# Traditional Publishing, Non-Compete Clauses & Rights Grabs



## A. E. Lowan

Informative article by Kameron Hurley

Traditional Publishing, Non-Compete Clauses & Rights Grabs | Kameron Hurley


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## kennyc

A. E. Lowan said:


> Informative article by Kameron Hurley
> 
> Traditional Publishing, Non-Compete Clauses & Rights Grabs | Kameron Hurley



Great article. Thanks for the pointer!


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## Russ

Interesting read.  Odd though.  I have never seen a contract with a non-compete clause, and I have seen a number in the last couple of weeks.

For someone with a good list of awards she makes crap money.


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## Mythopoet

Russ said:


> Interesting read.  Odd though.  I have never seen a contract with a non-compete clause, and I have seen a number in the last couple of weeks.
> 
> For someone with a good list of awards she makes crap money.



Then you are extremely fortunate. This is the kind of thing that debut, mid-list and even lower end best-sellers encounter very frequently.


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## Garren Jacobsen

Hmm, after doing a brief scan of some cases and secondary sources I have to say that the non-compete agreements might actually be enforceable. However, I want to put a huge caveat on this to note that it depends on the state's law that governs the contract. I note that the author of the post links to the IRS page as determinative that a non-compete makes the author an employer but that is simply not the case. This would be used as a single _factor_ in a multi-factor test. Which means that it's just a piece of "evidence" to look for. 

Generally, a non-compete agreement needs to be reasonable as far as time, place, and scope. I think an argument could be made that a year before and after publication is reasonable. I have no idea about place. It could be the whole of NA, or just the US, but to be honest, that would require more digging than I have time for. The biggest issue would be scope. Obviously the more narrow the better for the author, but also the easier for the publisher to win on. I would imagine, and I am just speculating here, that stopping an author from producing any work of fiction would be unreasonable, stopping an author from writing in a "genre" may still be unreasonable. But, stopping an author from writing a novel in the same world or about the same events? Well, that actually might be reasonable. This is all pretty general mind you and just after skimming a couple of cases and some secondary sources. But, it does seem that a covenant not to compete could be enforceable depending on the things mentioned above. All I know is that I would fight tooth and nail to remove one of these agreements or, at least, get it down to not writing in the same world with the same characters.


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## Steerpike

Non-compete agreements are presumptively invalid in California. There are only a few circumstances where they are enforceable, though an author agreement may be one.

Hurley hints in places that authors should be treated more like employees, but from a copyright standpoint that's not a good idea.


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## Garren Jacobsen

Steerpike said:


> Non-compete agreements are presumptively invalid in California. There are only a few circumstances where they are enforceable, though an author agreement may be one.
> 
> Hurley hints in places that authors should be treated more like employees, but from a copyright standpoint that's not a good idea.



I have a question about writing contracts. Do they usually have a choice of law provision and are companies willing to negotiate on that point. And I agree with you that being an employee would screw a writer in ways we really couldn't imagine.


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## Steerpike

Yes, a good lawyer will always have a choice of law provision, as well as venue and jurisdiction. Whether a court will always enforce the choice of law is another matter, though. I haven't looked at it specifically, but I suspect for policy reasons a company can't get around California's general prohibition on noncompetes with employees by having a choice of law provision.


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## Garren Jacobsen

Steerpike said:


> Yes, a good lawyer will always have a choice of law provision, as well as venue and jurisdiction. Whether a court will always enforce the choice of law is another matter, though. I haven't looked at it specifically, but I suspect for policy reasons a company can't get around California's general prohibition on noncompetes with employees by having a choice of law provision.


I think we established why no one has ever taken this to court. It seems like one giant PITA that an author can't afford, going through these various legal doctrines.


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## psychotick

Hi,

Interesting. Yes non-competes are industry standard as I understand it. But I haven't heard of any of them going as far as she suggests. My understanding is that they will prevent an author from publishing a similar or conected work for a period of time. Not any other novel as she suggests. However the clauses vary.

One thing I would suggest. If you do go trade and get an offer, get an agent too. One you can trust to be in your corner.

Another thought is for indies like me who have a few books out and want to keep writing. Protectyour income stream. I have one book sitting on my machine waiting for either an editor or an agent - I haven't decided which. But if I do decide to try my hand at getting a trade deal for it, I'll be strict about the non-compete. I don't care about the advances. I earn enough from my indie publishing. But I cannot afford to have my indie income threatened by a clause. Kameron says be prepared to walk away. I second that.

Cheers, Greg.


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## Russ

psychotick said:


> Kameron says be prepared to walk away. I second that.



One should always be prepared to walk away in any negotiation.


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## MichaelSullivan

Russ said:


> Interesting read.  Odd though.  I have never seen a contract with a non-compete clause, and I have seen a number in the last couple of weeks.



Well, it depends on where the contracts are coming from. I've yet to see a big-five contract that *DOESN'T* have a non-compete.  And...what's more. I've had meals with several authors who have told me, "I don't have a non-compete" - when I know full well that they do because we are published by the same publisher.  So I tell them to go home and look at paragraph #16 - and get back to me.  Their response, "Well, look at that...I had no idea it was there. Why didn't my agent mention it?" 

The reason...they are "industry standard" and the agent can't get them out.  And they get paid if you sign the contract, but earn nothing if you don't.  Yes, a non-compete can be defanged - I know, I've done it twice now and it's (a) not easy and (b) not quick.  Took over six months for each one - and during most of the proceedings we were inches from not signing over the issue.  I was able to get my first contract nicely defanged...my current contract has a TERRIBLE non-compete. One I'm actually kind of sick about signing. But at the end of the day, the other things I got from the contract made it worth doing...and I have to console myself that I'm limited for a relatively short period of time.  That makes it a bit easier to stomach - but not by much.


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## MichaelSullivan

Russ said:


> For someone with a good list of awards she makes crap money.



I think you'd be surprised just how many authors with a good number of book and awards are making "crap money." I actually earn well, but that's the exception not the rule and I would like to see that dynamic shift.


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## MichaelSullivan

Mythopoet said:


> Then you are extremely fortunate. This is the kind of thing that debut, mid-list and even lower end best-sellers encounter very frequently.



Indeed, and that's just a terrible state of affairs.


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## MichaelSullivan

Brian Scott Allen said:


> Hmm, after doing a brief scan of some cases and secondary sources I have to say that the non-compete agreements might actually be enforceable. However, I want to put a huge caveat on this to note that it depends on the state's law that governs the contract. I note that the author of the post links to the IRS page as determinative that a non-compete makes the author an employer but that is simply not the case. This would be used as a single _factor_ in a multi-factor test. Which means that it's just a piece of "evidence" to look for.



I don't agree...the contracts for the big-five are all written such that they are governed by the laws of New York, and New York has right to work legislation.



Brian Scott Allen said:


> Generally, a non-compete agreement needs to be reasonable as far as time, place, and scope. I think an argument could be made that a year before and after publication is reasonable.



Exactly...but the first contract I was offered had a non-compete that was written to be in enforce for the "term of the contract" and the term the contract was "life of copyright" - I don't think any judge would say that until the author's death + 70 years is a reasonable amount of time ;-)




Brian Scott Allen said:


> I think an argument could be made that a year before and after publication is reasonable.



I don't think keeping someone from publishing for two whole years is reasonable...Do you think it is reasonable for your employer to tell you you can't take a second job to make ends meet for 2 years?  Will your bank decrease your mortgage payment for two years?  I negotiated my first contract such that I couldn't publish for 3 months to either side of a publication date - that's six months "off the market" - and THAT I do think is reasonable - although I would be happier with four months.

But...That's even that's not what we are talking about in most cases. The non-compete I have with my current contract is while they are rolling out the books they've signed.  I've signed 4 books with them, and "in theory" they could take as much as two years after I deliver each one.  This could mean a decade where I'm cut off from publishing other works.  Now, I have some changes to that contract so that I can do "some" things during that time. But the work I make my bread and butter on "could" be adversely affected -- and my fans left waiting for more. Now, I don't *think* they would draw out the books to their maximum time - but if they started to....you can be sure I'd take it to court.

Bottom line - a contract should be for the book being signed - and what the author does with their time outside the confines of that contract should be their businesses. And if they need money, they make it by writing and shouldn't have to take a "different" job to make ends meet.

I have no idea about place. It could be the whole of NA, or just the US, but to be honest, that would require more digging than I have time for. The biggest issue would be scope. Obviously the more narrow the better for the author, but also the easier for the publisher to win on. I would imagine, and I am just speculating here, that stopping an author from producing any work of fiction would be unreasonable, stopping an author from writing in a "genre" may still be unreasonable. But, stopping an author from writing a novel in the same world or about the same events? Well, that actually might be reasonable. This is all pretty general mind you and just after skimming a couple of cases and some secondary sources. But, it does seem that a covenant not to compete could be enforceable depending on the things mentioned above. All I know is that I would fight tooth and nail to remove one of these agreements or, at least, get it down to not writing in the same world with the same characters.[/QUOTE]


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## Russ

MichaelSullivan said:


> Well, it depends on where the contracts are coming from. I've yet to see a big-five contract that *DOESN'T* have a non-compete.  And...what's more. I've had meals with several authors who have told me, "I don't have a non-compete" - when I know full well that they do because we are published by the same publisher.  So I tell them to go home and look at paragraph #16 - and get back to me.  Their response, "Well, look at that...I had no idea it was there. Why didn't my agent mention it?"
> 
> The reason...they are "industry standard" and the agent can't get them out.  And they get paid if you sign the contract, but earn nothing if you don't.  Yes, a non-compete can be defanged - I know, I've done it twice now and it's (a) not easy and (b) not quick.  Took over six months for each one - and during most of the proceedings we were inches from not signing over the issue.  I was able to get my first contract nicely defanged...my current contract has a TERRIBLE non-compete. One I'm actually kind of sick about signing. But at the end of the day, the other things I got from the contract made it worth doing...and I have to console myself that I'm limited for a relatively short period of time.  That makes it a bit easier to stomach - but not by much.



A couple of comments should be made in this regard.

The first is that just because the contract is with the same publisher does not mean it contains the same terms, not even within the same imprint.  A good agent, or a writer in a better position can produce a completely different contract than a weak agent or an author in a weak position.  For instance some writers in the same imprint are on the four payment schedule while others are on the two or three.  There are few clauses that a publisher will stand by if a valuable author with a strong agent is willing to push back.

