• Welcome to the Fantasy Writing Forums. Register Now to join us.

Is Traditional Publishing an Increasingly Bad Deal?

Mythopoet

Auror
An author does not hand over all rights. And they do not hand over all rights for now and in perpetuity, and I guess it depends on what you consider piddling for an advance. It would be wrong to consider an advance is all that an author would earn, especially if it is piddling, as once it is earned out then the author earns royalties. And non-compete clauses can be negotiated, modified or removed, and every clause in a contract is important so buried is of a skewed term to use.

If you think these kinds of contracts don't exist and aren't becoming much more common all the time then you are kidding yourself. And many authors are talking about them. Kristie Kathryn Rusch was one of the main authors bringing these issues out into the open on her blog. If you read through her Business Rusch blog posts you'll see her talking about her experiences and the experiences of authors she knows and communicates with in many posts. A couple are here and here. Also in her Deal Breakers series of posts and others. I've seen a lot of writers with experience in traditional publishing discussing their experiences of bad contracts in the comments at The Passive Voice many times as well. (If you read the blog regularly, writers share their experiences with various aspects of the industry quite often. The comments are an education by themselves.)

I don't think I've ever seen anyone say that if you go with traditional publishing you are absolutely guaranteed to have a terrible contract that will ruin your career. But it is undeniable that the Big 5 particularly have been moving towards more and more draconian boilerplate contracts and have also been extremely resistant to negotiating things like ebook royalty rates, non-compete clauses and rights grabs for new or midlist authors who aren't proven to be profitable. And having an agent doesn't help. Most agents don't feel comfortable negotiating anything other than the advance and aren't really qualified to negotiate IP contracts anyway. If you know authors who were able to negotiate for legitimately good contracts, those authors should be thanking their lucky stars, because that is becoming less and less common these days.
 
I've only negotiated contracts with small publishers, and they're much easier to work with than what it sounds like you've experienced, Michael (of course, they're not offering anything remotely like the money your publishers offer). I've been able to get non-competes taken out entirely (non-compete clauses are presumptively invalid in California, though that doesn't do you much good in publishing since there are other jurisdictions that would likely enforce them).

Yes you are correct small publishers are much more willing to write a good contract. I have a contract with Tachyon Publications that is AMAZING and I didn't have to twist their arm at all...it was already a fair contract...just one of the reasons I signed so readily with them.

As for non-competes...you are correct they are illegal in CA...but here's a dirty secret. The ones in the New York contracts are just as illegal (both states have similar right-to-work legislation) - but that doesn't stop them from being put into the contracts. So yes, you can go to court and fight (after the fact) and you would win...but they are put in nonetheless. They are betting on the author (a) not knowing they are illegal and (b) not going to court to fight them.

I wonder whether the negotiating power of the big publishing houses is going to decrease over time, if indie publishing continues to rise, or whether traditional publishing will end up being even harder to crack, where you're only going to have authors who have proven they can sell a lot of books being pursued by the largest publishers.

For a long time I felt as you did...that publishers WOULD have to change as they are now competing against self-publishing. I've changed my stance. As someone else said, there are plenty willing to sign any contract (even bad ones) that by "walking" we aren't really impacting the business model. They can loose an author here or there, but there will still be plenty to take their places.
 
If you think these kinds of contracts don't exist and aren't becoming much more common all the time then you are kidding yourself. And many authors are talking about them. Kristie Kathryn Rusch was one of the main authors bringing these issues out into the open on her blog. If you read through her Business Rusch blog posts you'll see her talking about her experiences and the experiences of authors she knows and communicates with in many posts. A couple are here and here. Also in her Deal Breakers series of posts and others. I've seen a lot of writers with experience in traditional publishing discussing their experiences of bad contracts in the comments at The Passive Voice many times as well. (If you read the blog regularly, writers share their experiences with various aspects of the industry quite often. The comments are an education by themselves.)

Yes, you do have the correct picture...it may be that it's a matter of "press size" for big-five you are absolutely correct in your assessment...the "other authors" are likely from small presses.

I don't think I've ever seen anyone say that if you go with traditional publishing you are absolutely guaranteed to have a terrible contract that will ruin your career. But it is undeniable that the Big 5 particularly have been moving towards more and more draconian boilerplate contracts and have also been extremely resistant to negotiating things like ebook royalty rates, non-compete clauses and rights grabs for new or midlist authors who aren't proven to be profitable. And having an agent doesn't help. Most agents don't feel comfortable negotiating anything other than the advance and aren't really qualified to negotiate IP contracts anyway. If you know authors who were able to negotiate for legitimately good contracts, those authors should be thanking their lucky stars, because that is becoming less and less common these days.

