The Fine Art of Contract Negotiation from a Lawyer’s Perspective

I have been an attorney/lawyer/Esquire-ette/scum-sucking bottom dweller (nudge,nudge, wink, wink, say no MORE) for going on 25 years. I have been a writer for much longer and an author for almost as long. Throughout the years, one factor in the publishing world remains constant: writer/authors often lack skills to negotiate the best agreements with publishers, agents, co-authors, cover artists, all kinds of editors, and many other players in the publishing game even when they are attorneys. Hmmm, so I need to follow my own advice, which I did…eventually.

I’ll give you a “for instance” from  my personal experience when I was still very green to the publishing industry. I was not green as an attorney but not well versed in agents. I signed on with one who successfully got me a publishing contract with a small press. My work had been edited by uber-professionals with ridiculous street cred. That was luck and fate. What happened from there was less stellar and, frankly, my adventure down the road less traveled was akin to a crazy liquor and cheeseburger party on “Trailer House Boys” (a favorite BTW).

I should have paid much more attention to the language in the contract and less to the excitement of being signed.  Said contract offered the author an advance of “stock warrants” in exchange for my rights and a miniscule percentage from sales on a very odd time frame. The hardcover comp copies were decent, though, although I questioned the logic in making one’s debut novel a hardcover and not a trade paperback. Forget that the cover looked like Lady Justice was wearing the S&M version of a cross-your-heart bra (no joke, it was heinous) and the cover price was over $24.00. I remain convinced that many a cover was shoved into a box in some fetishist’s closet.

I was so amped to get the product out to market that, like a fool, I SIGNED it. Dumb and dumber, meet Lisa dumbest at that point. I took securities law and had been a stockbroker’s apprentice in L.A. I knew that stock warrants don’t exist until a company is publicly traded. This house was not and, in all likelihood, never will be. Over a two year period I earned around $11.00 or so for it.

On a positive note, it did help me get onto two panels on small press marketing at the Rocky Mountain Fiction Writers “Colorado Gold” conference. That was good exposure even though most writers who attended my panels were more interested in CONTRACTS and TAXES. I knew I never should have mentioned I was an attorney in my bio.

Long story short, I donned my non-Bridget Jones panties; ended contract with agent (called TERMINATION – remember that word) and got my rights back IMMEDIATELY. Let me hope that after reading this you turn away from the excitement of an offer by agent or publisher and focus on the nature of the relationships and how to work them to your best advantage.

Typical language you can expect to see in a legitimate contract:

Full terms of payment (only applies to agents and/or publishers); disclosure of any and all fees to be taken from your “cut” (these are usually expressed as a percentage); ALL FEES CHARGED FOR THE WORK (primarily self publishing houses); set dates for royalty statements to be sent to you regardless of number of sales; DISPUTE RESOLUTION LANGUAGE so you know exactly how to proceed if you get into it with anyone over the book; BANKRUPTCY language in the event the company folds – this can be particularly true of new indie presses and faux agent houses and creepy publishers who seem “off”.

Begging the obvious and the most overlooked aspect to understanding contract language: Read it even if it is boring, because it will be. It will be boring and dry all at once. If you don’t understand a term, look it up but never ignore it. If you have questions, ask the agent/publisher. If they give a legit response that passes your smell test, do what you need to do to complete the contract and move forward. If it doesn’t meet the smell test drop the agent/publisher like a rock because it could get worse and you could – as I found out from another experienced author’s tales of woe – end up sacrificing your rights for a long time. Preditors & Editors are excellent with regard to SNOPES-ing out the crassdogs in the publishing world.

Why is this so important: the basic economics of publishing dictate that agents, publishers and all affiliated professionals are there to do what? Make money off of your book. It really is that simple. Don’t need no app or algorithm to do that math. This, in turn, requires you to pull your artist ego out of your figurative butt and move to maximize your working knowledge of the process to your advantage.

A webinar on the subject from the most excellent writers digest site:

http://www.writersdigestshop.com/legal-issues-contract-basics-webinar?lid=wdbkblog011113book-contract-endpromo

An excellent book on negotiation that I spent over $100K to discover during dispute resolution class in law school:

6thfloor.pp.fi/fgv/gettingtoyes.pdf

As should be clear from this exceedingly brief and zip overview, contracts are so dang important. Don’t set them aside or blindly sign them because guaranteed, you will regret it. If you have the resources, have an attorney review them for a flat fee (never hourly). If you have a friend in law school, have them run it by their contracts professor as a “hypothetical.” If mom, dad, in-laws, outlaws know attorneys, have their spouse/friend/partner/owes me a favor from way back when after saving me from Guido the thug…review it. Your friend whose already published, your writer’s group, a third set of eyes preferably who has experience and knowledge.

If you are entering into a much less formal agreement with, say, an individual editor or artist, it can be as simple as putting the agreement in your own words in or attached to an e-mail with a “read receipt requested”. It is good to include the obvious things like names and addresses of the parties, a price, scope of work, and dates to finish; as well as making any changes in writing the same way. and including signature lines.

Print it out, sign it and email it back to the other party. You’ve just created a contract.

Obviously this post is not intended to give legal advice, only the lay of legal land you will encounter as a writer/author.

WARNING: CONTAINS VAST AMOUNT OF PROFANITY

About authorlisaadams

Love to write and read books. Became an attorney - not sure why. Surfer, world traveler, vague bohemian and a general outside the box individual...and I like it that way. Makes life interesting and also makes for some good stories.
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