many times I’ve taken part of a publishing contract and used that section to show the publisher that they were in breach of the contract.

Once someone is in breach, by the way, they usually have the right to cure. Meaning, if they do something wrong, they have the right to fix that problem within a reasonable amount of time.

I keep catching one of my traditional publishers in a breach, and the bastards keep curing. I want them to breach the contract completely so that I can get my book back. They haven’t done it yet. (Sigh.)

Three last points about contracts.

First, both parties have a stake in the contract. You don’t have to sign something as is. And, in fact, you shouldn’t. You should negotiate. Most writers never do that. I know, I know. You don’t know how to negotiate. I have a book on that called How To Negotiate Anything. If you don’t want to get the book, look at my blog posts on the topic, starting with this post.

Second, here’s an important thing to remember about contracts, which I came across on BusinessDictionary.com:

However, while all parties may expect a fair benefit from the contract (otherwise courts may set it aside as inequitable) it does not follow that each party will benefit to an equal extent.

Traditional publishing has made this one little fact the gold standard of their contracts. Yep, writer and publisher benefit from a traditional publishing contract. Who benefits more these days? The publisher. And I aim to stop that with this series of blogs.

I can’t stop publishers from asking for more than they deserve. I can, however, dream that I can stop you from giving them more than they deserve.

That’s where the Dealbreakers part of this will come in, down the road.

Finally (third), indie writers, you need to define your relationships—all of your relationships, from your relationship with your cover designer to your copy editor—with contracts. You’ll probably have to generate those contracts yourself. I’m looking for a good resource book or website right now for that, and if I find it, I will list it here.

But for the time being, write up an agreement in plain English, listing an offer, the acceptance, and the consideration. You can always change the agreement (with the approval of both parties) down the road. But cover your asses.

Because, really, covering your ass is what a contract is all about.

I’m doing a long series again. This one is on contracts and dealmaking/breaking. It will include clauses to watch out for, information on agents, how to hire an attorney, and more.

I will be digging into bad contracts and typical terms of other contracts. If you have something that you believe will help, see the introduction blog for more information on how to get it to me.

As I mentioned in that blog, this topic discourages the hell out of me, because I see so many writers sign away their life’s work. I’d like to stop that, and the only way I know how to stop it is to blog about it. But honestly, it puts me in a dark place.

So if you get a benefit from this blog or this series, please consider supporting it. You can support it with a cash donation or by forwarding it to writers.

Thanks so much.

Click http://ift.tt/1iyzcEy to go to PayPal.

“Business Musings: The Importance of Contracts,” copyright © 2016 by Kristine Kathryn Rusch. Image at the top of the blog copyright © 2016 by Canstock Photo/tombaky.

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Business Musings: Introductory Remarks (Dealbreakers/Contracts)

Broadcasted at April 12, 2016 at 12:55AM:
For the writers out there thinking about traditional publishing.

In 2012 and 2013, I published a series of blogs on contract deal breakers for traditionally published writers. I’ve been promising to update it for years now, but I’ll be honest: The very topic discourages me.

Still, I have come to the point where I can’t ignore the contractual changes in the industry any longer. The topic has become so large that I will probably end up with two books out of it: The revised Dealbreakers, and a book on contracts.

This post will serve as a kind of introductory blueprint to what I’m going to do. Regular readers of this blog will have seen some of this information before, but the rest of you probably haven’t.

When I start discussing contracts, most indie writers tune out. But they shouldn’t. Indie writers sign contracts all the time. Some are for foreign editions. Some are for short fiction. Some are with their cover designer. Some disguise themselves as terms of service.

Not everything I write here will apply to the indie writer, but much of it will.

Remember: the more you understand about this business, the better off you will be. And the harder it will be to take you off-guard.

Before I get much deeper into this blog, let me make one point very clear: I am not a lawyer. Nothing in my columns on contracts and the law and deals should be construed as legal advice. I do my best to research everything, but I can be (and sometimes am) wrong.

Now, let me define terms.