When it comes to big-five contracts I don't think there is any "good terms" just terms you can "live with." And I agree that having the agent (or an IP lawyer for that matter) doesn't help. While in theory "everything is negotiable" the big-five walk lock-step on certain key points and they know there power is in NEVER backing down on those. If anything the agent hurts...as they expect certain things to be off the table...I had to put my agent's feet to the fire on non-compete that to me was an absolute deal breaker. But life-of-copyright and out-of-print thresholds there just isn't any wiggle room.
 

Jabrosky

Banned
If you think these kinds of contracts don't exist and aren't becoming much more common all the time then you are kidding yourself.
Sorry for veering the thread off-course and sounding like a moderator, but what's with snide comments like this? Like other posters, I've observed a tendency for you to attribute unfavorable motivations or foolishness to anyone who disagrees with you. I get that you're really passionate about topics like this, but must you always assume the worst about anyone who doesn't see things your way? This is bordering on uncivil.
 

Steerpike

Felis amatus
Moderator
Sorry for veering the thread off-course and sounding like a moderator, but what's with snide comments like this? Like other posters, I've observed a tendency for you to attribute unfavorable motivations or foolishness to anyone who disagrees with you. I get that you're really passionate about topics like this, but must you always assume the worst about anyone who doesn't see things your way? This is bordering on uncivil.

The people involved have already moved past that. Lets not escalate things by making a post about a person. Comments should be directed to the discussion and the arguments people are making and not focused on personalities. It looks like this thread has already leveled off, so lets keep it that way.
 

Mythopoet

Auror
Sorry for veering the thread off-course and sounding like a moderator, but what's with snide comments like this? Like other posters, I've observed a tendency for you to attribute unfavorable motivations or foolishness to anyone who disagrees with you. I get that you're really passionate about topics like this, but must you always assume the worst about anyone who doesn't see things your way? This is bordering on uncivil.

I have a tendency to be very direct and honest in my opinions which other people frequently get offended by. I am not sorry for being honest and direct in the way I say things. I do not think it is uncivil. I've always viewed honesty as one of the highest forms of respect you can pay to another person.

The tendency of people on this forum to view any time I tell something I think they are wrong in any way or for any reason as being malicious is much more uncivil, where I'm sitting.
 

acapes

Sage
Very true...which is why the publishers have the upper hand...and why authors are treated so poorly. In my case I was able to battle back against some of the most egregious contract terms, because I was earning well in self-publishing and could always stay there. Most don't have this. But even someone like me, with some leverage, doesn't come out on top.

I saw that mentioned in another thread, Michael - very interesting. Especially re: the audio rights. And like you say, it's about the clout an individual author has, huh?

And as you've also mentioned in this thread, the amount of authors willing to sign that will help keep big publishers offering the unfavorable (to authors) contracts. My contracts are all with small presses and I've been able to negotiate on aspects like length of contract etc for which I am grateful indeed.

I'm curious, are you still reasonably happy working with the big guys at the moment? For instance, do the positives outweigh the negatives for you?
 
Hi,

My view is that you can suffer even these terrible contracts for one book, provided none of the restrictions apply to any others you write. My point is that you can view the book as a loss leader, hoping that the trade published book will generate sufficent publicity for you that it will sell your other books. And lets be honest here, the advantage that a trade published book hopefully has is that it will be put on shelves an indie book will not be put on, and placed in front of more eyes.

Maybe this is a cynical view, and I doubt publishers would like hearing it - that their authors would only consider them as one off vehicles to sales - but really is this that much different to discounting a book or even making it free so that your other books sell more? And we do know that those authors who seem to do best in the earnings sweepstakes are the hybrids.

So my advice, if you get a contract from an agent / publisher which looks like it might be rough but which could still potentially help make you a higher profile author - don't reject it out of hand. Sit back and mull everything over carefully. You have to think of your sales from all your books as well as the one you feel you might be ripped off on.

Cheers, Greg.
 

PaulineMRoss

Inkling
My view is that you can suffer even these terrible contracts for one book, provided none of the restrictions apply to any others you write.

