Contract wars: Please, sir...may I have some more?

Colleen and I were coffee-talking yesterday about a migration toward the absurd that we're seeing in the agent agreements authors are being asked to sign. Colleen is the most contract-savvy author I know, so I'm going to bug her to comment on a series of specific issues (basket accounting, option clauses, sexy stuff like that) next week. Meanwhile, I wanted to offer a few thoughts about the topsy-turvy dynamic that starts where the entire publishing industry starts: inside writers' heads.

The author/agent agreement -- particularly for first-time authors -- is prone to lopsided contracts because the writer so often sees herself as the wide-eyed supplicant proffering a little bowl for any scoop of gruel that might dribble down from New York. The notion that "beggars can't be choosers" breeds a timid approach to negotiations in authors who have battled long and hard to get an agent's attention. Unwilling to blow the opportunity to gain representation, they're often willing to sign a contract that offers no guarantees or protections to the author who ends up agreeing to paragraph 8 subparagraph .1.2.5 in which she must hand over her immortal soul and date the agent's ugly brother.

But contracts are a lot more negotiable than many writers think. And writers have a lot more power than they recognize. Battles must be carefully chosen. Requests must be made respectfully with the understanding that none of this is personal. But authors have every right -- in fact they have an obligation -- to protect themselves. The first step is the simple recognition: What I do has value. This isn't Oliver begging the taskmaster for food glorious food. This is a conversation between two equals seeking to form a symbiotic alliance. You're looking for a business partner, not a tape worm. If the agency agreement is all about them and they're not willing to compromise, you're better off walking away.

Though it's mainly geared to screenwriters, I learned a lot from the The Writer Got Screwed (but didn't have to): Guide to the Legal and Business Practices of Writing for the Entertainment Industry by entertainment lawyer Brooke A. Wharton. (I wish she'd do a fresh edition. This one's getting a little long in the tooth.) Sample agreements, interviews with industry pros, and lots of legalese-to-English translation.

Asked about her book title in an interview on filmdependent.com, Wharton said:
I believe it relates to two separate things. One time a while ago I was negotiating a deal and at the end we all just looked at each other and admitted, “the writer got screwed.” But also it speaks to the writer’s position in the industry. The writer is never recognized or compensated commensurately for her or his contribution. But the writer is enormously important to the industry as it exists now, and as more venues are created in which writers’ product can be bought, sold, or exhibited, writers will become even more important. The word “content-driven” really means “writer-driven.”

Comments

Great post, Joni. When I first started out in this business about ten years ago, I did the usual loin-girding in the form of reading up on publishing contracts. (I highly, highly recommended Richard Curtis's updated HOW TO BE YOUR OWN LITERARY AGENT.) I more or less expected "big, bad" publishing conglomerates to try to rip me off and my agent to act as a sort of knight who went out there and defended my contractual rights at lance-point.

What's gotten tougher in the last few years has been the realization that there's nobody really protecting naive authors from the unreasonable demands some literary agents (even well-respected agents from big-name agencies; I'm not talking about small-time scammers out to fleece the unwitting in the form of "reading fees") themselves load into their contracts or -- if they're the handshake sort of agent -- into the agency clause inserted into the publishing contract itself. It's up to us to educate ourselves (and each other) and make informed decisions about what we sign.

I'll blog about this in further detail next week.
Kimberly Frost said…
Joni & Colleen,

Thanks for this interesting post. It reminded me of something that I heard at a conference.

A fantasy author was dealing with a publisher who had actually put something in her contract that said if the book didn't sell, the advance would have to be paid back.

The author really needed the advance to buy a new car, but knew also that, if called to, she wouldn't be able to pay it back. And she decided that no contract was better than a bad contract. So she didn't accept the offer. Her agent later sold the book in a much better deal to a different publisher.

It's hard to remember, but we do have the power to walk away from a bad and/or dangerous offer.
Amie Stuart said…
I was talking about this with friends earlier this week--about accepting an offer, about being afraid of NEVER getting another author ever again (because you know we're neurotic like that LOL) and that fear of letting go of that "bird in the hand" for an elusive better offer.

It's a tough business and the further along I get the more I can see how important it is to have a great agent to stand by your side for a multitude of reasons!
Anonymous said…
Colleen-- Great Topic! Am anxious for your 10:46 blog for more detail. Thanks so much for sharing!
Sincerely, Lois Myers
p.s. I didn't have a chance to buy your "Head On" yet, but I intend to, and maybe you can sign it at next meeting! Take good care and don't push yourself too hard!

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