While there is a suggestion that publishers have standard contract terms, the reverse is also true for agents and agencies.  Some agencies are known to have strict policies on what terms they will allow their writers to sign and deliver their clients far better terms that agents who are known to be less flexible.  For instance Writer's House (for example purposes only) is known to be fierce in their representation of clients and do not allow their writers to sign contracts with terms they object to, and have many standard clauses that they insist be put into the contract.  It sometimes slows the process but the results appear to be worth it.

Sorry to hear about your current contract.  Hopefully the next one will be better.


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## Russ

MichaelSullivan said:


> I think you'd be surprised just how many authors with a good number of book and awards are making "crap money." I actually earn well, but that's the exception not the rule and I would like to see that dynamic shift.



To me, a situation where someone who wins literary awards but makes poor money is likely a very fine writer who is a poor business person or with an ineffective agent.


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## MichaelSullivan

Brian Scott Allen said:


> But, stopping an author from writing a novel in the same world or about the same events? Well, that actually might be reasonable.



If I were to tell the fans of the Riyria books they couldn't get another Royce and Hadrian book for a decade, I don't think they would consider that reasonable at all!




Brian Scott Allen said:


> All I know is that I would fight tooth and nail to remove one of these agreements or, at least, get it down to not writing in the same world with the same characters.



You can fight all you want - but the non-compete will not be removed - You can, and should, get it defanged. But to be honest, I think you are setting the bar MUCh too low.  It's an existing world and characters that readers are paying you for, and if someone wants you to NOT produce that - then they should compensate you.  Like farmers are given money NOT to plant certain crops. But to stop you from doing what produces your income without compensation?  No, I can't agree to that.


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## MichaelSullivan

Steerpike said:


> Non-compete agreements are presumptively invalid in California.



Yes, I agree...but the same thing applies based on New York law, but just because they are not enforceable doesn't mean the publishers don't put them in the contracts. They are counting on authors not taking them to court. Since they know they'll lose, I'm guessing that if a threat of action is made, the author would get permission to publish what they want.  After all, the agreement just says the publisher has to "approve" and I think they will.  They DON'T want to be ruled against this. And they don't want to be forced to remove them altogether from contracts.


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## MichaelSullivan

Brian Scott Allen said:


> I have a question about writing contracts. Do they usually have a choice of law provision and are companies willing to negotiate on that point.



In theory...yes.  In reality...no. All New York publishers will insist that the contract is governed by he Laws of New York. I've talked to several who have tried to get that clause of the contract changed and it's always been a "deal breaker" for the publisher.


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## MichaelSullivan

Steerpike said:


> Yes, a good lawyer will always have a choice of law provision, as well as venue and jurisdiction. Whether a court will always enforce the choice of law is another matter, though. I haven't looked at it specifically, but I suspect for policy reasons a company can't get around California's general prohibition on noncompetes with employees by having a choice of law provision.



Are you saying that if the contract says, as they all do, that this contract will be governed by the laws of State X, a "good lawyer" can have that part of the contract ignored? I would find that difficult to believe.


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## MichaelSullivan

Brian Scott Allen said:


> I think we established why no one has ever taken this to court. It seems like one giant PITA that an author can't afford, going through these various legal doctrines.




The Author's Guild is now involved in trying to adjust such clauses. My guess is they will be more than willing to offer to use their legal defense funds for an author that wants to challenge it. I think we'll see just such a case occurring soon.


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## MichaelSullivan

psychotick said:


> One thing I would suggest. If you do go trade and get an offer, get an agent too. One you can trust to be in your corner.



Good advice - but let me explain my situation. I had an agent who was an ex-lawyer. And when I saw my non-compete (which was for the length of the copyright for "any work which might affect sales" - which could easily be interpreted as any other fiction book I write). I said, "No way in hell will I sign that."

Her response wasn't, "You're right, that wouldn't be in your best interest." It was, "They are industry standard, everyone signs them. Stephen King has them. They are never enforced. And it comes from corporate and you can't get them removed or changed."

My response, was (a) I can't believe that is true and (b) I won't sign it. So she put me in touch with one of the largest IP attorneys in the publishing business and he pulled contract after contract and read me the non-competes that other authors have signed.  He echoed what my agent had said, and that I had two choices: (a) walk, (b) sign as it is.

I still said no. After six months of excrutiating negotiations I finally got it defanged - something neither my agent nor my IP attorney said was possible. and then...and only then did I sign.


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## MichaelSullivan

psychotick said:


> But if I do decide to try my hand at getting a trade deal for it, I'll be strict about the non-compete. I don't care about the advances. I earn enough from my indie publishing. But I cannot afford to have my indie income threatened by a clause. Kameron says be prepared to walk away. I second that.



Which is exactly where I was.  In the end, it got fixed - but it wasn't (a) fast and (b) it wasn't painless.  Still, authors who have come after me at the publisher mention how easy it was to get their non-compete adjusted.  I had to laugh.  That's was (a) because I already made the precedence and (b) why did you have to ask - why wasn't the "better language" already there.  The answer is - if they think they can get away with the more restrictive language they are going to give it a try.  But yes, once one author has broken the door - if you know they have then you can point to them and say - give me what he got.


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## MichaelSullivan

Russ said:


> One should always be prepared to walk away in any negotiation.



Without question..and in the case where you have self-published income - it's easy to do.  And if the offer is small - also easy to do. But when you have more than a half million dollars on the line....it get a lot harder.


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## Russ

MichaelSullivan said:


> Without question..and in the case where you have self-published income - it's easy to do.  And if the offer is small - also easy to do. But when you have more than a half million dollars on the line....it get a lot harder.



If publisher A is willing to pay you a half million bucks for a contract, you are in a pretty good position to head on over to publisher B.


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## MichaelSullivan

Russ said:


> The first is that just because the contract is with the same publisher does not mean it contains the same terms, not even within the same imprint.



Yes, and no.  There are certain aspect of the clause that are basically non-negotiable. 


 We all get 25% of net on ebooks
 We all have the same %'s on hardcovers (10% first 5,000, 12.5% next 5,000, 15% above 10,000)
 All terms are life of copyright
 All contracts have non-competes
 All contracts have option clauses
 I could go on and on.

There are a number of things that CAN and are negotiated.
[*] All languages or just English speaking
[*] World rights or NA only
[*] Audio rights retained or signed
[*] Movie rights retained or signed
[*] Joint-accounting or basket accounting
[*] Three payments or four payments for advance.
[*] Amount of advance and schedule of payment
[*] Number of books under contract
[*] Again I can go on and on.

But I can tell you the paragraph number for where the various "non-negotiable" clauses are - which is why I can tell my fellow Orbit author who claims they don't have a non-compete to go read paragraph #16.  You have no idea how many authors have no idea what is in their contracts. And you have no idea how many swore they did' have a noncompete until I told them to look and low and behold there it was.



Russ said:


> A good agent, or a writer in a better position can produce a completely different contract than a weak agent or an author in a weak position.



The devil is in the details, and I suspect what you think is "completely different" I'm going to see as having only "minor adjustments."  Let's take areal world example.

All contracts will have criteria that specifies when a book is "out of print" and rights revert.  The worst contract will say, as long as a copy (including ebook is in available - it's in print)/  A "better" contract will say as long as x copies are sold in y amount of time - it's in print.  - The problem with that is a quick sale near the end of the reporting period will break the threshold and keep the book in print.  A "even better" contract will says long as $x is earned in y period of time - it is in print.  But the problem is what the threshold?  I can tell you that every contract's threshold is so low that it's laughable.  For me, as long as I earn $500 in a year the book is in print.  That's $9.60 a week - which is laughable.  Now...my agent...who was representing an author MUCH bigger than myself and for a deal that was for more than 1,000,000 want to get that raised.  They wanted $2,000 a year - which to me sounds more reasonable. The publisher raised it to $750.  Wow - now we go from $9.60 to $15 a week.  Woohoo.  The agent pushed back. The publisher's answer..."$750 is the highest we'll go. It's a deal breaker.  So yes, someone who can command a seven-figure contract can't get a decent amount for "ongoing income."



Russ said:


> For instance some writers in the same imprint are on the four payment schedule while others are on the two or three.  There are few clauses that a publisher will stand by if a valuable author with a strong agent is willing to push back.



Yes, that is definitely one that can be different - as I noted above - but seriously?  does anyone really care if you get your advance x days earlier? Not when faced with things like NEVER GETTING BACK YOUR RIGHTS!




Russ said:


> While there is a suggestion that publishers have standard contract terms, the reverse is also true for agents and agencies.  Some agencies are known to have strict policies on what terms they will allow their writers to sign and deliver their clients far better terms that agents who are known to be less flexible.  For instance Writer's House (for example purposes only) is known to be fierce in their representation of clients and do not allow their writers to sign contracts with terms they object to, and have many standard clauses that they insist be put into the contract.  It sometimes slows the process but the results appear to be worth it.



Again, you are correct - but they are so trivial to be laughable. For instance, I know an agency that always get's joint accounting rather than basket accounting. Is that nice. Yeah, sure. I'd prefer it to not having it.  But show me an agency that can get a reasonable out of print clause...it doesn't exist.  When I was about to shop around my most recent contract I talked to 10 of the biggest IP attorneys in the book business and asked each one of them if I could get movement on x and y and z.  And not one of them said they could -- no matter who the client was.  



Russ said:


> Sorry to hear about your current contract.  Hopefully the next one will be better.



No need to be sorry, I have plenty of "wiggle room" and I think based on how this publisher has treated me so far they will be reasonable and provide approval when I want to do x or y or z.  I wouldn't have signed it if I was worried about long term repercussions. The situation was unfortunate -- and the problem was a miscommunication between my agent and my publisher.  They were not on the same page - even though I had been crystal clear.  In the end, I could have walked, but we made some changes at the 11th hour to make it "workable" - is it what I want? No.  Is it what I think is fair? No.  Do I think it will matter? Probably not.  At present, it's not an issue as I don't have a work ready to go.  But in a year or two, I might...and we'll see what they say about publishing that work. If they refuse, I think I have an excellent case to challenge the non-compete and I'd be more than willing to be a test case.  It'll only be an issue if the publisher and I don't work as a team, and at this point, I see them extending the olive branch in an appropriate way.  So while the contract might not be ideal, the reality may be just fine.  

But...you can't "expect that" - any author has to look at a contract in the "worst case scenario."