1. When I say “indie writer” I mean writers who either have their own small publishing imprint or are self-published. I’m not calling all writers who do it themselves self-published writers, because so many of them hire out a lot of the work, from copy editing to layout. At some point, these writers have moved from complete DIY to a small business with contractors or employees.

If the writer is serious, eventually, they will become a tiny independent press, just because of the workload.

1. When I discuss writers who want a “long-term career,” I don’t mean people who write an occasional book and finance their lifestyle through another career. While that’s a valid career path for writers, it is not the one being discussed here.

By “long-term career,” I mean someone who wants to make a good living as a writer—with earnings per year of $50,000 or more.

1. When I mention “traditional publishing,” I mean the publishing industry that most people are familiar with. Some writers call this the Big 5, but I’m including some smaller houses as well. These are not ground-up businesses, but top-down businesses, with massive overhead, huge staff, and an infrastructure that has been in place for at least a dozen years or (in some cases) nearly a century.
2. You should also know that I no longer sell my novels into traditional publishing in the United States. The contracts are too awful, which we will get into here. I do sell them overseas, where the contracts are better, although crappy contract creep is happening there as well (especially in firms that are part of those conglomerates). I do sell the occasional anthology into traditional publishing, and a lot of short fiction. I still have many novels in print through traditional publishers. This makes me a hybrid writer, with feet planted in both camps.
3. I have not had an agent representing my work for years now. The reasons will become clear throughout this series.

With those definitions and caveats in mind, here we go with the body of the introductory material.

 

I mentioned above that the topic of contracts discourages me. That’s one reason I’ve put the revision of deal breakers off for so very long.

I had hoped that contracts would improve. They haven’t. They’ve gotten worse. What has happened is that predictions long-time writers, like my husband Dean Wesley Smith, made have come true: Writers are starting to split into camps. Dean predicted two camps—those who published their books traditionally, and those who published indie.

Unfortunately, we’ve divided into three camps: those who publish traditionally, those who publish indie, and those who publish through their agents.

That last clause “through their agents” is so wrong, I have trouble typing it. The agents who still represent the writer as an agent are breaking the law when they publish a writer’s books. The agents are then becoming publishers, which makes them violate all kinds of agency law. Not literary agency law, which, anyone will tell you, does not exist in most states. Agency law, which governs anyone who calls themselves an agent—from real estate agents to insurance agents to literary agents.

Agency law varies from state to state. I can’t tell you what Colorado asks of its agents any more than I can tell you exactly what Oregon asks of its. Because, again, I am not a lawyer, although as you can tell from some of my posts, the law fascinates me.

Most literary agents have no idea agency law even exists—at least, I hope they have no idea, because if they do, then they are flagrantly violating the law, instead of ignorantly violating the law. Me, I prefer the ignorant to the flagrant.

But law-breakin’ is law-breakin’ as they used to say on Western TV shows—and ignorance of the law is no excuse.

Above, I mentioned Westerns for a reason. Publishing has become the Wild Wild West. It was always a lawless place, governed by strange rules and ignorance. But much of it was genteel, and prided itself on doing what was right.

Since huge conglomerates have taken over the big traditional publishers, no one even pretends at gentility any more. Smaller publishers which were often a dice-roll (some were great for writers; some were horrible for writers) are now as bad, or worse, than the Big Five. Much of this is economic—the economics of traditional publishing, done the old-fashioned way, isn’t working as well as it once did, so traditional publishers (large and small alike) are squeezing their writers like never before.

Most writers who publish traditionally can no longer make a living at writing. If those writers only write one novel per year, they definitely can no longer make a living at writing.

Most midlist writers are lucky to get an advance of $5000. Those advances are paid in three installments—signing, acceptance, and publication. Even being charitable and assuming that the advance is paid in the traditional two installments ($2500 each) or let’s be even more charitable, all at once, a writer can’t live on that kind of money.

The writer has to be able to write something else.

But most traditional publishing contracts —negotiated by agents —have some version of this clause:

The Work [the novel] shall be the Author’s next book-length work. The Author represents that there is no outstanding commitment for publication for the first time of another book-length work written or co-written by the Author to a third party and the Author will not offer rights to another book-length work written or co-written by the Author, or accept an offer for such a work, until acceptance of the Work by the Publishers and until the Author has complied with the option in Clause 3(a)

 

The option clause in most contracts is another problem, which options the author’s next work, and allows the publisher to take their own sweet time in deciding if they’ll buy the next work.

