# Writers! Know your contracts!



## Mythopoet (Apr 8, 2016)

Career author Kristine Kathryn Rusch is producing an updated series of blog posts focusing on publishing contracts and deal-breaker clauses. This is incredibly important information to understand for every author no matter how you intend to publish. Two posts are available so far. She posts a new one every Thursday. 

Introduction
Contract Basics

I HIGHLY recommend everyone follow this blog series (and Rusch's Business Musings blog posts in general) if you intend to have a writing career.


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## Russ (Apr 8, 2016)

One should approach this lady's advice with great caution.

In both articles she gets some basic legal principles incorrect.  She says she is not a lawyer and she means it.  She gets fundamental concepts wrong both on the law of agency and the law of contract.  

There is other stuff she gets factually wrong, but that is really not important.  In these two pieces she gets some legal concepts wrong and if you were to believe her statements it could cost you.

Hopefully her future ones will get better.


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## Devor (Apr 8, 2016)

I only read through most of one of the articles, but I did notice something that's seriously wrong in her contract anecdote.  She talks about a convention which had offered to pay for her expenses if she appeared, then retracted the offer.  She says:



> I could have shown up at the convention and insisted on enforcement.



 ^ This is wrong.  She is obligated under the law to take reasonable steps to mitigate her damages.  The _absolute most_ that she could have demanded was any money lost in cancelling her travel reservations, if it was greater than $20.


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## Mythopoet (Apr 8, 2016)

Russ said:


> One should approach this lady's advice with great caution.
> 
> In both articles she gets some basic legal principles incorrect.  She says she is not a lawyer and she means it.  She gets fundamental concepts wrong both on the law of agency and the law of contract.
> 
> ...



Well, Devor actually pointed out something concrete. So if you are advising people to beware of her advice, shouldn't you point out exactly what was incorrect?



Devor said:


> I only read through most of one of the articles, but I did notice something that's seriously wrong in her contract anecdote.  She talks about a convention which had offered to pay for her expenses if she appeared, then retracted the offer.  She says:
> 
> 
> 
> ^ This is wrong.  She is obligated under the law to take reasonable steps to mitigate her damages.  The _absolute most_ that she could have demanded was any money lost in cancelling her travel reservations, if it was greater than $20.



Is this true everywhere or does it vary by state?


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## Devor (Apr 8, 2016)

Mythopoet said:


> Is this true everywhere or does it vary by state?



It's true everywhere in the U.S.  You have to show damages, and if those damages can be avoided (in this case with a phone call or an email), they don't count.  The potential for mostly frivolous lawsuits if this wasn't the case is extreme.  But I'm sure states vary as to what counts as a reasonable effort to mitigate damages.

I'm not a lawyer, but business law was a mandatory class for my major in college.


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## Garren Jacobsen (Apr 8, 2016)

These are not all the problems, I think, this is just what I found while skimmed through the article and those that popped out to me.



> Some states do not honor verbal agreements.



This is both correct and incorrect. All states accept oral contracts. However, they do limit what they do accept as part of an oral agreement under the Statute of Frauds.



> I print those emails and keep them as work product for any agreement that we come up with, or don’t come up with, as the case may be.



This could be problematic if one signs an actual contract. Because all of this evidence gathering will come to nothing because of the parol evidence rule.



> A short time later, I received a form email telling me that the organizers had overbooked the convention and they were no longer going to pay any of my expenses, even though they still wanted me to appear at the convention.



Other than what Devor said, the conference could make arguments for impracticability.



> Nothing happened, because the convention imploded shortly thereafter and will not be held.



This indicates that if a suit had been filed there was a frustration of purpose defense that could apply.

If you want to research this yourself you can probably go to a law library, maybe a regular library, and start by looking up Restatements and if you get lucky an A.L.R. A better option would be to try and engage in an exchange with a law professor that does contract law to get a more...accurate perception of the law. Or go to law school (don't do that). If I ever make it and have some degree of credibility in both the legal fields and writing fields I would like to write something to give writers an education in the areas of law that will impact them. But that would require a lot of work, time, and frustration that I would rather get paid for, lol. 