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## Devor

Russ said:


> If publisher A is willing to pay you a half million bucks for a contract, you are in a pretty good position to head on over to publisher B.



I wouldn't count on it.  At least part of an offer like that would come from the way your book fits into the publisher's portfolio of works. There are also specific people responsible for coming up with that offer.  There's no reason to assume that another publisher would be willing to match it.

((edit))

Also, Michael, it's good to see you back.


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## MichaelSullivan

Russ said:


> To me, a situation where someone who wins literary awards but makes poor money is likely a very fine writer who is a poor business person or with an ineffective agent.



I think you are quite naive as to the reality of the business. I know Kameron personally, and I'll tell you there are few authors who are savvy as her when it comes to contracts - she is an EXCEPTIONAL business person. I don't know her agent, personally, but I can say that Kameron calls the shots and she would't let someone who is ineffective lead her astray.  So...I think you have come to the wrong conclusion.  It's not that Kameron or her people are ineffectual. It's that there is only so much pushing you can do.  The publishers wield so much more power than the author - there are thousands who are more than willing to accept a "less than ideal contract." And if I, or Kameron walk from the bad ones, it ultimately doesn't change anything. In a very real sense, most authors are cogs in a system, and they are more than willing to replace you with someone else.


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## MichaelSullivan

Russ said:


> If publisher A is willing to pay you a half million bucks for a contract, you are in a pretty good position to head on over to publisher B.



Well first of all...no.  For a contract that I was paid more than a half million dollars I got (a) several rejections (b) one publisher that wouldn't produce the book in hardcover - a deal breaker for me so that was off the table (c) at least one that wouldn't consider it without audio rights - which I had previously sold so that was off the table (c) other offers that weren't nearly as attractive (d) at least one at laughable advance level (e) and a few that were still working on their terms.  Now would one of those I hadn't heard from come in?  I don't know.  But at the time I had (a) an advance I was happy with (b) the company I wanted to work with (c) pre-negotiating terms that I thought we all agreed on.  So there was no reason not to say  yes.  It was only months and months later that we realized that the publishers and I were on different pages with regards to the non-compete.  And we worked out a compromise. Probably not what they wanted, and certainly not what I wanted. But it was "good enough" for both of us to move forward with.

Had the deal fallen apart my only recourse would be to self-publish - which would have been fine. Any other publisher would wonder why a broker deal went bad - and it would scare them away.


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## MichaelSullivan

Devor said:


> I wouldn't count on it.  At least part of an offer like that would come from the way your book fits into the publisher's portfolio of works. There are also specific people responsible for coming up with that offer.  There's no reason to assume that another publisher would be willing to match it.



Exactly correct. A book that resonates with one editor, might not with another. I know of one fairly proficient author who contends that there is only one editor in all of publishing who would release his books - and he's just glad he found that one.  He's convinced if anything ever happens to that relationship - he's done even though he's sold millions of copies.





Devor said:


> Also, Michael, it's good to see you back.



It's good to be back. I've had a pretty crazy time as of late. But now things are calming down and I have more time.


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## Russ

MichaelSullivan said:


> Yes, and no.  There are certain aspect of the clause that are basically non-negotiable.
> 
> 
> We all get 25% of net on ebooks
> We all have the same %'s on hardcovers (10% first 5,000, 12.5% next 5,000, 15% above 10,000)
> All terms are life of copyright
> All contracts have non-competes
> All contracts have option clauses
> I could go on and on.



Actually some of the things in your non-negotiable list are negotiable.  For instance there are people getting variable rates of e book sales beyond 25% at certain sales levels.  Some up to 40% for very strong sales.  

There are contracts without non-competes.  There are contracts with different %'s than the ones you quote for hard covers as well.

In the article that started this thread Ms. Kameron says:



> Remember that what you see in a contract is never, ever set in stone.



Or perhaps she is more naive than I? 




> But I can tell you the paragraph number for where the various "non-negotiable" clauses are - which is why I can tell my fellow Orbit author who claims they don't have a non-compete to go read paragraph #16.  You have no idea how many authors have no idea what is in their contracts. And you have no idea how many swore they did' have a noncompete until I told them to look and low and behold there it was.



I don't have any Orbit contracts but I have a number from other Hachette imprints, some do not have non competes.  I will have a look at them when I get home tonight to see if those that do have it at para 16.



> Yes, that is definitely one that can be different - as I noted above - but seriously?  does anyone really care if you get your advance x days earlier? Not when faced with things like NEVER GETTING BACK YOUR RIGHTS!



Funny, the Author's Guild initiative you have talked about has made this issue one of their big points.  If you are a member perhaps you should suggest they rethink their approach.


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## Russ

MichaelSullivan said:


> I think you are quite naive as to the reality of the business. I know Kameron personally, and I'll tell you there are few authors who are savvy as her when it comes to contracts - she is an EXCEPTIONAL business person. I don't know her agent, personally, but I can say that Kameron calls the shots and she would't let someone who is ineffective lead her astray.  So...I think you have come to the wrong conclusion.  It's not that Kameron or her people are ineffectual. It's that there is only so much pushing you can do.  The publishers wield so much more power than the author - there are thousands who are more than willing to accept a "less than ideal contract." And if I, or Kameron walk from the bad ones, it ultimately doesn't change anything. In a very real sense, most authors are cogs in a system, and they are more than willing to replace you with someone else.



In the area of naivety let me suggest that my father worked his whole career in publishing, I worked in publishing before becoming a lawyer, my wife works in publishing and a significant portion of the people I spend time with are in the industry.

Despite the fact that you know Kamerson personally, there are reasons that her top advance was what, $20k, and you have done deals much, much larger than that.  You are both authors, yes publishers have a great deal of power, and thus you are both cogs in the system, like almost any other job.

But there are reasons that you have made significantly more than she has.  What do you think they are?


----------



## Russ

MichaelSullivan said:


> Exactly correct. A book that resonates with one editor, might not with another. I know of one fairly proficient author who contends that there is only one editor in all of publishing who would release his books - and he's just glad he found that one.  He's convinced if anything ever happens to that relationship - he's done even though he's sold millions of copies.



This presumes, strangely, that a $500,000 deal is done via the willpower or taste of a single editor.  That may happen, but it is pretty rare.  Most purchases at that level are done by a committee or group, not a single person.  You can argue whether or not that is a good or bad thing, but it is a reality of the business today.

If you have a product that you can sell to publisher A for $500,000, it is pretty likely that you could sell it to publisher B for something pretty darned close.  In fact your own description suggests there were plenty of other sources you could have sold that particular deal to, but they just had not developed yet.

I am not suggesting you did the wrong things (I have no idea), what I am suggesting is that someone with a $500,000 product (obviously a strong product and author with substantial traction) has a lot more options to sell elsewhere than a debut author looking at an $8k advance or a royalties only deal.

By the by, isn't it a bit odd to sell the audio rights before you sell your home turf print rights?


----------



## MichaelSullivan

Russ said:


> Actually some of the things in your non-negotiable list are negotiable.  For instance there are people getting variable rates of e book sales beyond 25% at certain sales levels.  Some up to 40% for very strong sales.



Not to sound like a broken record, but I'm talking about within the *big-five*. Yes you can get a different royalty rate with a smaller press, but if you are published by Tor, Ace, Orbit, Del Rey, Harper Voyager - you are getting 25% of net.  For example. The biggest earners in the genre recently banded together and made a pact not to sign another contract at 25% of net of ebooks.  Then I saw one of them sign a new contract, so I asked if that meant they got the royalty rate upped. The answer was no.  Instead the publisher adjusted the advance to be larger than that author will  ever earn back, so while the royalty rate is the same -- they'll end up making a higher amount. THIS is how the publishing industry deals with the "big earners" - the royalty rates are the same, but the authors get more money because they have high advances that won't earn out.  

By the way...my contracts have auto-escallators which means if the publisher signs another author with the higher royalty rate, then my royalty rate goes up. And I assure you my rate hasn't changed. Now you could say that they signed, and didn't tell me about it - but I'm sure if I do an audit (which I'm in my rights to do so) I'll find they haven't given more than 25% of net to anyone else.  By the way...I do know that contracts written some time in the past DID have higher than 25% but that was before ebooks were "a thing" and once they became a major venue the standardization has been 25% across the board. So yes, I can believe that an "old contract" could have an ebook rate of even 50% -- but you can't get a deal written with those terms today.



Russ said:


> There are contracts without non-competes.


Again, I've talked to more than half a dozen of THE IP attorneys in publishing and they all say the same thing. You can get a "modified" non-compete but they haven't seen a single one written without one. I've personally told more than a dozen people who swear they don't have non-competes...that they do, and EVERY one of them have come back and said, "You're right."  Ask Mark Lawrence if he has a non-compete?  After seeing him say in a number of posts that he didn't I asked him to check - guess what he does.



Russ said:


> There are contracts with different %'s than the ones you quote for hard covers as well.


This one I would say is conceivably possible -- but I would have to see the signed contract with my own eyes before I'll come off my stance. I've seen more than 80 contracts to date and every single big-five contract had THE EXACT same royalty rates for hardcovers.  I have seen some variations in paperback (and mass market paperback) but only in fractions of a %'s. Romance and tie-in novels is much less, but I've seen no contract that is higher.  But, hey, prove me wrong. Send me the contract and I'll eat my words - but over the last eight years of looking for a contract to refute my claims I've yet to see them.  In fact, Brandon Sanderson, who is one of the highest paid authors in the industry, distributes his contract as part of the class he does at BYU - so go look at it some time.  It'll bare out what I'm saying.



Russ said:


> Or perhaps she is more naive than I?



Hmmm...I've signed 5 six-figure contracts (one for more than half a million), three of which were with two different big-five presses. I've signed more than 50 foreign language contracts.  I've also compared contracts with several dozen fellow big-five published authors.  My agent is one of the biggest names in the industry and not only represents me but also Brandon Sanderson, Peter V. Brett, Jack Campbell, Charlaine Harris and dozens of others. When I discuss with him where he can and cannot move the needle is he lying to me?  What about the conference calls I've had with multiple agents and IP attorneys?  When I ask them, "Have you ever seen a contract with anything other than 25% of net?" and they say...."not yet, but I think it's only a matter of time." Are they lying? 