But note how pernicious this clause is. I took it from an existing contract that a writer sent me over a year ago. The only thing I changed was adding [the novel] for the sake of clarity. The rest is from the contract verbatim.

The contract is for a novel, yet this clause restricts book-length works. That includes nonfiction, short story collections, novellas, anything at book-length, which is not defined at all in the contract. So that means book-length could be anything the publishing company deems it to be.

It could also be argued that when a writer self-publishes a book-length work, the rights to that work are being offered for distribution. I wouldn’t put it past some big book company to argue that the self-publication is in violation of this clause.

Usually, though, there is another clause, buried in the warranty, that says the author warrants he will not publish any other book-length work that will compete with this book. And who determines that competition? The publisher, of course. Certainly not the author.

So…for a measly $5000 (minus agent fees, which actually will make this $4250), the author signed away his right to make a living. In the early 1990s, I sold eight novels before my first one was published. I also sold an anthology that I edited, and I was editing a series of hardcover anthologies that we chose to call magazines.

If my first novel contract had had that clause, I could not have done any of those things. So, instead of earning tens of thousands of dollars in those early years, I would have been left with a check for $2125—and some crappy day job.

But what about the dream? The home run? What about earning millions on your writing?

What about royalties?

First, most traditional books do not earn out their advances, so the writer never gets royalties. This isn’t because the books do poorly. It’s because of all of the contract terms, new definitions, and other ways that publishers are managing to keep most of the profit from any published book.

And that home run? That million dollar advance?

They are rare. They haven’t gone away completely, but they’re certainly down.

Part of the reason is because traditional publishers—the ones who can spend millions on a project—have devoured each other. When I came into the business, there were at least two dozen publishers who could offer large advances.

Now there are five.

Five.

The dream of having a dozen publishers want your book so badly that they’ll bid against each other to get it is just that—a dream. A pipedream.

Don’t believe me? Then go to Publishers Marketplace. For years now, Publishers Marketplace has tracked publishing deals on its website. Agents, in particular, love to report their really big coups to Publishers Marketplace. Publishers Marketplace divides the deals it reports into five categories, all by the amount of the advance.

PM defines “major deal” category—the largest advance category—as $500,000 and up. In the not-so-distant past, the major deal category was often for one book. If the agent secured a three-book deal that was $500,000 per book, the agent didn’t call that a major deal, because that wasn’t impressive. Someone might misinterpret and believe the agent got “only” $500,000 for all three books.

Instead, the agents would report a 3-book deal for $500,000 per book as a 1.5 million dollar deal.

I searched major deals this afternoon, and found quite a few. But when I looked at them, they were all for mid-six figures for a lot of books—usually a three-book deal, although I did see quite a few for five books, and one “major deal” for 11 books.

Believe me, if that 11-book deal had gone to seven figures, the agent on the deal would have said “In a deal worth one million dollars…” Didn’t happen.

In the past year, searching for fiction only, I found three deals listed as million-dollar deals. They include John Scalzi’s 10-year, 13-book, $3.4 million dollar deal (which comes to roughly $225,000 per book when you subtract agent fees). Only one of the three deals was for a single book, which sold for 1.25 million. The remaining deal was for over a million per book, and that was a $7 million 5-book deal (which comes to $1.4 million per book before agent) for a self-published writer whose books sold 1.2 million all on their own.

Three million-dollar fiction deals in 2015. Only three. And none yet in 2016. There were nine in 2014, and at least one per month in 2013. In 2012, there were at least two per month.

Why is this important? Because that home-run is less possible for everyone in traditional publishing, and they’re looking for other ways to make money. One of the ways they make money is squeezing writers. Another way is to own the copyright—or at least, control the copyright. (Get yourself a copy of Nolo Press’s The Copyright Handbook by Stephen Fishman. It’s essential these days.)