Seriously though, I would suggest you check every statement of hers with people that are lawyers or legal professionals. One more edit: as a general rule I wouldn't trust anything discussing a legal concept without citations to statutes, to case law, or to some other sources of law. The likelihood someone will get it incomplete is too high and too damaging.


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## Russ (Apr 11, 2016)

Mythopoet said:


> Well, Devor actually pointed out something concrete. So if you are advising people to beware of her advice, shouldn't you point out exactly what was incorrect?



I posted late on Friday afternoon just as I was getting ready to leave the office to meet my wife for dinner and didn't have time to post anything longer.  Devor was kind enough to point out one of the glaring errors, and then BSA has been kind enough to point out more.  If I had had more time I would have been quite happy to point out the errors more specifically, but I could literally type for pages about some of the errors in those two posts.  

There are indeed more significant legal errors in the links you posted, one of which is that it is clear that her understanding of the law of "agency" and how it applies to literary (or even other agents) is off the mark.  It is a complex area of law and she really should stay away from broad sweeping statements that are untrue in the vast majority of cases.

Your comment however, begs the question, if I "should" be more specific in my criticisms of the piece (which I am happy to do and more than capable of doing), what "should" you be doing before you "HIGHLY" recommend  her advice to all aspiring authors?


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## MichaelSullivan (Apr 20, 2016)

Anyone who knows me, knows how important and frustrating I find the subject of Writers and Contracts.  Mainly for many of the reasons pointed out in the article.

1. Writers don't read them.
2. They rely on agents to advise them without considering that the agents advice may be what is best for the agent rather than what is best for the author.
3. They are weighted in favor of the publishers.
4. Authors can blame themselves for signing a bad contract.

Are there things in my contract that I wish weren't there?  Sure.  Why did I sign? Because I feel the benefit I'm receiving outweighs the negative aspects. Have I been given contracts I can't sign?  Absolutely. There were plenty of times that I ran across "deal breakers" and I had to walk away.

I think the important points that we should keep focused on is authors need to (a) read (b) understand and (c) work through "worst case" scenarios and then, and only then, should they put pen to paper.


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## Mythopoet (Apr 22, 2016)

Russ said:


> Your comment however, begs the question, if I "should" be more specific in my criticisms of the piece (which I am happy to do and more than capable of doing), what "should" you be doing before you "HIGHLY" recommend  her advice to all aspiring authors?


Well, I have no experience at all with the legal profession so it would be impossible for me to know any errors she makes. I recommend her posts on the strength of her experience in the industry. She's not a legal professional and she says so. She pointedly tells authors all the time not to approach any contract without the assistance of a good IP lawyer. She isn't giving legal advice. She never says people should just take her word for it and not learn anything more. She's trying to make writers understand how important it is to pay attention to your contracts. I think that is a worthy goal, even if she does make some errors in detail here or there. 

For what it's worth, I know what her name is and have been reading her blog for years, long before coming to this forum. I have far more reason to trust her advice than I do pretty much anyone here. I can verify KKR's experience. It's very public. Furthermore, well regarded and currently practicing IP lawyer David Vandagriff of The Passive Voice blog reblogs and recommends her. I think that is more than enough reason to recommend her posts to writers. 

Naturally one should only take these as a jumping off point on the subject of contracts. As KKR admits, the subject is far too large and nuanced to do justice to in blog posts. Nor is she an expert. Every person's situation is different and every person should consult their own IP lawyer when pursuing a contract within the world of publishing.   

Here are the next two posts in the series:  Business Musings: Fair, Compromise, Clout, and Balls (Contracts/Dealbreakers)  Business Musings: Know Your Rights (Contracts/Dealbreakers)


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## Devor (Apr 22, 2016)

Okay, Mytho.