I'm not speaking from "theory" - I'm speaking from hands-on experience.  But I'm not here to convince you of anything. All I can do is share my experience and those of others - who ARE ACTUALLY SIGNED!  I suspect you are reporting "what you've heard"  or talking about small-press contracts - which are a whole different ball game. I don't have anything against small presses.  Heck, I've signed with two of them in the past.  But they don't move the needle of the author's published through them.  Today, if you are "in publishing" you have to be either (a) a successful self-published author or (b) with the big-five. I've done both and know people who have done both. The information I'm sharing isn't theory and conjecture it comes from real-world experience.

You can either listen or not. I really don't care. But I'm sure there are others who are reading this that may be getting something out of what I'm saying.


----------



## MichaelSullivan

Russ said:


> This presumes, strangely, that a $500,000 deal is done via the willpower or taste of a single editor.  That may happen, but it is pretty rare.  Most purchases at that level are done by a committee or group, not a single person.  You can argue whether or not that is a good or bad thing, but it is a reality of the business today.



Did I say the decisions weren't made by committees?  But before it gets to committees you have to have the acquisition editor who is willing to champion it. What one person likes, another may not.  And if they don't, it never GETS to the committee. 



Russ said:


> If you have a product that you can sell to publisher A for $500,000, it is pretty likely that you could sell it to publisher B for something pretty darned close.



Not true at all.  I had offers for 5-books that were less than what another publisher was offering for one book. And to make that low offer  they needed approval from their other departments. Do you think they can go back and say, "Okay I know we all agreed on $125,000 but we're going to have to pay $500,000 to be in contention." Do you think that's what they'll do?  No. They came out of that original meeting with a cost analysis that calculated  a range and then they offered a number that was probably less than their maximum, but only a fool would offer a quarter of what they authorized to pay. 

But let's just say for the sake of argument that it happened exactly that way.  They met with their committee and decided the price could be somewhere between $100,000 and $500,000. And the person who was making the offer decided to low-ball it and offer $125,000.  Do you want to sign with someone that though so little of your work when first submitted?  I sure as hell wouldn't.  I'm not going to sign with someone after they slap me in the face

In fact, let's look at the difference between my first and second contract with the same publisher.  For the first contract they offered me six-figures, I thought it was fair. We signed. All good. I earned out in 9 months proving the amount was a good one, but still a bit low as the books have earned me more than two and a half times the original advance.  So anyways...I present a second series.  Now based on that data, the advance offer should be higher than the first contract, right?  Wrong.  They came in with a offer that was still six-figures but was less per book than the first contract. Why do such a thing?  Because they thought I would take it.  I wouldn't.  My agent ended up getting them to come up - a lot....such that it was more per book than the first contract, but to be honest, if they had made me a fair offer out of the gate, they could have gotten me for a lot less than they did.  By pissing me off with the first offer, I wanted more than I normally would have.  And...it tainted our relationship. I signed that contract because they were paying more than "market rate" - but did I really want to continue doing business with them? No.  It showed a lack of respect that drove a wedge.



Russ said:


> In fact your own description suggests there were plenty of other sources you could have sold that particular deal to, but they just had not developed yet.



Plenty?  How many big-five fantasy imprints are there? Count them up...it's not that many, and I already had an offer I wanted from my first choice - would I take a third-stringer just because they matched or bumped the advance a bit? No. I took the offer I did because it was (a) fair and (b) a company I respected. As I said, it wasn't until much later in the game that we realized that the agent hadn't properly communicated the requirements of the non-compete.  Did it cause friction, yeah.  But as I said the publisher has done plenty of things to show they value me and my work that I think if I have a work to publish, they'll provide the approval that is required.



Russ said:


> I am not suggesting you did the wrong things (I have no idea), what I am suggesting is that someone with a $500,000 product (obviously a strong product and author with substantial traction) has a lot more options to sell elsewhere than a debut author looking at an $8k advance or a royalties only deal.



We are not in disagreement about the fact that someone who gets $500,000 offers has more leverage than a debut author getting $8,000...but what I'm telling you is even when you are getting $500,000 there are some things the publishers are NOT willing to bend on. THAT's the takeaway.  Or at least it should be.


----------



## MichaelSullivan

Russ said:


> By the by, isn't it a bit odd to sell the audio rights before you sell your home turf print rights?



You betcha - and it's very, very smart.  Why?  Well because for contract #1 I tried to get audio rights held back and my agent couldn't deliver, and then for contract #2, I tried again to hold them back, and again the publisher made it a "deal breaker."  So as long as the rights were available the publisher was going to want them. Period.

But, sell them ahead of time, and they are off the table. So the publisher has to decide if the print and ebook is enough for them. For all but one of the publishers, it was.  For the first two contracts I signed (where I couldn't keep the rights back), I have to split everything the audio books makes with the publisher 50/50 for doing nothing more than signing a piece of paper.  To date I've lost more than six-figures because of the way that deal was structured. In fact, that publisher has earned more from that one subsidiary right, then they paid me for an advance. And I had a really big advance.  So, yeah, I kinda object to losing half the money when the publisher doesn't have to do anything on their end.

By keeping that right, not only did I get a six-figure advance for the audio rights, but my piece of the pie went up substantially because less people have fingers in the pie. The most recent audio deal I've brokered has an advance for one book that is almost the same as the print/ebook advance). So by selling the audio rights first I make just shy of double the money.  Seems like a good strategy to me.


----------



## Russ

MichaelSullivan said:


> You betcha - and it's very, very smart.  Why?  Well because for contract #1 I tried to get audio rights held back and my agent couldn't deliver, and then for contract #2, I tried again to hold them back, and again the publisher made it a "deal breaker."  So as long as the rights were available the publisher was going to want them. Period.
> 
> But, sell them ahead of time, and they are off the table. So the publisher has to decide if the print and ebook is enough for them. For all but one of the publishers, it was.  For the first two contracts I signed (where I couldn't keep the rights back), I have to split everything the audio books makes with the publisher 50/50 for doing nothing more than signing a piece of paper.  To date I've lost more than six-figures because of the way that deal was structured. In fact, that publisher has earned more from that one subsidiary right, then they paid me for an advance. And I had a really big advance.  So, yeah, I kinda object to losing half the money when the publisher doesn't have to do anything on their end.
> 
> By keeping that right, not only did I get a six-figure advance for the audio rights, but my piece of the pie went up substantially because less people have fingers in the pie. The most recent audio deal I've brokered has an advance for one book that is almost the same as the print/ebook advance). So by selling the audio rights first I make just shy of double the money.  Seems like a good strategy to me.



Well there are different ways to go at it, but I am pleased it worked for you.

For instance, one can get the offers in for the audio rights so you know a real market figure for the value, and when your agent receives an offer for the book they can then go back to the publisher and say "that is reasonable for the book but we want $X more for the audio rights."  Then they can either match it or go without.  Works just as well because you are still only giving  up the 15% to your agent.


----------



## MichaelSullivan

Russ said:


> In the article that started this thread Ms. Kameron says:
> 
> 
> 
> 
> Remember that what you see in a contract is never, ever set in stone.
> 
> 
> 
> 
> Or perhaps she is more naive than I?
Click to expand...


Kameron and I have discussed these various clauses at length. Go ahead and ask her about them.  You'll see we are on the same page. Her statement wasn't meant to indicate that with higher sales she can bend publishers to her will. She knows the score.



Russ said:


> I don't have any Orbit contracts but I have a number from other Hachette imprints, some do not have non competes.  I will have a look at them when I get home tonight to see if those that do have it at para 16.



The lack of non-competes is what all the authors said to me as well. But go ahead and look. No one would be more excited than I to discover a contract without one. In a non-Orbit contract it might be a different number. And it might be called something else. Look for paragraphs that talk about "conflicting publication." What I can say is the "non-compete" clause came from the "Hachette level" not Orbit. The IP attorney I was working with pulled contracts from Grand Central Publishing, Mulholland Books, Fithworks and Hodder & Stoughton, just to name a few.  I highly doubt you'll find any - but send me a copy - you can redact the author's name and advance amount. As I said, I'd be happy to be proven wrong - but having gone through this exercise more than two-dozen times, I've yet to be.


----------



## MichaelSullivan

Russ said:


> Well there are different ways to go at it, but I am pleased it worked for you.
> 
> For instance, one can get the offers in for the audio rights so you know a real market figure for the value, and when your agent receives an offer for the book they can then go back to the publisher and say "that is reasonable for the book but we want $X more for the audio rights."  Then they can either match it or go without.  Works just as well because you are still only giving  up the 15% to your agent.



Do you think I don't know that?  Seriously?  Think about what you are saying.  

I'm supposed to go to the audio producer and say, "Thanks for the offer, but I'm not going to accept it, instead I'm going to try and use it as leverage, but hey, if it doesn't work, sure I'll come back to you."  Why would I put in jeopardy a perfectly good relationship on the CHANCE that it might help out a partner whose arm I have to twist into "doing the right thing?"  And let's say it works.  And they increase the offer by the same amount as the audio producers...they still are going to want their cut royalty cut- so I still get 50 cents on the dollar.  MAYBE if I'm lucky I can up that to 60 cents on the dollar or 70 cents on the dollar - but why?  Seems to me $1 on the $1 is a much better deal.  Any deal signed with the publisher isn't just out the 15% agency fee. Your assumption only holds if the books DON'T earn out. If they do (and so far all of mine have) then I'm leaving money on the table with your approach.

Oh, and if the deal DOES fall through, I go back the audio producer and say, "Yeah, it didn't work out...So I'll take that offer you made me."  If I were them I'd say, "That deal is no longer on the table, you wanker." And I would have no one to blame but myself.


----------



## Russ

MichaelSullivan said:


> Hmmm...I've signed 5 six-figure contracts (one for more than half a million), three of which were with two different big-five presses. I've signed more than 50 foreign language contracts.  I've also compared contracts with several dozen fellow big-five published authors.  My agent is one of the biggest names in the industry and not only represents me but also Brandon Sanderson, Peter V. Brett, Jack Campbell, Charlaine Harris and dozens of others. When I discuss with him where he can and cannot move the needle is he lying to me?  What about the conference calls I've had with multiple agents and IP attorneys?  When I ask them, "Have you ever seen a contract with anything other than 25% of net?" and they say...."not yet, but I think it's only a matter of time." Are they lying?
> 
> I'm not speaking from "theory" - I'm speaking from hands-on experience.  But I'm not here to convince you of anything. All I can do is share my experience and those of others - who ARE ACTUALLY SIGNED!  I suspect you are reporting "what you've heard"  or talking about small-press contracts - which are a whole different ball game. I don't have anything against small presses.  Heck, I've signed with two of them in the past.  But they don't move the needle of the author's published through them.  Today, if you are "in publishing" you have to be either (a) a successful self-published author or (b) with the big-five. I've done both and know people who have done both. The information I'm sharing isn't theory and conjecture it comes from real-world experience.
> 
> You can either listen or not. I really don't care. But I'm sure there are others who are reading this that may be getting something out of what I'm saying.



