Indiana Writer and the Contract of DOOM … Or Not

Today, the Publishing 101 series takes a look at what happens when the publishing contract arrives.

We won’t be dissecting contract language today – though contract issues will show up in other posts during 2014. Instead, we’re looking at what the author, and agent, will do when the contract comes.

A note: as the publishing industry changes, a larger number of unrepresented authors are getting publishing contracts. If this happens to you, and you choose not to work with a literary agent, be sure to find a publishing attorney to review your contracts before you sign. Do not sign in haste and repent at leisure.

First off: be prepared for the fact that the contract may or may not arrive right away. Some publishers send contracts for review within a couple of weeks, but larger houses can take six weeks to three months (and sometimes more) to send a contract. Most authors spend this period alternating between excitement and terror that the publisher will change its mind and declare the deal a hoax. Don’t panic. The contract is coming, in its time. Traditional publishing moves slowly — and so do lawyers.

When the contract arrives (it’s sent to the agent if you have one, and to the author if not) the agent will forward a copy to the author. Some agents review the contract first and forward it to the author with a list of points for discussion. Some agents send the contract to the author so that author and agent can discuss the terms together. In my case, since I’m a publishing lawyer, my agent and I reviewed the contract independently, made our lists, and discussed them after the fact.

(An amusing fact: my agent’s list contained not only every item on mine, but several business points that I would have raised with an author client but had already decided I could live with. Thanks to her guidance and recommendation, I didn’t have to — she took even those to the publisher and negotiated concessions in our favor. The moral of the story: even a publishing lawyer can benefit from an agent’s advice.)

After the agent and author decide which business points are acceptable and which points in the contract require further negotiation, the agent will contact the publisher — usually by email — with a list of requested changes to the contract. If the author works with an attorney instead of an agent, either the attorney or the author will deliver this list to the publisher. (Who sends the email depends on various factors and on the relationship between the author and the publishing house.)

The publisher will review the requested changes and accept or reject each one. It’s impossible to create a list of “things the publisher will always accept,” because some publishers negotiate their standard contract language (known as “boilerplate”) with more flexibility than others. Each deal is unique, though certain rights need attention every time. (If you’re not sure which, take a look at the archives on my website – you’ll find lots of information there.)

Sometimes the parties cannot reach consensus on the contract terms. Most commonly, this happens when the publisher wants more rights (and more types of rights) than the author is willing to give. Less commonly, it occurs when other legal terms cannot be negotiated to both parties’ satisfaction. At this point, the author still has the right to walk away. Doing so will terminate the deal, of course, but a bad deal is far worse than no deal at all. Authors often forget this, especially in the excitement of the moment, but this is something no author should ever forget.

Publishing is your business, and smart business people don’t take unfair business deals. Note: there’s a difference between “unfair” and “not everything I ever want with a pony on top and only green M&Ms.” Know the difference, and be willing to compromise where compromise is appropriate.

When the contract reaches an acceptable state the author signs, the publisher signs, and the contract becomes a legally binding obligation on both parties. Congratulations! Now the work begins!

Next week, the Wednesday post will look at the Editorial Letter – which usually arrives shortly after the contract is finalized and signed.

Have questions about this or other aspects of publishing law? I’d love to hear them in the comments!