Friday, May 4, 2018

Some Contract Red Flags

Inspired by the current post on Writer Beware.

Disclaimer: I am not a lawyer. This is not legal advice. Just some things to think about:

1. Contracts that request rights the publisher does not intend to or cannot exercise. I had a friend try to talk me into signing with Curiosity Quill (I'm naming and shaming because that publisher has now turned into, surprise, a hot mess) but I walked away when I found out that they wanted me to sign over the movie rights to them. Their grounds were that they would have a better chance of getting the work optioned. Movie rights to a publisher? Nope. In the same vein, only sign over audio rights to a story if the publisher has a track record of using them. Audio is expensive to do yourself, so if you can get them to do it it's great, but signing them over can result in there never being an audio version.

2. Signing over anything in perpetuity or "life of copyright." Now, I have personally signed contracts where the work would stay on the internet in an archive for as long as the short story publisher exists, because a lot ask for that. But they will generally take the work down if you ask.

3. Kill fees/early termination fees. Those are, needless to say, generally bad.

4. No reversion clause if the publisher goes out of business. Although these can't always be enforced, they give you some protection from a book ending up an asset in a bankruptcy case and you not being able to control who gets the right...

5. Any contract that asks you for money up front to cover "expenses" or whatever.

6. Open ended option clauses. The publisher does not need right of first refusal on your next book without any limitations. Generally, I would say it is fine (and polite) to give right of first refusal on a sequel, prequel, or other book in the same world. Also ask for a limit on how long they have to review the work (six months is reasonable).

7. Non-competes. Story time. I had a company try to hire me to write comic scripts for them. I was very excited about the project. I was very much looking forward to it. They said they would send me all of their notes if I signed an NDA. At this point I had not signed a contract with them.

Their NDA contained a corporate style non-compete clause which said that if I wrote anything that even looked like it was inspired by their project, they got the copyright on it. With no sunset clause. This would have included a current project that I had been working on long before I'd heard of these people, and would pretty much have made it impossible for me to write anything set in the real world as long as they existed.

I told them I was not signing it as it stood but was willing to negotiate.

There was no further communication, which indicated they were serious about this.

That kind of ridiculousness is rare, but a common clause for book publishing is for the publisher to ask the author not to publish a similar work within a certain period of time so you are not competing with yourself. This can mean you can only produce one book a year. Some clauses might even be multi-year. Think very carefully about whether a non-compete would harm your career. Some publishers may offer the workaround of "Well, if we publish the book..."

One final red flag:

Very occasionally, a short story market will say that you hand over the rights on submission and get them back when they reject.

This is a no no. No professional magazine does this. It's a way to stop simultaneous submissions. Never submit under these terms because there is a very real risk that the editor will simply never respond, leaving your story in legal limbo.