I met Joshua years ago at Ad Astra, thought he was a great guy and I suspect you get very good representation from him.  I think he would be fun to work with as well.

But I am not talking from theory or what I have heard. I am talking about contracts I have seen, or information I have gotten directly from the author, agents or editors involved in  the deal.  I try not to do the hearsay thing.

I am happy to do the name dropping thing off line if you are curious where I get my information.  I just think it is bad taste to do it in public.

Pity that all the big names in the industry did not stand by their pledge.  Are you part of the pledge and do you plan to honour it?


----------



## FifthView

I feel like I'm listening to Marie Antoinette debating whether to negotiate for cake or mousse tart.


----------



## MichaelSullivan

Russ said:


> Funny, the Author's Guild initiative you have talked about has made this issue one of their big points. If you are a member perhaps you should suggest they rethink their approach.



I think you are very confused. Both myself and The Author's Guide want to eliminate non-competes (and a whole bunch of other clauses that are bad for the author). Their position is that they are *now* trying to fix contract issues that I've been railing against for the past eight years. Why would I want to tell them to "rethink their approach" when they are finally coming around to my way of thinking?

My complaint with the Author's Guild isn't what they are doing now - it's that they should have been doing it sooner.


----------



## Russ

MichaelSullivan said:


> Do you think I don't know that?  Seriously?  Think about what you are saying.



It was for the purpose of the wider discussion so that people can see that things are sometimes done differently and that there is no "one true way."

You might want to relax a little.



> I'm supposed to go to the audio producer and say, "Thanks for the offer, but I'm not going to accept it, instead I'm going to try and use it as leverage, but hey, if it doesn't work, sure I'll come back to you."  Why would I put in jeopardy a perfectly good relationship on the CHANCE that it might help out a partner whose arm I have to twist into "doing the right thing?"  And let's say it works.  And they increase the offer by the same amount as the audio producers...they still are going to want their cut royalty cut- so I still get 50 cents on the dollar.  MAYBE if I'm lucky I can up that to 60 cents on the dollar or 70 cents on the dollar - but why?  Seems to me $1 on the $1 is a much better deal.  Any deal signed with the publisher isn't just out the 15% agency fee. Your assumption only holds if the books DON'T earn out. If they do (and so far all of mine have) then I'm leaving money on the table with your approach.
> 
> Oh, and if the deal DOES fall through, I go back the audio producer and say, "Yeah, it didn't work out...So I'll take that offer you made me."  If I were them I'd say, "That deal is no longer on the table, you wanker." And I would have no one to blame but myself.



First of all it does happen that way and it seems the big audio companies really don't mind.

And your analysis works if you assume you are going to earn out and you don't need/want the money now.

Let's say, hypothetically, you are a debut author, or even a non-branded author and you realize that if you don't  do well on your first book or two than you won't be signing any more contracts.  In that case you might well decide that you prefer the larger advance so that you can use that money for marketing to make sure your first book or two make a big enough splash so that you get to contract #2.

So in some circumstances the higher advance that it can entail can make a substantial difference for the non-branded author staying in the game.  

You cannot simply assume people selling their rights are in a similar circumstance to you.


----------



## Russ

FifthView said:


> I feel like I'm listening to Marie Antoinette debating whether to negotiate for cake or mousse tart.



Sacher torte and salzburger nochrel or bust...


----------



## MichaelSullivan

Russ said:


> In the area of naivety let me suggest that my father worked his whole career in publishing, I worked in publishing before becoming a lawyer, my wife works in publishing and a significant portion of the people I spend time with are in the industry.



With what companies?  In what capacities.  As I said, I'm talking about big-five contracts.  Prove me wrong. Print out the contracts you have access to, black out the author's names and the advance amounts, take a picture,  and email them to me. I'd love to be proved wrong, but haven't yet.  Many, many people have taken me up on that offer, and I've yet to find any that refute what I've put fourth. 



Russ said:


> Despite the fact that you know Kamerson personally, there are reasons that her top advance was what, $20k, and you have done deals much, much larger than that.  You are both authors, yes publishers have a great deal of power, and thus you are both cogs in the system, like almost any other job. But there are reasons that you have made significantly more than she has.  What do you think they are?



Hmmm...what could it be?  Let's see.


Kameron has only been published through small presses: Night Shade Press and Angry Robots. I've been published through big-five publishers: Orbit and Del Rey. That's probably the biggest factor...although there are plenty of big-five authors who have smaller advances than Kameron received.
Perhaps you have heard that women make 70 cents for every $1 a man makes?  Do you think pubilshing is immune to gender inequality?
Kameron has 5 books out I have 10 on the market and four more pending publication.
Based on Nielsen data, my first book sells six books for every one of Kameron's debut
I was self-published before traditional and already had a large fanbase - that has values to publishers, a debut author with no track record is a complete blank slate.
 My publishers knew I was already earning a good income, they had to at least match that or they would have no chance.

My debut had a much larger advance than Brandon Sanderson's - but he earns much more than I do - I wonder why that is? He (a) writes more than I do (b) has a large fan base (c) sells more copies.

But you know what...besides advance, and a few minor points, already discussed, Brandon's contract is remarkably similar to mine.


----------



## MichaelSullivan

Russ said:


> I met Joshua years ago at Ad Astra, thought he was a great guy and I suspect you get very good representation from him.  I think he would be fun to work with as well.



I think Joshua does better than most - but as I said, even he can't get them to budge on the truly important issues.



Russ said:


> But I am not talking from theory or what I have heard. I am talking about contracts I have seen,



As I said, redact the information and share it privately. I'd LOVE to be proven wrong.




Russ said:


> For information I have gotten directly from the author, agents or editors involved in  the deal.  I try not to do the hearsay thing.



You can't go by what they say, you can only trust what the contract reads. As I already mentioned...authors "think" they don't have non-competes and then they find out they do.  And in fact, in a reddit discussion on this topic, Kameron mentioned that she and her agent reviewed the contract again recently and found a whole bunch of things that BOTH of them missed at signing.  So there is a big difference between what they "think" the contract says, and what it "actually" says.  Don't trust "conversations" as they may be based on assumptions that turn out not to be true. The only thing that matters is what is in the contract. And I feel like a broken record, show me and prove me wrong.


Russ said:


> I am happy to do the name dropping thing off line if you are curious where I get my information.  I just think it is bad taste to do it in public.



I'm happy to continue the conversation in private. The more data points I have, the better.



> Pity that all the big names in the industry did not stand by their pledge.  Are you part of the pledge and do you plan to honour it?



Me? Lol - no I was not one of the people I discussed - my sales are FAR too low to run with that crowd. I'm not even a blip to the like of them. And to be clear it wasn't "all the big names" it was a few of the biggest names. Would I honor such a pledge?  I would never sign-up for such a pledge because I know it's not possible to honor. They were naive to think they could change the system - although I did applaud the attempt. 

My approach is much different.  As I know I can't get them to adjust the royalty rates, I self-publish some titles. That way I get the higher royalty rates on the self-published books and that helps to offset the low-royalty rates on the traditionally published books.


----------



## MichaelSullivan

FifthView said:


> I feel like I'm listening to Marie Antoinette debating whether to negotiate for cake or mousse tart.



Which is kinda my point.  The "negotiable things" of the contract - are those that really don't matter. The TRULY important issues are the ones that you aren't going to change - and the ones that make the difference.


----------



## MichaelSullivan

Russ said:


> It was for the purpose of the wider discussion so that people can see that things are sometimes done differently and that there is no "one true way." You might want to relax a little.



There is certainly no "one true way" to publishing, (in other words the debates between self and traditional), but ask any agent (of any worth) and they'll tell you a right is ALWAYS better off in the author's hands than the publisher's.  




Russ said:


> First of all it does happen that way and it seems the big audio companies really don't mind.



Given what proof?  Sorry, I'm not going to take that as a truth because you said so.  Let me have a drink with the audio producer who was used in such a way and let's see if they "don't mind."  It could be that they had to "live with it" - but I can't imagine they are pleased.  I sure wouldn't be if I were in their shoes.




Russ said:


> And your analysis works if you assume you are going to earn out and you don't need/want the money now.
> 
> 
> 
> 
> 
> 
> No, not at all. I get the advance in either scenario...the only difference is whether the audio producer pays the advance or the main right's publisher pays the advance.  If I don't earn out the two scenarios are identical...except that I stiffed someone who made me an offer, and had to twist the arm of someone who wouldn't give me what I want.  But, if I DO earn out -- which will be twice as hard to do do now that I have to share the income with the publisher, then I'll make 50% less than if I had gone with the audio publisher in the first place.
> 
> 
> 
> Russ said:
> 
> 
> 
> Let's say, hypothetically, you are a debut author, or even a non-branded author and you realize that if you don't  do well on your first book or two than you won't be signing any more contracts.  In that case you might well decide that you prefer the larger advance so that you can use that money for marketing to make sure your first book or two make a big enough splash so that you get to contract #2.
> 
> 
> 
> 
> Well, first off, you've changed the scenario completely. We were discussing why "I" signed the audio rights first - and I'm neither a debut author or a "non-branded author" (whatever that is).  I never said that a debut author should do what I did and sign the audio rights first - because guess what....they are highly unlikely to have any audio offers.
> 
> But let's put that aside, and talk about the scenario you put forth....regarding someone who is (a) new and (b) likely to not earn out their advance. In THAT scenario, the author should hope for a small advance rather than a big one.  Why?  If you earn out a small advance, you will be seen as a success and WILL have a chance at a second contract.  But if you get a big advance AND don't earn out then you're career is pretty much over.  So, wanting a big advance in this scenario is a very short-term mindset.  A savvy author would want to walk, prove themselves, and then increase with each subsequent contract.  They wouldn't want to take the money and run...as it would be a career killer. Now, sometimes, you can't help that.  A big offer is made, you are excited, the publisher, is excited and all looks wonderful...and then the book flops.  That's not good for anyone concerne
> 
> 
> 
> Russ said:
> 
> 
> 
> So in some circumstances the higher advance that it can entail can make a substantial difference for the non-branded author staying in the game.
> 
> Click to expand...
> 
> 
> I'll respectfully disagree. For the author you described (one with marginal sales), a lower advance is MUCH more likely to keep them in the game then the large advance. I'm not the only one who thinks this, by the way.  Listen to Brandon Sanderon's BYU lectures that he records and posts online. He says exactly the same thing.
> 
> 
> 
> Russ said:
> 
> 
> 
> You cannot simply assume people selling their rights are in a similar circumstance to you.
> 
> Click to expand...
> 
> 
> I never made any claims to that effect. I didn't say, "Other authors should sell their audio rights first." I simply stated what I had done, and the reasons why it was a smart decision in MY case.  But...I will stand by my statement that EVERY author should attempt to keep as many of their rights in their control rather than signing them over as part of the contract. An author (and their agent) will almost always work those rights harder - and get better than the publisher who basically just sits on them until someone steps up to pay them for them.
> 
> Click to expand...
Click to expand...


