Chip MacGregor

May 4, 2010

The Worst of Contracts


Dale wrote to say, "You've told us some things to look for in publishing contracts. What are some of the BAD things you've seen in contracts?

First, let me say that I think it's great Dale wrote to me, so that I can legitimately use a joke about "Chip and Dale." I've seen some really, REALLY stupid things in book publishing contracts. Some examples: 

1. A contract with no title listed and no description of the project. So you're on the hook for…who knows what?

2. A grant of rights that includes everything, including if you ever decide to write or speak on this topic again sometime in this lifetime. (Keep this in mind when looking at the conflicting publications clause — it's reasonable to expect a publisher gets a window in which the author is focused on their contracted title. It's not reasonable to make that a lifetime ban on the subject for an author — something I've seen.)

3. A description of the work so broad that you would be considered in breach of contract should you write a thank you note to your Aunt Agatha for sending you that bad Christmas sweater.

4. An advance that needs to be paid back should it not earn out. Paid back?! This is an "advance against royalties," not a loan. For crying out loud — why not ask 'em to fill out an application? 

5. Royalties that DROP when more copies are sold. (No kidding. Read the fine print.) Take a look at the contracts of some publishing houses — if your book is sold at a reasonable discount, they'll cut your royalty in half, leading the sales team to SUGGEST THAT VERY IDEA to accounts. Great plan. 

6. Some contracts have words that basically say, "If we re-sell the idea to other people, we get to keep all the money." I've seen this happen a couple times — and in BOTH circumstances it led to really bad feelings with the author. 

7. Be wary of the term "excerpts." It sure looks like some publishers can take excerpts from the books they're publishing, repackage them into a new product, and pay you, um, nothing. Zero. Zip. Zilch-a-rooni.

8. I recently saw a "reservation of rights" clause that described what the publisher reserved, but failed to mention anything for the author. Uh, the reservation of rights clause is there to protect both publisher AND author. Consider the wording carefully, so that you basically retain the rights not specifically granted to someone else.

9. I've seen several contracts that offer no definition of acceptance. In other words, "If we don't like it, tough luck."

10. An opt-out clause. I started seeing this a few years ago. It basically says, "We want to publish your book…but if we change our minds, you're screwed. Pay us our money back." Look, lots of people want out of a bad deal. But there needs to be some sort of reasoning offered — it's not an acceptable manuscript, or it has libel potential, or you didn't write the book you'd promised, or they just saw you getting arrested on COPS. Those are reasonable reasons for canceling a book. The fact that the publisher woke up and decided he or she simply no longer wanted to publish your novel probably is not reasonable.

11. No publication time limit. I have a friend who turned in a piece more than 11 years ago. It's still not made it to press, but the publisher won't give it back, and doesn't have to because the contract states they don't have to publish it until they feel like it. (I'm not making this up.) 

12. The copyright in the name of the publisher. A bad idea.

13. While I think option clauses have their place, I remember the bad old days when one publishing house tacked on a double-option for every book you did with them. So the more books you wrote, the more books you owed them! You could never complete your contract.

14. Indemnity clauses that only flow one way. In other words, if anybody ever sues us, for any reason, the AUTHOR is expected to pay for it. (Don't laugh. I've seen it more than once.)

15. A favorite clause of mine when I was an agent at Alive was the old morality clause. In other words, "if the author ever screws up, we can drop this deal." Okay, that's not really an egregious clause, so I suppose there's some reasonableness in that for Christian audiences…but what about when a PUBLISHER fouls up? Just a thought. 

There are others, of course, but this at least allows me to get some of the really awful stuff out there for you to consider. Be aware that not all publishing contracts are created equal. One publishing house hired a lawyer with little or no publishing background to revise its contract a few years back, and that individual created what is without question the WORST, most one-sided book contract I've ever seen. I often wonder what authors experience when they have to deal with that company. The lesson: learn the business side, not just the art side.

By the way, a cool bit of news today… Steeple Hill's Executive Editor, Joan Marlow Golan is being interviewed over at , and has nice things to say about Kit Wilkinson's new novel, Sabotage…


And tomorrow we begin our annual "Bad Poetry" contest…  :o)


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