And here’s the really scary part: Old contract terms, some written in the 20^th century before ebooks existed, are being redefined and employed as a justification for publisher behavior. These traditional publishers—particularly those that have been subsumed into a major conglomerate—are not asking permission to change the definition of the terms. They’re just doing it.

Things that were pretty innocuous in 1985 are now weapons that are being used against authors.

You’d think that agents, who are supposed to work for the writers who hire them, would prevent this whole-sale change of meaning of old contracts. But a handful of agents are complicit in this, preferring to maintain their working relationship with a big publisher than rocking the boat for a small client.

Even more agents are just plain ignorant of what the changes in the clauses mean.

Those who run the agencies, though, do understand that their income is going down, so literary agencies have become pretty draconian in their own contracts. Those agencies make agreements with their authors, usually requiring the author to give them 15% of the earnings of a particular book if the agent sold the book. That’s bad enough, especially if the agent has been fired—as two of mine have (the two who still are entitled to 15% of certain projects).

But the agency agreements are moving into a whole new, and even uglier, place in relation to their writers. Agents are demanding a piece of their writers’ copyrights as well. Some agents are blatant about it, stating in the agency agreement that they make writers sign before the writer becomes a client, that the agent will own 15% of the copyright of any book the agent sells for the writer—or in the case of one agency, 15% of the copyright of any book the agent markets for the writer.

Other agency agreements are less blatant. You have to read them in conjunction with the contracts the agent has negotiated for the writer, to see that the agent has actually slipped his hand into the writer’s pocket and legally stolen copyright. Most writers trust their agents blindly, and never believe it would happen to them—until it happens to them.

These days, most agents have discovered that the best way to control the copyright on a piece of literary property is to publish the ebook. Some agents just publish ebooks through a side arm of their company. A lot of writers object to the quality of those ebooks, but that’s the smallest part of the problem.

Under agency law, an agent acts as a go-between for two parties, representing one of those parties in a negotiation or business deal. The agent cannot, by law, be one of those parties. So unless a second agent with a different agency negotiates the ebook contract, the agent who provides ebook services is violating agency law.

Some agents put up a wall between their publishing arm and their agenting arm. Some of these walls are more effective than others. For example, at least one agency has an exclusive arrangement with a big-name ebook company. Many clients are unaware of this exclusive arrangement and think their agent is “negotiating” a deal for them, when really, the agent just funnels the ebook into the big-name ebook company, and takes the boilerplate contract that the agency and the ebook company previously negotiated.

Again, there is no third party here, because the ebook company and the agent have a pre-existing partnership.

So if you think you’re indie published, but your agent does all the work, you are not indie-published. I don’t know what exactly you are, but you don’t have control over your rights or your publishing decisions the way a true indie published author is.

In my opinion, being “indie” published through an agent is the worst of all possible worlds. Choose. For your novels, either go 100% traditional and deal with the headaches and the fallout or go 100% self- or indie-published. Agents in the mix cause too many issues, which I will also deal with in upcoming blog posts.

What about indie writers? I mentioned above that they have to deal with contracts as well. Startlingly for many indie writers, they find that they have to generate contracts. You want to work with a good local copy editor? You’ll need some kind of agreement to govern your relationship. You want to co-author a book with your best writer pal? Who writes the collaboration agreement? Who handles the money?

And what about all those 99-cent boxed sets with 9 or 10 authors? I’ve seen some pretty shitty boxed set contracts that essentially say this:

Suzy, Janice, Alice, Marcy, Mike, Scott, Dan, Jessie, and Madison will put their books in a boxed set that will sell on Amazon for 99 cents. They agree to put 50% of their earnings into advertising and split the remaining 50% among themselves. Suzy will handle the money, and Janice will handle the publishing. Signed and dated, the group.

Oh. My. God. I have not heard about the fights and levels of problems that have arisen because of these “simple” contracts, but I can bet that some friendships vanished, along with a lot of money.

And those are just the indie problems I can think of off the top of my head. I know there are more.