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## psychotick

Hi,

Fascinating conversation guys, but for me it misses the more important questions. The two sets of clauses that would trouble me as an indie earning a modest income would be the non-competes and the options. Both have the potential to jeopardize my income stream. 

So my questions would be given that neither of these clauses is ever likely to be struck out of a contract completely, what's a reasonable compromise? What can authors negotiate to?

As far as non competes go, I'd obviously be interested in limiting the time period to either side of publication as much as possible. The figure of three months was mentioned and that sounded reasonable - unless I'm missing some fishhooks of course. I'd also, since I write in multiple genres, want to limit the non compete to the particular genre concerned with the book.

With options I think the only thing that would concern me again would be time frames. I don't want to have a publisher spending five years with each and every new book I write, deciding whether or not they want to exercise their option to publish. So again, how far is reasonable when it comes to negotiating limiting options?

The other thing - just a comment really - that seems to be playing out here is the question of advances. And my thought would be do they actually matter at all? I mean it's all very nice to say you've got an advance of x dollars etc. A little bit of an ego boost I suppose. But to my mind the important thing isn't the advance, but rather how the book sells. I know (or I've heard) that the majority of advances are never paid out, but I doubt those that aren't, miss their mark by much in most cases - publishers are more savy than that. Which means that most authors with contracts are going to get much the same money from their advances as they will from simply getting their royalty cheques. They simply have to wait.

Now I'm not a paranoid conspiracy nut (must remember to put the tin foil hat away!), but it seems to me that advances are being used as a tool to control authors. Sign away these rights and you'll get this advance. When the better approach might be to say keep your advance, pay me my royalties at the end etc, and I don't like these clauses so lets get the red pen out!

What are your thoughts?

Cheers, Greg.


----------



## Russ

psychotick said:


> Now I'm not a paranoid conspiracy nut (must remember to put the tin foil hat away!), but it seems to me that advances are being used as a tool to control authors. Sign away these rights and you'll get this advance. When the better approach might be to say keep your advance, pay me my royalties at the end etc, and I don't like these clauses so lets get the red pen out!
> 
> What are your thoughts?
> 
> Cheers, Greg.



Advances are guaranteed money, which to some people who are trying to make a living at writing is important.

It is also a sign that the publisher is willing to invest in you and bare a significant portion of the risk.  My good friend Steve Berry (MS has finally forced me to name drop  ) likes to say that publishing a book is a risky venture and that the risk is spread differently depending on how large the advance is.

Also a publisher has more reason to  help promote your book if your advance is large.  For the editor if a book that you put a small advance into flops it probably won't cost you your job.  Now if a book with a huge advance fails that can be a significant problem.  I wouldn't want to be the guy who bought Penny Marshall's book for Amazon for $800k.

So the belief is, the larger the advance the more the publisher will work to make your book a success because they want you to be a success.  It is better if their feet are close to the fire as well as yours.

Of course big sales are always an important factor but it is always good for someone else to have skin in the game with  you.

On the other end of the scale, for the very successful author, (as MS mentioned above) some of them are getting such huge advances for each book that it appears that it will almost be impossible for the advance to be earned out in the reasonable term.  Now the publishing industry rationale for this seems to be (without ignoring MS's theory on why they do it) is that they believe that they will eventually make the money back over a very long period (up to ten years some say) and that the big success of this book helps sell a great deal of your back list which makes up the difference.

One author I know in that circumstance just loves the huge advance because "it gets me my $X million up front and it's someone else's problem if it earns out or not."  His age and career development are also part of his consideration.


----------



## Russ

MichaelSullivan said:


> I'll respectfully disagree. For the author you described (one with marginal sales), a lower advance is MUCH more likely to keep them in the game then the large advance. I'm not the only one who thinks this, by the way.  Listen to Brandon Sanderon's BYU lectures that he records and posts online. He says exactly the same thing.



With equal respect the information I am getting is that this model, where a low advance is believed to keep you in the game longer might be out of date.

It seems that publishers are being harder on the mid list than ever, and the model where they would nurture a not-yet-profitable author's career along is pretty dead (amongst the bigger publishers anyways).  The second factor is that with self-publishing and so many small publishers around that there is a lot more "noise" to get through to get to the consumer.

This has to led to the situation where it now appears that it is very important to break out quickly and have substantial success with your earlier books than ever before.  Based on the current stats you need to become a lot of people's favourite or favoured author in a hurry if you want lasting commercial success.

Thus the advice we (my wife and I) have received from a large number of industry people (including authors, agents and editors) is that a substantial investment in promoting your book out of the gate is important to your career because if you have two books (for instance) with mediocre sales you are likely not getting another contract. The amount of egg on an editor's face for championing the failed book might well vary because of the advance size, or you might have a slightly better chance to not get dropped because they can't be bothered to drop you but is that really how you want your career to go?

For an author today something in the order of a quarter of your sales will come from author marketing.  I don't think the new author can afford to ignore that. 

Or to put it more simply, using more funds for proper promotion increases your author brand equity which is critical to career success.


----------



## MichaelSullivan

psychotick said:


> Fascinating conversation guys, but for me it misses the more important questions. The two sets of clauses that would trouble me as an indie earning a modest income would be the non-competes and the options. Both have the potential to jeopardize my income stream.



To be honest, I have no problem with option clauses. As long as it is properly written.  Really all you are signing up to is showing a book to your partner first and I would do that anyway.  The non-compete of course IS an issue.



psychotick said:


> So my questions would be given that neither of these clauses is ever likely to be struck out of a contract completely, what's a reasonable compromise? What can authors negotiate to?



I think the following are important about the non-compete:

They should never extend across the "term of the contract" - as the contract tems are likely to be forever (life of copyright).
They should only be limited to times when the publisher's books are rolling out.
They should clearly state what type of a book is deemed as "competing"
They should only exist around very narrow windows of the publisher's release.
They should only be for full-length novels.

So for me, a reasonable non-compete would be.



> The author shall not publish any full-length fantasy novel using the same author name of the books under this contract during a 4-month period (2 months before and 2 months after the planned released for any book in this contract) otherwise referred to as a period of exclusivity.  In the event the publisher releases their books in quick succession, such that no window for publishing other words by the author is possible.  The author and publisher will agree on four months during which the author will not release other titles.



This noncompete does several things.

Doesn't restrict the author from releasing short stories
Doesn't restrict the author from releasing non-fiction books
Doesn't restrict the author from releasing non-fantasy books
Doesn't restrict the author from releaing books under a pen name
Doesn't allow the publisher to extend their "window of exclusivity" by staging the release of the books at a 2 month internal which, could lock an author out of releases for extended periods of time in a multiple book contract.

As for option clauses.  The important points are.

There is no "locking in" terms from a previous contract - for instance the option clause shouldn't say something like - if the option is exercised, it will be under the same terms of this contract.  If an author is doing better - the should get better terms in the future.
It shouldn't allow the publisher to "rights grab" additional rights. If you fought to hold back audio - you shouldn't have to fight that battle again.
It should allow the author to submit either the work itself, or a detailed proposal.
The time periods have to be specific - no wording like "reasonable amount of time" - make it say xx days.
It has to be short-lived in other words the publisher has 4 - 6 weeks to read the book and another small amount of time for the two parties to negotiate exclusively.
It should be limited to just one book - and be specific to the genre the other books are - they shouldn't, for example, be able and not for all other books the writer creates. 
It should not have a "grab back" clause - such that they can get the contract simply by matching the terms of another publisher -- after all if yo are moving because you aren't happy with your publisher, you don't want to be forced to stay. 
Many option clauses will say something like, they don't have to consider the option until after publication of the last book - but this could lock out the author for a really long time - remember the author doesn't control publication dates. It's best to have no restriction of this type, or if one is insisted upon - then tie it to the Submission of the book which the author DOES have control over
The option should allow for both self-publishing or selling to a different publisher

A reasonable option clause would look like this:



> The Author grants the Publisher the exclusive option to acquire the same rights as have been granted in this Agreement to the next full-length work of fantasy written by the Author. The Publisher shall have a period of sixty (60) days after submission of a detailed proposal for such next work in which to make an offer for that work, during which time the Proprietor agrees not to solicit any third party offers, directly or indirectly. If the Publisher wishes to acquire such next work, the Author and the Publisher will attempt to reach an agreement as to terms during a thirty (30) day period of exclusive negotiation. If they cannot reach an agreement, the Author shall be free to submit such next work elsewhere or self-publish such work.





psychotick said:


> As far as non competes go, I'd obviously be interested in limiting the time period to either side of publication as much as possible. The figure of three months was mentioned and that sounded reasonable - unless I'm missing some fishhooks of course. I'd also, since I write in multiple genres, want to limit the non compete to the particular genre concerned with the book.



Three months is what I've had in the past - but I think it's worth trying to push for two.  Two months is (in general) the time period when they are pushing an author's book and so it should be only when they are actively marketing that the freeze out should occur.  Limiting to a particular genre isn't a problem.



psychotick said:


> With options I think the only thing that would concern me again would be time frames. I don't want to have a publisher spending five years with each and every new book I write, deciding whether or not they want to exercise their option to publish. So again, how far is reasonable when it comes to negotiating limiting options?



