A lot of people have been curious about specifics of my experience ever since I posted this thread on twitter. In it, I warned people about having an expert look over any publishing contract before signing anything. I’ll start from the beginning of my experience, and tell the entire story.
A few weeks ago, my manuscript was accepted by a publishing company after I query’d via (from what I recall) was a pitch during one of the “pitmad” events. I forgot which one, and the specific post as well. Ten days ago, however, after I query’d, a small indie publishing agency got back to me. They will remain unnamed as I do not want to be libel for Defamation. Anyway, it filled me with so much hope… but there were pitfalls even with that.
I was asked where I was going with my series. It’s a dark adult urban fantasy, and something I’ve been building for almost a year now. I have four full 100k+ books written, with a compendium of lore to boot. I worked hard on my series, and after the first two books did horribly when I self-published, likely due to my lack of marketing experience, I jumped at the chance for a contract. I ended up with a total of 6 reviews from non-friends/family (let’s be honest, most of my family isn’t interested in my work, it’s too dark/gory) for my novel on Goodreads. One of which is rather negative, but very constructive, which I appreciate. My books aren’t for everyone, and I understand that.
All of which is beside the point. The self-publish thing was a hindrance to me because I queried for the technical book 3 in my series, which was supposed to be standalone. The other two worked as prequels, and I figured it’d be just fine to query that way, as someone could enter the series with no prior knowledge. This was incorrect, as an entire series, regardless of how you write it, should be on one medium. That is, traditional or self publish. Otherwise, you’re competing with yourself or the publishing company. This is what the unnamed publishing company told me anyway, which I didn’t understand at the time, but do now.
Lesson number 1: Bad sales follow you in self-publishing, and could be a hindrance for traditional publishing no matter what book you query. HOWEVER, that entirely depends on the agent or publishing company, so take this piece with a grain of salt! There’s also success stories FROM self publishing too. It’s a difficult market, there’s many factors playing into it. In my case though, it almost barred me from a contract. In the end? It didn’t matter.
We worked it out. I sent the two manuscripts of my self-published works with promise I’d remove them from the market. The company really enjoyed it and pointed out some edits I’d need to make to give it that professional shine. Aside from getting the name of one of my characters wrong (which was pretty understandable, one was an evil scientist, one was a hero scientist, those two got mixed up), they pointed out some accurate flaws in my works. Meaning, yes, they went through my manuscripts and read them. They were truly interested in my works despite my mistake. I was over the moon that someone actually cared.
That entire week while they looked over my books 1 & 2 manuscript, I was very stressed. In the end, I got offered a contract after answering the question of how long it’d take me, roughly, to write up a manuscript for the remaining books I planned on having in my series. In the end, I was offered a full 7 book contract, with 3 manuscript deadlines settled in said contract as well. I said I was capable of writing a 100k+ word manuscript over the course of 4 months, which set the schedule. All was well.
But then my dad told me to not sign the contract. He said to have a lawyer look it over. At first, I scoffed. I was so close to my dream. So close. I wanted to argue, and I wanted to sign it right away. This is my DREAM we’re talking about! Traditional publishing, I could say I made it! But… I didn’t. I paused. I did some research on google, found nothing, and then turned to twitter. I asked via this post.
In the end, I took the advice of this user and contacted Eric Ruben. He was a pleasure to work with. He looked over the contract for me, and then we set up a phone appointment for the next day. Let me tell you, I was a huge ball of anxiety while waiting. Everything was fine, right? The contract looked good to me. Sure, there were a few issues, but I was confident I’d handle them. Not that big of a deal. He’d give me good news!
Wrong.
So very and unfortunately wrong.
Here’s the meat of the story. He found no less than ten issues with the clauses of the contract–some worse than others. We went through it in depth, and then he e-mailed me the notes following. That’s when I crafted my e-mail for the publishing company, rightfully expecting the worst. I only highlighted the important issues, minor ones I set aside. They weren’t important.
This is what I sent:
“Unfortunately, I spoke with my legal advisor and have a number of concerns regarding the contract. I will list out the concerns based on the clauses below. As an author it is imperative for me to protect my rights as well, especially when it comes to my life”s work like this.
Clause Number:
1. Both my legal advisor and I agreed that 20 years for a binding contract like this, especially with it being as greatly restrictive as it is (more below), is far too long. The normal length of time for a publishing contract to hold is 3-5 years. At most, I would be willing to have a binding contract with the proper changes at a maximum of 10 years. There is no legitimate “out of print” clause. The example I was given from major publishers is here:
“The Work shall be deemed out of print if no Physical Version or Digital Version is available for purchase or paid access in the U.S.; however, if only a Digital Version is If at any point 3 years following initial publication of the Work, it is out of print and Publisher receives from Author a written request for reversion of the Rights, Publisher shall within four months of Publisher’s receipt of such request either: (i) revert the Rights to Author in writing, (ii) confirm that it will make a Physical Version available or a Digital Version available for purchase or paid access within one year from the date of such receipt, and if Publisher does so then Author may not again request reversion until two full accounting periods after a version has been made available, it being agreed, however, that the Rights will automatically revert to Author if Publisher then fails to do either within such one-year period; or (iii) enter a license providing for the publication of a Licensed Version in the U.S. within one year from the date of the license.”