I know, I know. I’ve just cracked open that huge can of worms. Wait. Let’s call it for what it really is, shall we? It’s a Dumpster full of worms. Hell, it’s probably a garbage pit full of worms. And I’m going to dig through it over the next several months—with an occasional column off to explore something else.

I will need a few things from you folks. First, those of you who have contracts and are willing to share them, contact me through this website. I will never mention you by name and I will not discuss your contract. Some of its clauses will be discussed, especially in relation to other, similar contracts, but never with a name, date, publisher or book title attached.

If you have a good contract, I’d love to see that.

If you have a horseshit contract, I’d love to see that.

If you have an old contract that you can’t seem to extricate yourself from, I’d love to see that too.

Please clear off the personal information (social security or personal id number, address, name, book name). I’d like to know the advance—in general, not in specific. Something like—this contract is for my book and my advance was less than $5,000 or my advance was less than $10,000 or my advance was in the mid-five figures or low six figures or however you want to say it. Do leave in the payout schedule, please, but only as percentages (half on signing, half on acceptance; half on signing, one-third of the remaining payment on acceptance, hardcover publication, and paperback publication).

If you have a contract from one of the big five publishers for a short story collection—and this contract is recent—I would love to see it. (Again, the stuff above applies.) Same with a contract for a major anthology.

If you’re published overseas, I’d like to see foreign contracts in both English and Spanish (the languages I can read).

If you have a contract with an agency, I’d like to see that.

If you have a contract with an agency for your ebooks, I’d like to see that.

And if you have a contract for one of your older titles with some of the newer ebook-only companies (the ones that produce your ebook for you), I’d like to see that as well.

I won’t be able to help you personally with your contract. Remember, I am not a lawyer. But the information you provide will prevent writers from getting into the same circumstances. If you have a good contract, you will be able to share great clauses with writers who need to know that such good things are possible.

I promise that I will make sure I cover things that indie, hybrid, and traditional writers are interested in, and I also promise that I’ll be keeping up on any big news that needs discussing—if you all promise to help me keep my mood up.

Because I will be digging through mud for you. And I will be getting pissed off. So-called legal scams make me mad.

I hope that, in the end, this series of blog posts (and eventually, the books) will give a lot of you the ability to slog through the muck as well.

I will need funding on this one, though. So please, if a particular post touches you, teaches you something, or helps you avoid a pitfall of your own, please leave a tip on the way out.

Thanks!

 

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“Business Musings: Introductory Remarks,” copyright © 2016 by Kristine Kathryn Rusch. Image at the top of the blog copyright © 2016 by Canstock Photo/cteconsulting.

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Moral Absolutes are Essential to Good Storytelling

Broadcasted at December 6, 2015 at 08:37PM:

Western civilization’s drift from a predominantly Judeo-Christian worldview to postmodern relativism has had a significant effect on our storytelling. Any appeal to Good and Evil, Right and Wrong — a universe where absolutes exist — is intrinsically tethered to a Judeo Christian worldview. And without that worldview and a context of Moral Absolutes, stories lack logical and/or emotional bite.

I was reminded of that yesterday while reading Andrew Klavan’s review of the latest James Bond entry “Spectre.” Klavan writes,

The Bond of Dr. No, like the Ethan Hunt of the original MI TV series, like the Luke Skywalker of the first Star Wars trilogy, knew what he was fighting for and what he was fighting against. The story — all those stories — took place with the presence of the Soviet Union and Red China in every viewer’s mind. We knew they were slave states who wished to impose their brand of slavery — called communism then, progressivism now — on the entire world. We knew we needed brave men and strong ideas to defeat them.

Where oh where could we find such villains today? Who holds to a slave philosophy now? Who wants to impose that philosophy on the rest of us? Why are they evil? Why should we oppose them?

The answers are 1. In the Middle East; 2. Islamists; 3. Also Islamists; 4. Because individual liberty is an objective good; and 5. Because if good men don’t fight evil, evil wins.

The people who make these movies live in a haze of such intellectual dishonesty that they have forgotten, or chosen to ignore, these answers. They aren’t honest so they can’t write honest plots. Their villains have no motives and their master plans are confusing where they’re not just laughable. Their heroes are merely an assemblage of characteristics from an earlier age: empty images that move and talk a certain way but have no virtue and so no power to thrill. They are, so to speak, merely spectres of their former selves.

