On reading / questioning contracts

(Also from my what should I blog about poll, though after the first two, I’m no longer going quite in order.)

Four personal-experience exercises in why I believe writers should always read and question their contracts:

1. A couple decades ago, with just one short story sale under my belt, I sold what would have been my second short story to a magazine–but the market insisted on all rights. I wasn’t comfortable with that, so I withdrew the story. Later, the magazine accidentally scheduled the story anyway. I talked to them again, and we agreed on magazine rights instead of all rights. I later sold the story to an anthology as well.

2. A few years ago, I sold a short story to an anthology. I’d sold a couple dozen short stories by then, so I knew the advance and royalties were lower than typical, but but the project looked like fun–until the contract arrived, It included non-disclosure terms that would have forbidden me from telling anyone just how poor the terms were, or what I’d been paid, or from saying anything negative about the publisher at all. I wasn’t comfortable with that. I suggested alternate terms. I got some things changed, but the “don’t talk about the terms of your contract” clause remained. I withdrew the story, and soon after was able to tell another writer considering this publisher for a novel what the terms were like, not so they could avoid them, but so they could make their own decisions with their eyes wide open, and I was able to do so without being in breach of contract. I later sold the story to a market that didn’t pay any more, but that provided better exposure and required no non-disclosure clauses. The story is still available online. The imprint of the publisher to which I originally sold the story has since folded, and the book is out of print.

3. A few months ago I was approached to write a short story for an anthology. The advance was a little better than for #2, but only a little, and the payment was a one-time flat fee, no royalties. One friend suggested that was probably the best I could expect and I should accept it; another suggested that rather than admit the terms were problematic I should just tell the publisher I was too busy to write for them. Instead, I politely told the publisher the truth: that I was interested, but that I wasn’t willing to write that many words for that low a flat fee, and would they consider offering royalties? They didn’t agree to royalties, but they did agree to a slightly higher flat fee. In the end I still decided to walk away, but the editor and I parted ways cordially and respectfully. I lost nothing by being honest, and may even have come across as more professional for it. And though the changes in terms weren’t ultimately enough for me to write the story, I did negotiate better terms, as well.

4. I sold a short story to an anthology for a pretty nice advance–but the contract arrived with no mention of the royalties specified in the offer email, only a flat fee. I knew I wasn’t willing to walk away from this contract, but I didn’t say that. I politely pointed out the discrepancy in terms. It turned out an honest mistake had been made. Both I and all the other contributors–some of whom had already signed–were issued new contracts.

I haven’t always changed the terms of my contracts by questioning them–but I have changed them sometimes. Other times I’ve gone ahead with a project knowing that at least I tried, and a few times, I have walked away. (I think it’s important to know, going into any negotiation, what you’re willing to walk away for, and what you’re not.)

In other words, no harm has come of my reading and questioning my contracts, and some good has come of it. And as far as I can tell, I’ve gained more respect than I’ve lost by being willing to (politely, professionally) question problematic terms.

At the very least, I think it’s important for writers to actually read their contracts. It doesn’t matter if you want this contract so badly you’d sacrifice your first-born child. It doesn’t matter if you have an agent you trust to within an inch of your life. It’s your signature going on that contract, and you’re responsible for and are agreeing to everything in it. You need to know what it is you’re agreeing to, and you need to know that you really do agree.

I’m always a little dismayed when a writer tells me they signed without reading, or without trying to understand what they read. No one has ever pulled a contract because I took the time to read it, or asked about what I read afterwards. And if one day they did? Well, then I’d walk away knowing I’d saved myself a bit of grief, because anyone who’s offering terms they don’t want questioned isn’t someone I’m comfortable working with, either.

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