Reminder to aggrieved authors: Nobody holds a gun to your head and forces you to sign a contract.
– Don Linn (@DonLinn) February 12, 2014
Normally, whenever Don tweets anything I just nod my head in agreement and move on.
My response to this tweet, however, was more ambivalent because it seems to imply that we shouldn’t be complaining about unfair standard practices in the publishing industry.
On the one hand, I and Tom Abba did refuse to sign a publishing contract last year because the contract was objectively unfair and one-sided. (It was for a non-fiction book on ebooks, writing, and all sorts of fun stuff. Would have been fun.) We didn’t complain about the contract in public or throw accusations at the publisher. We just didn’t sign and put plans for that book on hold.
Could we have renegotiated the contract? Probably. But there was so much wrong with it that we would have had to have a new one written practically from scratch which would have meant high legal fees and lengthy negotiations. Even if we had felt that it was worth our time, it’s doubtful the publisher would have felt that it was worth theirs.
This would imply that Don is indeed right. Just don’t sign a contract if you don’t like it. Don’t complain when you sign a bad contract and get screwed.
Except it isn’t that simple.
First off, author contracts in English-language publishing are intrinsically less fair than in many other markets. (It doesn’t take much research to discover that US publishing is generally in the same ballpark as UK publishing when it comes to fairness in book contracts.) Authors have fewer legal rights. Copyright laws in the UK and US are geared towards protecting corporations over individuals. There’s no collective bargaining like authors have in several European countries and some other industries. The contractual baseline is also relatively unfair.
What I mean by that last point is that the baseline English-language contract—the best most authors are going to get if they shop around—is actually a pretty nasty piece of work. Rights are generally claimed for the entire copyright term with reversion clauses that are very easy for the publisher to game. Non-competes in one form or another are relatively common. And, because many of them got burned by the ebook transition, most publishers now pre-emptively claim all rights to all future formats for as long as they have the right to publish.
That’s generally the best case scenario that an author can expect and it’s already distinctly unfair—the contract completely favours the publisher over the author. Offer a similarly one-sided contract to a carpenter, for instance, and they’d laugh you out of the room.
It gets worse. A lot of the contracts authors get offered, the ones labeled ‘standard’, are even less fair, often claiming subsidiary rights, harsher non-competes, and impose onerous obligations on the author.
For a lot of markets in the publishing industry the only contract you can get is an unfair one. Which means the only alternative for many authors, if they want the services that publishers offer, is to not be published at all.
Which is a pity because publishers really do have a lot to offer to the publishing process. But, of course I would say that, I work for a publisher, albeit a small one.
There are two alternatives.
Firstly, you can negotiate for a better contract. But you aren’t going to get a fair contract unless you are in high demand or unless you are dealing with a smaller publisher. Good luck trying to get an English-language publisher to sign a contract that’s strictly limited to a five year term.
Secondly, you can self-publish. But you’d be missing out on the one really important thing that a publisher contributes to the process:
Without a publisher, the author needs to have the funds needed to buy the services that are essential to publishing: editing, design, marketing, etc.. And the author generally needs to provide the funds up front. A publisher has the capital to provide those services in exchange for a share of the profits.
Which also means that if an experienced author works in a mostly ebook-oriented genre, has the capital necessary, and is willing to risk it, they’d be a fool to sign up with a publisher. In that context, everything a publisher provides can be hired in. Freelancers don’t demand a tax on your revenue.
But, I digress…
All publishing endeavours need capital of some sort. You can work around it, minimise it, spread it out, or simply cut corners, but the simplest way to navigate that roadblock is to sell your book to a publisher.
Then you have to face the fact that publishing contracts in the English-language industry tend to suck.
Which is why, in the end, I think I’ll have to disagree with Don. Given that the best case scenario for most authors is only a slightly less unfair contract, I’d say they have every right to gripe when something goes wrong.
Moreover, speaking out is important for other authors. People need to be reminded so that they can take care themselves. Unless you are aware of how prevalent crap contracts are in the industry, you wouldn’t understand the importance of following the advice implicit in Don’s tweet (don’t sign a bad publishing contract). Every time an author gripes online about a contract another author is reminded to always go over their contracts with a ruler and an anal attitude.
If we ask them all to shut up because we perceive their complaints to be attacks on traditional publishing then we are only making the situation worse for everybody.
And I mean everybody. Every time a publisher screws another author they are doing their industry a disservice.
The single biggest step publishers could take towards taking the wind out of self-publishing’s sail would be to standardise, publicly, on fairer contracts.