This is exactly right. But what with non-compete clauses and first refusal clauses and out-of-print clauses, a contract could effectively stop an author from ever publishing anything in the future except through that publisher. It can be a career ending affair (at worst). And anyone who thinks a publisher wouldn't enforce the more egregious clauses is putting a lot of faith in them. Authors need to be very careful signing anything these days, especially with a big publisher.

But you can see the publishers' point. They don't want to spend money and time and effort promoting an author to success, only to have her turn round and go self-published on the back of that.
 

Steerpike

Felis amatus
Moderator
I don't see a contract that stops an author ever publishing again except through the one publisher being enforceable, honestly. At least, not in the U.S.
 

Devor

Fiery Keeper of the Hat
Moderator
I don't see a contract that stops an author ever publishing again except through the one publisher being enforceable, honestly. At least, not in the U.S.

What kind of window would you see as enforceable?

My expectation is that a contract might say you can't publish elsewhere until X time after your contracted book runs through its print run. If so a reasonably successful author could get tied up for quite a while.
 

Steerpike

Felis amatus
Moderator
That's tough to say as a general proposition, because various jurisdictions likely have their own case law as to what is reasonable. In California, a non-compete is presumptively invalid. In states where they are valid they generally have to be reasonable in terms of time and geographic area. I've written them for three year terms. The longest that came across my desk in MO was seven years. Of course, the contract can be used as a weapon even if the clause is unenforceable because people either don't know it is unenforceable or aren't able to/don't want to fight it. But the idea that you can sign your entire career away and never have the future option of going with another publisher, or even self-publishing, is not correct in my view.
 

Mythopoet

Auror
That's tough to say as a general proposition, because various jurisdictions likely have their own case law as to what is reasonable. In California, a non-compete is presumptively invalid. In states where they are valid they generally have to be reasonable in terms of time and geographic area. I've written them for three year terms. The longest that came across my desk in MO was seven years. Of course, the contract can be used as a weapon even if the clause is unenforceable because people either don't know it is unenforceable or aren't able to/don't want to fight it. But the idea that you can sign your entire career away and never have the future option of going with another publisher, or even self-publishing, is not correct in my view.

I agree that it almost certainly isn't legal or enforceable. But how many debut and midlist writers do you know who have the resources to take it to court to find out? Big publishers with their millions in revenue and teams of lawyers can still hold these clauses over the individual writer's head.

Or they can use such clauses as an excuse to cancel a contract. I remember the story of Kiana Davenport, traditionally published award winning writer, who signed a contract in 2010 for a book with a Big 5 imprint. It wasn't going to be published until 2012 and she needed some income, so she self published a collection of short stories that had already been rejected by publishers many times (including by the publisher she was contracted with). However, when the publisher found out they went "ballistic" and demanded that she take the volume down and attempt to delete all record of it from the internet. (heh) She refused (the short stories had nothing to do with the civil war era love story she was contracted with them for) and so they cancelled the contract and demanded she repay the advance.

Now, this exact sort of thing isn't likely to happen anymore, since publishers are much more accepting of authors self publishing these days. But it's an example of the kinds of lengths that publishers can go to thanks to the language they put in their contracts. And you can't believe them when they say things like "oh, well, that's just standard boilerplate, but we would never exercise it, trust us". Whenever you sign a contract you need to read it in light of what's the worst case scenario that can come from it. And if that worst case is something you don't want to have to deal with, then you need to get it changed.
 
I'm curious, are you still reasonably happy working with the big guys at the moment? For instance, do the positives outweigh the negatives for you?

Yes, but I'm a pretty successful traditionally published author...most wouldn't be in my position. I'm not in the 1% like someone like Hugh Howey or Stephen King but I'm certainly more comfortable than probably 90% of authors both self and traditional.

The Good
  • It was absolutely the right decision to make - on all kinds of levels. My audience grew. I made more money than I would have in self-publishing. It opened doors I couldn't open on my own
  • I've been treated very well...better than most...with a marketing budget and good marketing programs
  • The books were well produced and professional (although not the covers I would have preferred)

The Bad
  • The more successful my books become, the greater the disparity between the money in their pockets and the money in mine
  • I've had to sign contracts that I don't agree with on principal...yes no one put a gun to my head, and I could have walked but it's still not something I'm happy about.
  • When me and my publisher disagree...they win. It's what I knew I signed up. But it is still frustrating to see things that would help my career that I'm powerless to implement.
 