2. Giving away worldwide rights for every single medium is restrictive even for a major publisher. I am not comfortable with this being exploited.
3. Consultations in this contract are not binding. As an author making these worlds and characters, it’s important for me to not be shut down and have my works completely compromised with no binding for consultations with me. This is highly problematic.
6. Derivative works are something that isn’t acceptable in this contract. If the series becomes popular enough to warrant that, I as the author should be giving permission for such things. This is my intellectual property, and the fact that it can be given without my permission is also problematic.
8. The Termination clause is unfair. The Publisher end the contract at any time, for no reason. I cannot.
10. The noncompetitive clause is too restrictive. Not only is 5 years too long, but it is far too vague. This should be specific to the characters and world I create, or even genre. That’s something we would need to extensively talk out, and certainly define much stronger lines here.
16. There’s too much power to change my books in this clause. I do not approve of the idea that if I refuse to revise or add something in, the publisher can still do so and get someone else to do so. I do not feel the integrity of my works should be shattered like this.
18. My right of termination is only if you breach the contract. Otherwise I’m unable to leave this agreement for 10 years, and even then it is uncertain.
25. Both of us should be obligated to protect the copyright, as not only does it ruin my integrity, but it loses both of us money if someone attempts to resell my works without our permission. This is essentially saying you’d be able to opt into doing nothing, which does not make sense.
We will need to address all of the above prior to continuing with this deal, and prior to me signing any contracts. If we cannot negotiate and fix these issues, I apologize, but I will need to take my business elsewhere. While I greatly appreciate your interest in my series, I need to protect my rights as an author as well, and I do not want to be exploited.”
Let me break down further why those of what I mentioned were issues. For clause number (1), it’s pretty straightforward. I saw a problem with 20 years but was going to dismiss it–that’s a huge no-no, and way too long.
For clause number (2), large publishing companies can exploit worldwide rights in FAVOR of the author. However, even with that, it’s risky business. You’d be alright if a large publishing company did it most likely, but in a case like this? A small indie company, not well established, with little to no reviews? (Yes, they have a total of 2 reviews on the web…) Bad news. ESPECIALLY for all forms of media.
(3) Consultations aren’t binding–the publisher decides everything and could throw out pretty much any of what I say. I’d have no power in this area either.
(6) Basically, ANYONE could write in my world and I’d get only 10%. WITHOUT my permission. No one would be obligated to get my permission to use my intellectual property at all. This would be like if the Harry Potter universe (sorry, I don’t support Rowling but this is a good example) was open to be used by just about anyone should the PUBLISHING company approve. This could change the very lore of the world! WITHOUT the author’s permission! Big yikes.
(8) This might be classic American “The business can fire you for whatever it wants, sucks for you”, but usually that comes with the fact that the employee can quit at any time without consequence as well (aside from reputation, but I’m talking the raw deal here.) So they could ‘fire’ me at any point in time… but I could not get out of the contract unless THEY messed up. Pretty twisted–I thought it was standard, but was told this wasn’t a good thing or normal.
(10) There was no specific language when it comes to this. I could be barred from writing virtually anything and especially in my favorite genre, beyond the world or characters I created. This needed to be far more specific, or I would have screwed myself over on writing future works in my genre for YEARS.
(16) They could inject political ideology into my books with my consultation, and ignore my consultation if they didn’t like it. They wouldn’t have to take anything I say to heart, it wouldn’t be binding. They could revise my books FREELY and while they’d talk to me first? They could still be like “We see what you’re saying but are doing what we want anyway.”
(18) See (8).
(25) Anyone could steal my work and they’d not be obligated to do anything about it. You want them to feel obligated to protect the copyright, otherwise they lose money too. It simply makes no sense.
When I brought these issues up to the company, they didn’t address them at all. They weren’t willing to negotiate these terms with me at all, and gave me quite a few nonsense excuses that I saw through. Their response tells me that either they didn’t care to read it, didn’t understand it (they’re supposed to be professionals), or were dancing around the issues. Major red flags. They could have, if they were honest, talked with me about these matters and tried to work it out.
In the end, they were trying to exploit me. This is one statement from the e-mail response: “You might get a small press that doesn’t have our decades of experience to agree to these terms, but that isn’t us.” Something I find ironic since they have pretty much no presence via reviews or information on the front-runner of this publishing company. There’s far too much that simply did NOT add up. They thought this was about money, but I didn’t bring up the royalties at all. It wasn’t the money, it was the rights that they failed to address.
In the end, I majorly dodged a bullet. I’ve had people on twitter say, “Oh but this is standard” or “Oh take the chance anyway money money money”. Well no. I am NOT going to give up my rights as an author when an attorney that specifically works with contracts like this spells all of the issues out for me right there. Some of you might think it fine, but not me. I made my decision and passed on this restrictive contract.
Moral of the story: WHEN YOU HAVE A CONTRACT IN HAND, TALK TO AN EXPERT. Even if you want to go with it anyway, and even if you don’t care about what that expert has to say or disagree? At least you reassured that you know everything coming at you. Otherwise, you might get screwed over.
Edit many months later: My series is now self-published, however, and I couldn’t be more thrilled 🙂
Des M. Astor 
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