The time periods I listed above are the same as I have in my contracts, and I think they are reasonable to both parties.  



psychotick said:


> The other thing - just a comment really - that seems to be playing out here is the question of advances. And my thought would be do they actually matter at all? I mean it's all very nice to say you've got an advance of x dollars etc. A little bit of an ego boost I suppose. But to my mind the important thing isn't the advance, but rather how the book sells. I know (or I've heard) that the majority of advances are never paid out, but I doubt those that aren't, miss their mark by much in most cases - publishers are more savy than that. Which means that most authors with contracts are going to get much the same money from their advances as they will from simply getting their royalty cheques. They simply have to wait.



Advances are important for a number of reasons.  A book with a higher advance gets more marketing and sales support - period. A small advance may bet none.  But, as I stated elsewhere - if you get a big advance and the book sales are bad, then it's looked upon as a failure, where a book with a modest or small advance that does earn out would be seen as a success. 



psychotick said:


> I know (or I've heard) that the majority of advances are never paid out, but I doubt those that aren't, miss their mark by much in most cases - publishers are more savy than that. Which means that most authors with contracts are going to get much the same money from their advances as they will from simply getting their royalty cheques. They simply have to wait.



I think  you may have misspoke. Advances ARE always paid out (unless the author doesn't deliver the book or the author and editor can't agree on edits).  I think what you were meaning to say is that most authors don't earn out such that the advance is the only thing they receive and as such they don't get any "additional royalties." This is true - but money "sooner" is always better than "money later."




psychotick said:


> Now I'm not a paranoid conspiracy nut (must remember to put the tin foil hat away!), but it seems to me that advances are being used as a tool to control authors. Sign away these rights and you'll get this advance. When the better approach might be to say keep your advance, pay me my royalties at the end



Since you have to sign away the rights anyway - might as well do so and get paid for them up front, yes? A case could be made for, "Keep your advance in exchange for a larger royalty."  I'd sure go for that - but to say "Keep your advance and pay me as the book earns" is a REALLY bad idea. What if the book doesn't earn?  Then you've lost money that would otherwise be in your pocket.



psychotick said:


> and I don't like these clauses so lets get the red pen out! What are your thoughts?



If only it were that easy. As I said, some things are easy to get adjusted...other things not so much.


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## MichaelSullivan

Russ said:


> It seems that publishers are being harder on the mid list than ever, and the model where they would nurture a not-yet-profitable author's career along is pretty dead (amongst the bigger publishers anyways).



Which is exactly why a "modest advance" is better for an author who isn't going to have gangbuster sales. By definition if the advance is low the author book's is more likely to be profitable.  It's when the advance is large and the sales are modest that the author is in the most jeopordy.

You seem to be putting fourth that a book will be successful if only an author spends a lot on marketing. Having run an advertising firm for over a decade, I can tell you that throwing money at something isn't the answer.  What makes a book successful is word-of-mouth.  People loving the book so much that they tell their friends and family about it.  Now, you do need to get the ball rolling by getting it in the hands of a few people to start off - but there are MUCH better ways of doing that then spending money on ads.  Ads are for those with a lot of money, and if you have a limited budget, and can only advertise a little - you don't break through.  Big campaigns can work - but small ones are more likely than not to have negative ROI's. 



Russ said:


> This has to led to the situation where it now appears that it is very important to break out quickly and have substantial success with your earlier books than ever before.  Based on the current stats you need to become a lot of people's favourite or favoured author in a hurry if you want lasting commercial success.



There is no doubt that in traditional publishing you have to come "out of the gate" fast and furious -- your entire book's success is likely to be determined in the first few month's sales.  That's one of the good things about self-publishing. You aren't on bookstore shelves, so you don't have to worry about having x sales or being pushed off them.  The self-publishing model is much more conducive to modest sales over long period to times, whereas traditional publishing requires high sales on day one.



Russ said:


> For an author today something in the order of a quarter of your sales will come from author marketing.  I don't think the new author can afford to ignore that. Or to put it more simply, using more funds for proper promotion increases your author brand equity which is critical to career success.



I totally agree that an author has to be responsible for growing their audience - but totally disagree that you should take your big advance and *spend* it on promotion. That money is to compensate you for the work you've performed, and there are plenty of ways to promote that don't cost a dime.  I'm not going to drop $5,000 on a goodreads ad for my book - that's part of my publisher's responsibility.  The way I see it....

The Author's responsibility it to: write, be interactive with readers, go to events that the publisher pays for, and meet their deadline requirements.  The publisher's responsibility is to pay advances, make sure the book has wide distribution, utilize their sales force, use their contacts to get the book noticed, pay for any out of pocket expenses: cover design, editing, AND advertising that costs money. 

The author and publisher are dividing the profits of the books - and the publisher is getting that lion's share - so THEY need to pay for the things that cost money - if not...then you might as well self-publish and keep all the profit yourself.  The author is already getting shafted by the system through a disproportionate share of the pie given the time and effort spent. To suggest that they dig them selves in even deeper by PAYING for promotion is not something I can get behind.  Again, I'm not saying that an author shouldn't market themselves - but if you spend your advance to market your books - what are you going to live off of?


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## psychotick

Hi,

Thanks guys. 

I still think advances are a way for publishers to leverage unfavourable contractual clauses on authors for little money. Consider the newbie getting his first contract for say five or ten k - seeing the zeroes and thinking - "This is it!". And then he reads the contract, thinks ok, they're going to prevent me writing another book for a year - but it's ten k. And he doesn't consider the fact that he was probably going to get that ten k further down the line anyway.

And you guys are arguing about the size of the advances and what a bigger or smaller advance means to the publisher in terms of how hard they'll work for you. My thought is that it means little to them. They've done their sums, decided what they're going to do to sell your book, and made a decision based largely on how much money they think they'll make on their investment on your book. They were going to do the same thing anyway.

Much as I hate to say it I think you guys are looking at this like naive women thinking - he brought me flowers and chocolates, he really must care for me. When really he did the sums, said flowers and chocolates equals sex and it's cheaper than a hooker - deal!

Just my opinion of course. But when you look at power relationships you need to look at both sides of the relationship and consider not just what each side gives and takes, but what the cost to them for that giving and taking is. And for the publisher, paying upfront is probably a fairly low cost to them to give. For the publisher, even if an author doesn't earn out (yeah not pay out!) I suspect they still make money in most cases - so they haven't really lost anything by doing it (extra profits maybe) and they've gained control in the contract.

As for the author in taking the advance, your friends sitting there thinking "Wow it's done, I don't have to worry about anything any more", has got probably the best motivation for taking the advance that there is. The others thinking I should take it because maybe it won't sell and that'll be all the money I get has the worst. You're supposed to have faith in your own work. And maybe that means simply sitting there and saying to yourself - It'll damned well sell - I don't need to prostitute myself to get the money in advance.

I agree though that maybe not taking the advance isn't going to be a powerful weapon in your contract negotiation arsenal. It just blunts one of theirs. (Now where'd I put my damned tin foil hat!)

Cheers, Greg.


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## Russ

psychotick said:


> Hi,
> 
> Thanks guys.
> 
> I still think advances are a way for publishers to leverage unfavourable contractual clauses on authors for little money. Consider the newbie getting his first contract for say five or ten k - seeing the zeroes and thinking - "This is it!". And then he reads the contract, thinks ok, they're going to prevent me writing another book for a year - but it's ten k. And he doesn't consider the fact that he was probably going to get that ten k further down the line anyway.
> 
> And you guys are arguing about the size of the advances and what a bigger or smaller advance means to the publisher in terms of how hard they'll work for you. My thought is that it means little to them. They've done their sums, decided what they're going to do to sell your book, and made a decision based largely on how much money they think they'll make on their investment on your book. They were going to do the same thing anyway.
> 
> Much as I hate to say it I think you guys are looking at this like naive women thinking - he brought me flowers and chocolates, he really must care for me. When really he did the sums, said flowers and chocolates equals sex and it's cheaper than a hooker - deal!
> 
> Just my opinion of course. But when you look at power relationships you need to look at both sides of the relationship and consider not just what each side gives and takes, but what the cost to them for that giving and taking is. And for the publisher, paying upfront is probably a fairly low cost to them to give. For the publisher, even if an author doesn't earn out (yeah not pay out!) I suspect they still make money in most cases - so they haven't really lost anything by doing it (extra profits maybe) and they've gained control in the contract.
> 
> As for the author in taking the advance, your friends sitting there thinking "Wow it's done, I don't have to worry about anything any more", has got probably the best motivation for taking the advance that there is. The others thinking I should take it because maybe it won't sell and that'll be all the money I get has the worst. You're supposed to have faith in your own work. And maybe that means simply sitting there and saying to yourself - It'll damned well sell - I don't need to prostitute myself to get the money in advance.
> 
> I agree though that maybe not taking the advance isn't going to be a powerful weapon in your contract negotiation arsenal. It just blunts one of theirs. (Now where'd I put my damned tin foil hat!)
> 
> Cheers, Greg.



There are plenty of small presses out there willing to buy your book on a royalties only basis.  Problem is, most of them can't get you into bookstores which limits your potential sales significantly.  The question then becomes for you an economic one, do the better terms you can get out of a smaller press more valuable than the advantages of publishing with a larger publisher.  I have friends with royalty only contracts, they all want or wanted advances but have not been able to get them.

Many people think the first time author should be using most if not all of the advance to promote their book.  No advance means the promotion you are going to do is now either going to have to be free, or come out of your own pocket.

If you are working at a publisher and you have two books you think are similar in quality and a limited promotion budget, are you going to spend your promotion budget on the one you have virtually nothing invested in, or the more expensive asset.  Basic economics tells you that you should spend more money on your more expensive asset than the cheaper one.

Let's say you are the in house publicist and you get a chance to get one of your authors on say a radio show.  Do you put on the one with a big advance or the one on a royalties only deal, all other things being equal?

I don't even have to go at it theoretically, editors I know have told me that is how they operate(d).  When my father worked for a major publisher, that is how they did business.  I don't think that logic has changed.

Some authors need the funds as soon as possible.  If you need the money to meet your needs the equation changes.

But the way to satisfy yourself on this issue is this;  Get yourself some agent negotiated royalty only contracts, and get yourself some agent negotiated contracts with advances and compare the terms.  Then decide which you think is better for you.  Personally, I prefer an aggressively negotiated contract with a solid advance for almost any author.  But I don't think for either MS's or my analysis on this that love has anything to do with it.