I can respect that there are people far more qualified to comment on this stuff than any of us here (with all due respect for the others).  But her comments on suing somebody over a cancelled appearance, that I mentioned above, are just . . . you could lose a lot of money, on pretty simple things that might even have nothing to do with publishing, following that comment.  She would have gone to court, presented her case, and the judge would immediately rule in her favor - for the amount of $1.  One dollar.  She would be out on her airfare, and her weekend, and the legal fees, and they might not even have to let her speak.  Because $1 is all you get when you can't show damages, or you can only show damages that you should have mitigated.

Like, it's glaringly bad advice to anybody who knows even a little about law.

I can admit that BSA pointed out some more nitpicky things.  I would like to have seen Russ point to something more specific.  But I did, and it's really bad - like I read it an said "Oh shit that's so wrong," and I'm not even much of a curser.  To me that disqualifies her outright to discuss legal matters, and honestly her stubborn how-horrible! reaction and her response to that whole anecdote made me doubt her judgement entirely.  And I only read about half of one post to find it.

Is this really what you want to go to the bat over, Mythopoet?  It just doesn't seem worth it.


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## Mythopoet (Apr 22, 2016)

I'm not sure what you mean. I'm not trying to go to bat over anything. I'm just posting links. You can do whatever you want with them. If you want to get in a huff over an anecdote that has problems with it and ignore the main message of the posts and everything else about KKR that recommends her then you're absolutely free to do so.

Just to clarify: I believe you guys that she is completely mistaken in what she says pertaining to that anecdote. I take your word for it. However, I don't believe that invalidates the larger message of these posts.


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## Russ (Apr 24, 2016)

Mythopoet said:


> I'm not sure what you mean. I'm not trying to go to bat over anything. I'm just posting links. You can do whatever you want with them. If you want to get in a huff over an anecdote that has problems with it and ignore the main message of the posts and everything else about KKR that recommends her then you're absolutely free to do so.
> 
> Just to clarify: I believe you guys that she is completely mistaken in what she says pertaining to that anecdote. I take your word for it. However, I don't believe that invalidates the larger message of these posts.



You did more than post a link, you highly recommended it.  You did so despite the fact that you don't have any subject matter expertise, nor, as I understand it, has the lady done any work for you or with you.

Her posts contains things stated as legal principles that are flat out wrong.  I could literally write about her errors for pages.

You should be more careful who you recommend.

Her overarching message of "You should be careful with contracts you sign and protect your rights diligently" does not take four blog posts to express.

But I guess she has to make a living somehow.


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## Mythopoet (Apr 24, 2016)

Russ said:


> You did more than post a link, you highly recommended it.  You did so despite the fact that you don't have any subject matter expertise, nor, as I understand it, has the lady done any work for you or with you.
> 
> Her posts contains things stated as legal principles that are flat out wrong.  I could literally write about her errors for pages.
> 
> ...



That is all very well for you to say. But I have literally no good reason to believe you, "Russ", without further explanation and evidence. 

For the record, she makes her living as a career author. The blog makes her nothing unless people choose to donate to her.


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## Russ (Apr 24, 2016)

Mythopoet said:


> That is all very well for you to say. But I have literally no good reason to believe you, "Russ", without further explanation and evidence.
> 
> For the record, she makes her living as a career author. The blog makes her nothing unless people choose to donate to her.



If I was to tell you all of my qualifications it would seem like bragging, which I find highly distasteful.

To give you an idea though, I have been litigating contract and agency cases for over 20 years and am well recognized for being good at it by my peers and the bench.

I am fully aware of her qualifications (and lack thereof) to discuss legal and contractual questions.  What I am curious about is what expertise you claim to have to recommend a blog about legal and contractual issues?  I suspect they are similar to my expertise in recommending articles on how to tune a high performance engine.


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## Reaver (Apr 24, 2016)

With respect and fairness to all, let's keep things civil. 

And yes, The Reaver is back.


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## Devor (Apr 24, 2016)

Thank you Reaver.

This could have been a productive discussion, but I think it's run its course.  I'm locking it.


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