My view is that you can suffer even these terrible contracts for one book, provided none of the restrictions apply to any others you write. My point is that you can view the book as a loss leader, hoping that the trade published book will generate sufficent publicity for you that it will sell your other books. And lets be honest here, the advantage that a trade published book hopefully has is that it will be put on shelves an indie book will not be put on, and placed in front of more eyes.

Maybe this is a cynical view, and I doubt publishers would like hearing it - that their authors would only consider them as one off vehicles to sales - but really is this that much different to discounting a book or even making it free so that your other books sell more? And we do know that those authors who seem to do best in the earnings sweepstakes are the hybrids.

So my advice, if you get a contract from an agent / publisher which looks like it might be rough but which could still potentially help make you a higher profile author - don't reject it out of hand. Sit back and mull everything over carefully. You have to think of your sales from all your books as well as the one you feel you might be ripped off on.

Cheers, Greg.

I totally agree with this. Hybrid is the way to go...so if you have to sacrifice one book to traditional then it probably makes good sense to.
 
This is exactly right. But what with non-compete clauses and first refusal clauses and out-of-print clauses, a contract could effectively stop an author from ever publishing anything in the future except through that publisher. It can be a career ending affair (at worst). And anyone who thinks a publisher wouldn't enforce the more egregious clauses is putting a lot of faith in them. Authors need to be very careful signing anything these days, especially with a big publisher.

Non-competes must be negotiated to something that you can reasonably live with. I was fully prepared to walk from my six-figure contract with the non-compete that I had originally. What is reasonable? A few month window around their release when you won't release another book. You need to ensure you can "take your property with you" which means you can write prequels, sequels, spin-off, or other books with the characters or world without any other restriction - other than that few months to either side of their title's release.

Right of first refusal is equally easy. No reason not to give them a "first" look at your "next" book - but if you can't agree on terms in a reasonable amount of time 30 - 60 days then it's yours to do with as you wish. Things to watch out for is things like "we reserve the right to match any other offer - and if we do it is ours" or things like "if we option the next book it is under the same terms of this contract." If you are thinking of leaving your publisher there is probably a reason (bad blood) and you don't want them to "quick claim" back a book when you want a divorce from them. And you always want a new contract for a new book - especially if your star is on the rise.

Out of print -- well you just have to live with the fact that there is a real chance that the book you are signing is gone forever. If you can live with that then walk away. There should be "some" provision for out-of-print - but trust me it will be very low such that it will probably never trigger.

But you can see the publishers' point. They don't want to spend money and time and effort promoting an author to success, only to have her turn round and go self-published on the back of that.

Actually I don't think that is a valid point. If my new book increases my audience then their books sell more and we both benefit. They aren't promising to publish you for your whole career...so why should they expect you to have a different standard? The publisher needs to make the publish/not publish on the book they are signing...and if they treat you will they will get more from you.
 
I don't see a contract that stops an author ever publishing again except through the one publisher being enforceable, honestly. At least, not in the U.S.

It's not...but that doesn't mean it's not written in the contract. The issue is you have to go to court...and if you do you will win...but you will also be out lawyer fees and time/inconvenience. They are put in because most won't challenge them and they'll sometimes "make like" they have a case. It's all smoke, mirrors, and intimindation.
 
What kind of window would you see as enforceable?
I've gotten my non-competes to be a window 3 months before and 3 months after the publication date of their book(s).

My expectation is that a contract might say you can't publish elsewhere until X time after your contracted book runs through its print run. If so a reasonably successful author could get tied up for quite a while.

That would be a TERRIBLE clause and I would never sign it. When you examine a clause...consider the "negative possibilities." In what you just wrote what you are saying is "If I never sell through my print run, I'm never able to publish with someone else!!"
 
That's tough to say as a general proposition, because various jurisdictions likely have their own case law as to what is reasonable. In California, a non-compete is presumptively invalid. In states where they are valid they generally have to be reasonable in terms of time and geographic area. I've written them for three year terms. The longest that came across my desk in MO was seven years. Of course, the contract can be used as a weapon even if the clause is unenforceable because people either don't know it is unenforceable or aren't able to/don't want to fight it. But the idea that you can sign your entire career away and never have the future option of going with another publisher, or even self-publishing, is not correct in my view.

Yes non-competes need to be bound by time and location. Non-competes in "jobs" may be several years in length...but I would never consent to a non-compete that restricts me for more than 6 months. I can "sit" on a book for 1/2 a year and not worry too much...but I wouldn't go beyond that.
 
Top