Without intellectual honesty, you can’t find moral truth. Without moral truth, there are no good stories. (bold, mine)

The further one drifts towards relativism, the less real Evil there is. To the postmodern relativist, jihadists have legitimate gripes, “individual liberty is [NOT] an objective good,” and Darth Maul needs “understood” rather than impaled on a light saber. Likewise, “without moral truth,” authors are forced to merely contrive survival scenarios and “values clarification” exercises. Our “bad guys” are simply confused and our good guys aren’t much better. To the postmodern filmmaker, there is no altruistic Moral high ground, just a vast wasteland of eye candy.

Of course, some will object that Relativistic fiction can be compelling. “You don’t need Moral Absolutes for a story to be interesting. A belief in Good and Evil can exist apart from Judeo-Christianity.” 

Sure, relativistic fiction can be compelling… but only if you don’t think it through. So your protag survives. Big deal. If the Moral framework of her universe is negotiable, what does her survival matter? Other than to her. The survival of the zombies or thieves or flesh eating bacteria might be just as morally sustainable. And if that Moral framework is relative, then her survival really doesn’t matter. I mean, why is it “better” that she and her child survive? On what grounds? And in the end, if there are no Moral Absolutes, your protag and all her great deeds will simply fade into the dust of history like so many other valiant, yet futile, warriors.

Others will object that a belief in Good and Evil can exist apart from Judeo-Christianity. To which I’d ask, in which worldview? Not the relativistic worldview, for Good and Evil are subjectively defined. They are not “real” except to the individual or society who believes them to be. In a relativistic universe, why should the Third Reich be defeated? Because they’re killing innocent people? According to them they’re eliminating an inferior race. Because they threaten human existence? According to them, they are advancing the species. See? You can’t fight evil unless you actually believe in Evil.

Which implies the existence of Good. An objective, Absolute Moral Good.

Two of the major world religions — Judeo-Christianity and Islam — see morals as rooted in God (even though their conceptions of God greatly differ). In Hinduism, the third great world religion, God is in everything, both good and evil. As a result, there is no absolute morality. Through the law of karma, the soul (Atman) simply migrates back to God (Brahman).

So I ask again, which other worldview appeals to Moral Absolutes? An

• atheistic worldview?
• humanistic worldview?
• pantheistic worldview?
• polytheistic worldview?

In theory, none of them appeal to Moral Absolutes. In practice, all of them do. While someone may claim they believe that truth is relative, they rarely act like it. Which is why Moral relativists are still compelled to fight for human rights, demand justice, aspire to be noble and courageous, and not kick puppies for the fun of it.

Any belief system that appeals to a Moral Law evokes a Judeo-Christian worldview. How? Because a Moral Law implies a Moral Lawgiver.

Dennis Prager, Jewish speaker and radio talk show host, in his article entitled Moral Absolutes put it simply:

In the Judeo-Christian value system, God is the source of moral values and therefore what is moral and immoral transcends personal or societal opinion. Without God, each society or individual makes up its or his/her moral standards. But once individuals or societies become the source of right and wrong, right and wrong, good and evil, are merely adjectives describing one’s preferences. This is known as moral relativism, and it is the dominant attitude toward morality in modern secular society. (emphasis mine)

There are only two options here, folks. We either live in a world where

1. Morals are grounded outside us (in God / the Universe), or
2. Morals are grounded inside us (in individuals / society).

Either Morals are static or elastic, unchanging or always changing, real or illusory.

Which is why Moral Absolutes are essential to good storytelling. Think about it, even books that frame a godless, impersonal universe of moral relativity appeal to Absolutes to make their point.

For example, take Phillip Pullman’s His Dark Materials trilogy. Pullman is an avowed atheist whose series has been described as “a secular humanist narrative.” The author flatly said, “My books are about killing God.” He’s famously quoted as saying, that the Chronicles of Narnia “is one of the most ugly and poisonous things I’ve ever read,” and is also “blatantly racist”, “monumentally disparaging of women”, “immoral”, and “evil” But even in Phillip Pullman’s universe there had to be an Enemy, Something Worth Fighting For, some Good to accomplish. In that case, the Good was defeating the oppressive Church and its fairy tale deity.