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## MichaelSullivan

psychotick. I think what you have to keep in mind is that self-publishign isn't for everyone.  Some people don't want to be both author and publisher, and they are more than willing to give up a big part of the sals to have the publisher take care of all the "publisher things."

Also, there are a number of authors that really can't produce a high-quality book on their own.  They may need substantial structural editing, and may have no clue (or desire to learn) how to find and hire qualified people for editing and cover design. Since they CAN'T put out a book on their own - traditional is really the only way for them to go.  Will they have to pay a price?  Sure. But not all lawyers open their own firms - some are quite happy working in other law offices.  Same thing.


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## MichaelSullivan

Russ said:


> Many people think the first time author should be using most if not all of the advance to promote their book.  No advance means the promotion you are going to do is now either going to have to be free, or come out of your own pocket.



I'm really surprised to hear you say that - as none of the authors I know have ever mentioned anything like that. I'm not saying it's not so, just not something I've ever run across. And as I already said, I think it is a really bad idea. This is one of those things that' we'll just have to disagree about.


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## psychotick

Hi,

MS, I know self pubbing isn't for everyone, hence the reason we're talking about trade deals. But this isn't about indie versus trade - it's about how big the barrel is that the trade publishers will put you over.

Russ, no one who takes a trade deal should be paying a single red cent for advertising, promotion, editing, cover design or any of that other stuff. That's the stuff you're giving up your rights and a chunk of your royalties to have someone else do. What you're suggesting is getting a dog and then barking yourself as they say.

Cheers, Greg.


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## Russ

> I'm really surprised to hear you say that - as none of the authors I know have ever mentioned anything like that. I'm not saying it's not so, just not something I've ever run across. And as I already said, I think it is a really bad idea. This is one of those things that' we'll just have to disagree about.





> Russ, no one who takes a trade deal should be paying a single red cent for advertising, promotion, editing, cover design or any of that other stuff. That's the stuff you're giving up your rights and a chunk of your royalties to have someone else do. What you're suggesting is getting a dog and then barking yourself as they say.



The way publishing works is changing.  There are two ways of looking at being an author these days, you can think like an employee, or you can think about it like being your own business.  The current environment, with publishers being shall we say inconsistent on how they promote books and less positive in developing young authors means more of it falls back into your hands.

Once again, if you need the money to eat you don't have the choice.

But if you do there are reasons to spending your own money on advertising and promotion.  

You don't get a second chance to make a first impression.  Today more than ever breaking through the noise is harder and you need to do it.  Your publisher may simply not be willing to do it for you.

It also gives you much more control over your own career and success.  If you don't take a strong hand in your own marketing you are giving over almost all of the control of  your career success to other people and that might not be the best strategy.

Also outside PR people and marketers don't have access to many of the resources outside people do, or may not allocate them to newer authors.  If they get a slot on NYC radio is it going to a new author or someone else?  Can they even get you a slot on top radio and TV shows, and if they get those slots they are not likely going to the new guy in the house.

Sometimes publishers will pay for a part of your outside marketer or PR person, but they are less likely to do so for the new author.  After the plan works they will often pay for half and eventually all of the outside firm's work.

MJRose, a successful author and who runs Authorbuzz put it this way:



> I left advertising to write fiction. Only to find out that to stay alive as an author I had to get back into the ad business. I got into publishing just when it was becoming evident that authors who are marketing partners with their publishers have a better chance of a happy, healthy career. As one friend said, it's like I finally became a Russian Princess on the eve of the revolution and I think it’s an apt description



If I buy a guard dog for home defense that is great, but it doesn't mean an investment in an alarm system and a shotgun are a bad idea.  

Many of the people you see talking about their books on TV or on radio got there through their own PR people.  Many of the people you see currently dominating the bestseller lists in both NA and the UK got there by using independent PR people.

You may think they are unwise, but many of the world's most successful authors have done it and are doing it.


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## MichaelSullivan

psychotick said:


> Hi, MS, I know self pubbing isn't for everyone, hence the reason we're talking about trade deals. But this isn't about indie versus trade - it's about how big the barrel is that the trade publishers will put you over.



Well, the barrel is indeed pretty big. But's the price that has to be paid. Even so, my traditional publishing has done wonders for my career and I don't regret a single contract I've signed. There's A LOT to be said for the hybrid model.



psychotick said:


> Russ, no one who takes a trade deal should be paying a single red cent for advertising, promotion, editing, cover design or any of that other stuff. That's the stuff you're giving up your rights and a chunk of your royalties to have someone else do. What you're suggesting is getting a dog and then barking yourself as they say.



I'm in your camp.  I can see what Russ is saying, if you spend your advance, you improve your chances of success. But, to me, when you go self - you foot the bills and collect 100% profit.  When you go traditional -- they pay the bills out of their cut of the pie.


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## MichaelSullivan

Russ said:


> Also outside PR people and marketers don't have access to many of the resources outside people do, or may not allocate them to newer authors. If they get a slot on NYC radio is it going to a new author or someone else? Can they even get you a slot on top radio and TV shows, and if they get those slots they are not likely going to the new guy in the house.



If you write a political book and get a spot on The Daily Show or sit with Colbert and chat - that is going to get you sales.  But if you write fantasy (a very niche market) and show up on a drive-time radio show, my guess is you'll see no noticeable difference in sales. Joe Konrath speaks about this a lot. Even after being featured in very targeted magazine's for Thriller readers, he didn't see his sales change. You'd be much better off using your money for a giveaway on Goodreads then paying a PR person to try to get you "booked" on a show whose only result be a boost to your ego.  For me, I'd rather have more people reading my books then to be on someone's show.


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## Russ

MichaelSullivan said:


> If you write a political book and get a spot on The Daily Show or sit with Colbert and chat - that is going to get you sales.  But if you write fantasy (a very niche market) and show up on a drive-time radio show, my guess is you'll see no noticeable difference in sales. Joe Konrath speaks about this a lot. Even after being featured in very targeted magazine's for Thriller readers, he didn't see his sales change. You'd be much better off using your money for a giveaway on Goodreads then paying a PR person to try to get you "booked" on a show whose only result be a boost to your ego.  For me, I'd rather have more people reading my books then to be on someone's show.



I am not Joe's biggest fan, and I would suggest respectfully to Joe that the data available about the impact of being in targeted magazines contradict's Joe's comments, particularly for the Thriller genre.

I tried to drop you a PM with some info you might find interesting, but it appears your inbox is full.


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## MichaelSullivan

Russ said:


> I tried to drop you a PM with some info you might find interesting, but it appears your inbox is full.



Sorry about that. I flushed my inbox.  You should be able to send it now.


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## Mythopoet

Honestly, Russ is just one of those people who is completely entrenched in the traditional publishing worldview, as Kristine Kathryn Rusch talked about recently on her blog, and arguing with him is useless.


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## T.Allen.Smith

Mythopoet said:


> Honestly, Russ is just one of those people who is completely entrenched in the traditional publishing worldview, as Kristine Kathryn Rusch talked about recently on her blog, and arguing with him is useless.


If you want to add something relevant to the discussion, please do so. 

Rebutting an assertion is one thing. Attacking another member as "entrenched" or implying they're not only wrong, but also intractable, is another. 

Please return the discussion solely to the topic at hand & refrain from taking any further jabs.


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## Mythopoet

T.Allen.Smith said:


> If you want to add something relevant to the discussion, please do so.
> 
> Rebutting an assertion is one thing. Attacking another member as "entrenched" or implying they're not only wrong, but also intractable, is another.
> 
> Please return the discussion solely to the topic at hand & refrain from taking any further jabs.



My assertion was based on past experience on this very forum and was made with the intention of perhaps saving poor Mr. Sullivan, who is no doubt a busy man, some time. It was not irrelevant nor was it an attack. Heaven forbid anyone actually form an opinion about someone based on their many, many posts.


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## T.Allen.Smith

Mythopoet said:


> My assertion was based on past experience on this very forum and was made with the intention of perhaps saving poor Mr. Sullivan, who is no doubt a busy man, some time. It was not irrelevant nor was it an attack. Heaven forbid anyone actually form an opinion about someone based on their many, many posts.



Negative opinions regarding another member are _ALWAYS_ irrelevant to the topic, and they're never okay for discussion on Mythic Scribes.  

Whenever you call someone out in the manner you did here, it is most certainly an attack. This is not my perception alone. Several members of the moderation team concurred. As you well know, personal attacks are forbidden on this site.   

Michael Sullivan is more than capable of handling himself, I'm sure. He doesn't need you to interfere on his behalf.   

If you wish to continue this discussion through PM with a member of the moderation team, you're welcome to do so. Otherwise, please return to the on topic discussion.  
Thank you.


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## MichaelSullivan

Mythopoet said:


> Honestly, Russ is just one of those people who is completely entrenched in the traditional publishing worldview, as Kristine Kathryn Rusch talked about recently on her blog, and arguing with him is useless.



I think both Russ and I have had substantial experience and I welcome his comments,even if they do differ from my own.  It's good for people to see several perspectives. The one thing about publishing, is almost everyone's experience is different. Levels of success vary wildly and in some cases how one author is treated by publishers is different than another's. I think the difference is I'm targeting my comments toward what I would consider a more mid-list author and he seems to have experience with either small presses or very large authors and so his comments are formed from a different sub-segment than my own.


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## AndrewLowe

This is quite possibly the most useful writing thread I've ever come across!  Thanks guys


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## MichaelSullivan

AndrewLowe said:


> This is quite possibly the most useful writing thread I've ever come across!  Thanks guys



You are very welcome.


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## Russ

MichaelSullivan said:


> I think both Russ and I have had substantial experience and I welcome his comments,even if they do differ from my own.  It's good for people to see several perspectives. The one thing about publishing, is almost everyone's experience is different. Levels of success vary wildly and in some cases how one author is treated by publishers is different than another's. I think the difference is I'm targeting my comments toward what I would consider a more mid-list author and he seems to have experience with either small presses or very large authors and so his comments are formed from a different sub-segment than my own.



I have learned a ton from MS's posts and plan to continue to do so.  His insights, especially where they differ from mine, have been invaluable to me.  We are lucky to have him posting on this site.


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## MichaelSullivan

Russ said:


> I have learned a ton from MS's posts and plan to continue to do so.  His insights, especially where they differ from mine, have been invaluable to me.  We are lucky to have him posting on this site.



Thanks Russ...it's always good to get insights from more than one source.


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