Taking Out a Contract

10 Mar

The Interwebs and Twitterverse are abuzz.  Writers are being screwed.  Publishers, big and small, but especially big, are exploiting innocents.  Particularly offensive are the new genre e-book imprints of Random House – Hydra, Alibi, Flirt and Loveswept.  John Scalzi has done a good job at eviscerating them here, and he’s not wrong.  Anyone who signs such a contract will probably be taken for a ride.  Equally upsetting to many professional writers is the attempt by the quite-profitable Atlantic Magazine to get a well-established writer to contribute for free.  Kristine Kathryn Rusch piles on by suggesting to non-savvy writers: You’re a rotating group of widgets that might make the publisher some money. She advises writers to consider self-publishing (using lots of paid outside help) and write as many books a year as you can pump out, i.e. the James Patterson factory approach.  It’s the only way to fame and fortune.

On the flip side, Amanda Palmer, musician and wife of Neil Gaiman, says artists should be happy to work for free and be satisfied with what people are willing to give them.  Clearly that works for her since she managed to get people to give her $1.2M through Kickstarter for her last album.  Cord Jefferson disagrees, suggesting people who work for free, only do so because they already have money, or at least parents with money.  Or as my union buddies used to put it: The working class can kiss my ass; I’ve got the foreman’s job at last.

And, of course, what artist hasn’t heard: You don’t need to be paid, you’re doing what you love.  (BTW, when an artist says – I have no choice; I have to write, paint, whatever – they are basically saying the same thing.)  Folks, I know lots of lawyers who love the law, engineers who love building things, accountants who love working with numbers – they all want to be paid.  The only person who loves what he does so much he would do it for free is Warren Buffet but since what he does is make money, he has to give it away instead.

So what’s going on?  Has publishing changed?  Is traditional publishing dying? Has the e-book self-publication revolution turned everything on its head so old-time publishers are trying squeeze the last nickel out of writers before their empires collapse?

Publishing has changed – but not recently.  It changed during the wave of mergers and acquisitions that took place in the 1990s.  Bertelsmann, for example, is a massive media corporation who owns Random House and dozens of radio, TV, Internet, phone and content producers.  Ironically, they are the producers of “The Price is Right,” which pretty much describes their philosophy.  This was a company that made money under Hitler and continued to make money long after Hitler and his cronies were gone.  That’s what they do: Make money.  There’s the real change in publishing – when big companies stopped being run by people who loved making books and began to be run by people who love making money.

Traditional publishers aren’t desperate; they’re making more money than they ever have.  They are doing what entrepreneurs do: adapt, innovate or, in a few cases, die.  Have they suffered from the indie revolution?  Not so far.  They continue to dominate e-book sales and when an idie writer shows signs of success they sign them to a lucrative contract.  What has changed is the development work that publishers used to do with new writers is now being done by the writers themselves, while the money makers sit on the sidelines ready to swoop in and reap the rewards.  And indie writers, like Amanda Hocking, are more than happy to oblige, because publishing even a moderately attractive book is a lot of work.  Work that takes away from what you love to do: writing.

The e-book revolution, therefore, hasn’t changed the publishing side of the equation.  It has changed the writing side.  Self-publishing has always existed but it really had no significant impact on professional writers.  The reason is simple enough: while it’s easy to get your book printed, it’s damn hard to get it distributed.  Amazon and digital publishing changed all that.  Now anybody can publish a book and, theoretically at least, have it available world-wide.  True, most e-books don’t sell more than a handful of copies, even with relentless self-promotion.  But the possibility is there and more importantly, the exposure is there.  What e-books have permitted publishers to do is outsource the slush pile.  The public is now working to separate the wheat from the chaff.  Books that might have languished in a slush pile for years are now being vetted in a matter of weeks or months.  Net result: more money-making widgets (to use Rusch’s term) on display.

The laws of supply and demand are brutal.  Increase the supply, the price falls.  I’m not sure if there are more good writers out there (maybe, since it appears the average intelligence of people is on the rise) but they are easier to find.  I suspect the real reason writers’ advance have fallen is due to the increase in the supply of competent widgets.  Publishers can offer lower advances because the only option writers have is to do it themselves.  While some people are happy to take that route, for many writers it really is too hard or too unpleasant to contemplate and, with all due respect to Ms. Rusch, browbeating them is not going to change that.  Market forces will apply and many writers will find other ways to use their talents to make a living.  That’s what I did after six years of full-time writing.  Or, they will do what a lot of writers have always done – find a spouse with a good job who will support their artistic endeavours or get a job, like university lecturer, Senate employee, or school bus driver, that pays the bills while still having the flexibility to pursue their art.

Which brings us back to those Hydra contracts.  I’m sure some people who receive those offer sheets don’t feel like they’re being offered a contract as much as having a contract taken out on them.  Who would sign such a deal?  Are they stupid or just desperate to be published by a ‘real publisher’?  Or have they been conned into thinking this is the indie road to untold wealth?  Or are they like those poor people who get taken in by the Nigerian scam – knowing it’s too good to be true but willing to be persuaded there is a free lunch. Personally, I feel sorry for people who get taken in – but a little bit of me fears they may have only themselves to blame.  And, for those who are truly innocent, I support strong laws against fraud and the actions of attentive postal workers.

Years ago, I worked in labour relations.  At different times in my career, I sat on both sides of the table.  Offers were made; deals were negotiated.  Here’s the first rule of the process: never settle for the first offer.  The corollary is: never offer what you’re willing to settle for; always demand more.

