By Jenny Bent
The Bent Agency blog
I've been thinking about the fact that as an author, it can’t hurt you to have some familiarity with contracts. This is, after all, your business and your livelihood, and just as I really shouldn’t throw away my (personal and NOT professional) financial statements each month and say things to my financial adviser like “I don’t care, do whatever you think is best,” you probably shouldn’t say that to your agent. I’m not saying that you should go out and get your degree in contracts law, but it’s good to know some of the big issues that your agent will be negotiating for you. Ask to see your contract before your agent sends comments to the publisher, and share your questions/comments with your agent, who should be happy to go over everything with you. Having said that, you will be less annoying to your agent if you have done a little homework beforehand. Which brings us (eventually) to my point.
First of all, a great, great resource that I have used throughout my career is a book by Mark Levine called Negotiating a Book Contract You will note if you buy it that there is a blurb on the back from yours truly, and I promise up and down I get no kickback from Mr. Levine, who is a terribly nice man. Okay, I did get a free copy. But I promise, that’s it. Anything you don’t understand about your contract will be explained in this book. www.BookContracts.com.
I’ve decided that if it’s okay with the GenReality folks, I’ll do some recurring yet intermittent posts on contracts. (GenReality folks break in to say YAY!) Otherwise, with the way I go on and on, this would be the never-ending blog. So first, since contracts have been on my mind, I’ll do the option clause and the sneaky next work clause. Later, I’ll do out of print and electronic which also go hand and hand in many ways.
1. Option Clause. The option clause gives the publisher the chance to consider your next book. It doesn’t give them the right to buy it, but it gives them a first look. There’s a lot to cover in an option clause so I’ll separate it all out.
• A. Limit the option. You want to limit the option so that the publisher doesn’t have the right to buy whatever you write next. This may actually be okay with you if you only write novels and you write one every few years (the way that many writers do). But if you write in different genres or you write both fiction and nonfiction you’ll want to make sure that the option matches whatever genre you sold them. Which means try to avoid an option for the “next book.” At the least, do “next work of fiction.” At most, do “next work of singly-authored historical romance written under a pseudonym.” And no, I am not kidding.
• B. Commencement of option. Worst case scenario: two months after publication of the last book in a multibook contract. Best case scenario: whenever you want to submit the material (again, not kidding–I’ve seen this in more than one contract with a major publisher).
• C. Length of option: What length of time do they have to consider the material exclusively? Try for thirty days. Worst case: 90.
• D. Option material: this depends on genre, among other things, or how many books you have written. Sometimes it is perfectly fair for the publisher to ask for a complete manuscript, but mostly you can try for proposal or synopsis with sample chapters. If the publisher is obligated to make the decision to buy you based on sample material, this means you will be able to get income while you are writing and not have to wait for them to make a decision based on your complete book.
• E. Matching clause. This one drives me crazy and frankly is the reason I was inspired to write this. Sometimes the option clause will say that after you’ve complied with the option, and in the event of an offer, negotiated in good faith, and were unable to come to terms with your publisher, and you go out and submit the material to other publishers, you cannot make a deal with another publisher for equal or lesser terms than the original offer from your publisher. You might be thinking, well, fair enough. But what if you were genuinely unhappy with the publisher? If you’ve negotiated with them in good faith, you should be able to move on regardless of the terms. What if your editor moved houses and you’d like to follow her? This language complicates things–it some instances might make it impossible for you to leave a house that you haven’t been happy with. In a perfect world, that language wouldn’t be a problem. But it’s not a perfect world and I would always suggest that you strike that phrase if possible. At least get rid of the “equal” part.
2. Next Work. You can fix the option clause all you want but if you don’t fix the “next work” language you can also be in trouble. They need to go hand and hand. The “next work” clause goes something like this and can often be hidden so you have to look hard: “The Work will be the Author’s Next Work written under his name or a pseudonym or in collaboration with any other person.” What this means is that you can’t publish another book with any other publisher or any other topic until this book comes out. Now, this might be perfectly fine with you and if you are a writer who is just doing one book at a time and only writing in one genre, then it should not be a problem. But if you are writing romance under one name and urban fantasy under another, this language is problematic. It does you not much good to limit your option to “romance written under the pseudonym author X,” if your next work clause says you can’t publish another book before this one is published. You might think, well, that’s okay, I’ll just wait. What if it’s a three book deal? If you’re writing in two genres, you can’t wait for all three books to be published. And if you keep signing contracts with this clause in it, it ensures that you can never publish with a different house. So, you might try to limit a next work clause to read, “next work of romance written under the pseudonym “author X.” When in doubt, just try to match it to the option clause. Sometimes you can’t, in which case just try to limit it as much as you can.
Finally, and I beg you, please, please don’t send your contract to your Uncle Louie the divorce lawyer. If you want to use a lawyer–and that can be a very good idea, particularly if you start to really make a fair amount of money–please, please use an entertainment lawyer who knows publishing law. I can refer you to a few if you want. But using a lawyer who doesn’t specialize in this can really create more problems and hassle than it’s worth.
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