James Cameron’s Avatar is another example. While the deity at the center of Cameron’s universe is portrayed as neutral and impersonal, she is quite fickle. In my post (appropriately titled), Avatar’s Fickle Deity, I concluded:

Cameron wants to have his Nature and eat it too.  So all the while Avatar is pushing a New Age, Neutral Deity, that Deity is busy acting very non-New Age and un-Neutral, arming her forces to the teeth. In the end, the Impartial, Impersonal Force of Cameron’s world turns partial and personal, comes to the rescue and turns, tooth and claw, on the bad guys.

Much like Slumdog Millionaire denied its Hindu roots to make the story work, Avatar must abandon its New Age, Nature-worshiping, Gospel of Gaia sympathies, to bring about sufficient resolution to the story. But frankly, not even $500 million worth of graphics can camouflage Avatar’s ideological absurdity.

As Augustine said, Either there is REAL evil to fear or the fact that we fear what is not really evil, is EVIL. Take your pick. In like manner, either there is Real Evil to fight in Pullman’s worldview or the fact that he feels he must fight something is Really Evil. If Pullman’s book is about “killing God,” the question I ask is “Why should God die?” If it’s because He is evil, then you presuppose Good. If it’s because the existence of God is a lie, then you imply objective Truth.

Defeating God, the Church, or Christian belief becomes pointless unless defeating them is The Right Thing to Do. Fighting bad guys is nonsensical unless there really are bad guys who need beaten. Which presupposes Good and Bad, Right and Wrong. Which appeals to a Judeo-Christian worldview.

Why is it morally better for the Federation to defeat the Klingons? Unless you believe in some sort of absolute objective morality, it’s not. Which is why Andrew Klavan is right, “Without moral truth, there are no good stories.”

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A Bunch of Stuff Happened

Broadcasted at October 23, 2015 at 02:41PM:
"But often, because writing is between the ears, a life event or sickness will almost be taken as a personal assault against the writing. The focus becomes how much time you lost instead of getting back." Oh yeah, how true this can be! Don't take life things as a personal assault on your writing!

A Bunch of Stuff Happened

— Turned in Smith’s Monthly #25 to WMG Publishing. That’s starting the third year.

— You can listen to me and Stephen Campbell in a fun podcast on Author Biz about publishing and business of writing. Worth the listen, folks.

http://ift.tt/1LeO0TN

— It is now last call for October Online Workshops.

Still room and time to sign up. Remember, the workshop only take about 3-4 hours of your time each week at your own pace.

Class #31… Oct 5th … Advanced Depth
Class #32… Oct 5th … Character Voice/Setting
Class #33… Oct 5th … Pacing Your Novel
Class #34… Oct 5th … Ideas into Stories
Class #35… Oct 6th … Character Development
Class #36… Oct 6th … Depth in Writing
Class #37… Oct 6th … Making a Career
Class #38… Oct 7th … Designing Covers
Class #39… Oct 7th … Writing and Selling Short Stories
Class #40… Oct 7th … Adding Suspense to Your Writing

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— Last thing that happened was that Kris blew out her left knee.

————-

THE DAY

Didn’t get much sleep at all last night, so after the writer lunch, I headed home around 4 p.m. to take a very long nap.

About 6 p.m. Kris called me and woke me up. She had been out running and after her run she was walking across the highway and her knee just gave out with a popping sound.

She managed to get off the road before calling me and I went down the hill and picked her up and off we went to the emergency room.

First picture in the emergency room is after the doctor got on the brace and talked with her about the coming days.

Second picture was after her training for the first time in her life on crutches. 55 and never been on crutches. Not sure how she managed that.

She’s been fighting really bad back sprain still from that accident in August, so now not only does she have a bad back, but a very large brace on her knee and she’s on crutches.

On top of that, she just had a tetanus shot and is on massive antibiotics from a cat bite from one of the new cats.

Her attitude is stunningly good.

One more little detail… our house is all stairs. We have four levels.

Crutches… leg brace… stairs… oh, my….

So if you are expecting to hear from Kris at any point over the next few days, might want to just hang tight. She’ll try to explain more on her Facebook page when she can make it to her internet computer.

So I finally got dinner cooked for us around midnight. We watched a little television, got Kris all set up for different tasks, and I managed to get the workshop assignments done while she was watching a little television.

I was finally done with all that by 2:30 a.m. and Kris was sleeping.

I spent until 4 a.m. writing an introduction to Smith’s Monthly #25 (600 words) and then putting the entire issue together.

Then, stunningly, I managed to go over to my writing computer and get 1,500 words done on the new novel.

600 nonfiction words, 1,500 fiction. And a new issue of the magazine turned in on time.

————-

TOPIC OF THE NIGHT: Stuff Happens

I want to say again, right here, that if you are interested in publishing business stuff and some general things about the business of writing, listen to the podcast I did with Stephen Campbell on his great program Author Biz.

Thanks, Stephen for inviting me. It was great fun and I hope entertaining.

http://ift.tt/1LeO0TN

As for stuff happens, like what happened to Kris today and yesterday and last month, you just gather yourself as best you can and keep going.

Writing is a tough thing to do when the brain is focused elsewhere. Even tonight I surprised myself getting any writing done and I’m a master at closing out most life stuff when I come in here.

Notice in the pictures of Kris she was smiling and laughing. She was in pretty amazing pain and dealing with a house of stairs isn’t going to be easy. But she’s just moving right along.

And what was even stranger is that she did nothing to have this happen. Just walking straight across a street. No twisting, nothing. She could be angry and be wasting a ton of energy and time. She’s not.

But she’s in shape, has been working hard to be a runner, and is now acting like an athlete. It’s an injury. When you are an athlete and have an injury, you deal, heal, get strong, and go back.

Well, writing is no different gang. Stuff happens.

You deal, you heal, you get strong again, and you go back to the writing.

But often, because writing is between the ears, a life event or sickness will almost be taken as a personal assault against the writing. The focus becomes how much time you lost instead of getting back.

The focus often becomes how you can’t trust life to let you write, so it’s better to not try again.

Man, do I know all about both of those. I heard myself say that second statement at one point when a life event had derailed my writing for almost a year. I was gun-shy, afraid to go again.

But eventually I heard what I was thinking and saying and cleared it out.

You deal, you heal, you get strong again, and you go back to the writing.

I got a hunch Kris will be writing tomorrow. That’s just who she is.

——

The Writing of STAR RAIN: A SEEDERS UNIVERSE NOVEL

Day 1…. 2,550 words.  Total words so far… 2,550 words.
Day 2…. 2,350 words.  Total words so far… 4,900 words.
Day 3…. 2,500 words.  Total words so far… 7,400 words.
Day 4…. 1,200 words.  Total words so far… 8,600 words.
Day 5…. 1,500 words.  Total words so far… 10,100 words.

————

Totals For Year 3, Month 3, Day 4

Writing in Public blog streak… Day 784

— Daily Fiction: 2,100 original words. Fiction month-to-date: 10,150 words  

— Nonfiction: 600 new words. Nonfiction month-to-date total: 600 words 

— Blog Posts: 900 new words. Blog month-to-date word count: 3,700 words

— E-mail: 37 e-mails. Approx. 1,500 original words.  E-mails month-to date: 86 e-mails. Approx. 2,900 words

— Covers Designed and Finished: 0. Covers finished month-to-date: 0 Covers

 

——–

You can support this ongoing blog at Patreon on a monthly basis. Not per post. Just click on the Patreon image. Extra stuff for different levels of support and I will be adding in more as time goes on. Thanks for your support.

Or you can just toss a tip into the tip jar with a single donation at PayPal. Either way, your support keeps me going at these crazy posts.

And thanks.

If you would like to leave a tip just hit http://ift.tt/1LEdXbz (Goes to WMG Publishing account, but I’ll get it just fine.)

 

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