The Hydra offer is the inevitable result of the e-book revolution.  No advances and make the writer pay for the development costs.  Then make them work for a share of the profits – and as the theatre promoter in Shakespeare in Love likes to say, ‘there are never any profits.’  Of course, professional writers associations are going to fight back – that’s their job.  As a writer, I say good on them.  Because as a writer, I want to get the largest advance and royalty possible for the least release of my rights and I want to do nothing other than write my books. I also want to be loved and admired and have beautiful young women fling themselves at my feet.  (What’s that you say: only the really dumb blondes sleep with the writers? Drats!)  As a writer, I want to get paid first and the publisher to get paid last.

But I’m also a publisher.  From that perspective, I’d love to pay no advances for all the rights to a work and, as well, get the writer to pay all the up-front costs in exchange for a share of mythical future profits.  As a publisher, I want to get paid first.  (At least the Hydra contract doesn’t require the writer to send a cheque as other vanity press companies did and still do – if the books don’t sell, nobody gets paid.)  I don’t happen to believe that model is sustainable – especially for small publishers without the financial clout of a Bertelsmann or Amazon – but one can dream, can’t one?

So what’s fair?  Fair is a moving target but one definition of fair is both sides of a negotiation get some of what they want, but not all.  Contracts people sign against their interests almost always lead to conflict.  Workers may – because of economic exigencies – sign contracts they hate.  At some point, they find ways to take revenge – through sick leave or workplace sabotage.  Or they find a better job.  Employers sometimes give away the farm in order to keep the lines running but then use oppressive management to claw the benefits back.

If writers are exploited, they will jump ship at the earliest opportunity or they will somehow sabotage the relationship.  Hemingway wasn’t the first to screw his publisher over contract disagreements and he won’t be the last.   If publishers are too generous, they go bankrupt (though writers’ advances are usually only a small contribution to the failure of a badly managed business – more a symptom than a cause).  Non-compete clauses are an attempt to stop that.

Fair is also getting what you are currently worth – a well-known writer should expect more from their publisher than a beginner.  On the other hand, publishers shouldn’t expect a free lunch, demanding the world in terms of extended rights and non-compete clauses in exchange for services they won’t or can’t provide.  (I’ll be interested to see how those clauses – that essentially indenture a writer to his publisher – will stand up in court.  Free agency, anyone?)

So the Hydra offer is exactly that – an offer.  The writer can and should counter-offer.  If you can’t reach a deal you can live with, find another publisher, or perhaps, publish yourselves.  In either case, writers have a duty to themselves to know, at a minimum, what’s involved in creating a book and what that will cost – financially and in terms of psychological stress.  Writers, like all professionals, have to find a way to maximize their income –so they can afford to keep writing, or at the very least justify themselves to the spouses who are paying the bill.

However, the day when writers will simply write and do nothing else is long gone, if it ever existed at all.  Writers should contribute to the overall product, not by paying for it but by reducing the workload of the publisher.  For example, final work should be submittedto the publishers’ specification, even if it is a pain in the ass to remove those extra spaces between sentences.  Find every typo to keep copy-editing costs to a minimum.  Be prepared to self promote – Facebook, Twitter and a web-presence is only a beginning.  Writers need to become media savvy so they can exploit every opportunity to promote their books, not just the obvious ones like book launches and writers’ festivals.  They also need to learn to be frugal.  Robert J. Sawyer is legendary for his ability to turn 3-city book tours, for which his publisher is willing to pay, into 10-city events.  He does it by flying at the lowest possible fair, staying with friends when he can, planning his tour around speaking events or SF conventions which pay a fee or subsidize his costs.  My friend Peggy Blair created two fabulous book launches in Ottawa by calling on friends and finding sponsors to supplement the small publicity budget of her publisher.

Can that kind of effort be written into contracts?  I think so – at least I intend to try.

On the flip side, publishers should recognize that writers have already done a bunch of work when they submit their manuscript and as they develop it for publication.  The advance represents a payment for that work.  It may be the only payment the writer ever gets, though any sensible publisher would hope that isn’t the case.  The advance also represents the expectation of the publisher of how many books he has to sell before it is profitable for him.  If he winds up paying more money to the writer, then the book has exceeded expectations and everybody is making money!  Legitimate publishers (I agree with SFWA: Hydra is not a legitimate publisher) can’t expect writers to pay all the upfront costs either.

The traditional publishing payment structure looks like this: writer, publisher’s employees and contractors, publisher, writer and publisher.  The vanity model, and to all intents and purposes the Hydra model, looks like this: publisher, publisher’s employees and contractors, writer.  With the writer’s payment highly doubtful.  Make no mistake, some people will sign these contracts, just as some people have and will continue to vanity publish.  The only difference is: now big publishers want a part of that particular revenue stream (when before they were dismissive of writers who took that route) though they still want to be recognized as ‘real publishers.’  It’s a shame but it is also inevitable when writers are on the bad side of the supply curve and publishers only reason for existence is, like every corporation, to maximize return on investment.

I’ve had a bit of fun showing what makes a bad contract and why so many writers are driven to sign them.  Next week, I’ll talk a little about what a decent contract might look like in our modern world and what role small publishers and other models, like writers’ collectives might have in creating them.

P.S If you’d like to make it possible for me to offer better contracts, support our latest project – an anthology of political science fiction called “Strange Bedfellows” – by donating to our Indiegogo crowd sourcing.  There are lots of nice benefits and it’s sure to give you a nice warm feeling.

And thanks to all those who have already contributed or spread the word on Facebook, Twitter or in their blogs.

One Response to “Taking Out a Contract”

  1. Randy McCharles March 11, 2013 at 7:41 pm #

    Excellent article that very accurately describes the topic.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: