Saturday, 20 September 2014

When Worlds Collide

I had a bizarre thing happen to me recently in that my lives as a lawyer and a self-published writer collided a little bit. 

I was called on by a longstanding client to look over a contract. Nothing strange, although given the demographics of my client base I had expected it to be an employment contract or a tenancy agreement. I was pleasantly surprised, and insanely jealous, to find that what my client (who we'll call Adam) wanted me to look over was a publishing contract.

Publishing contracts are hardly my forte being what's lovingly referred to as a 'High Street Solicitor' here in the UK. I normally deal with the legal troubles that come with day to day life such as family law and criminal law issues. However, I felt pretty confident taking this on having done the required reading on publishing contracts for my own information so that if I was ever offered one I would be able to tell if I was being screwed or not. So I told Adam I would have a look (and free of charge since I knew he didn't have a penny to his name).

It all started out harmlessly enough. The usual contract elements about who parties are, what the contract is about, what book is being referred to. All that boring stuff which runs on for three pages without actually getting anywhere (as a lawyer I'm not saying it's not important, but as a writer my instinct is to get readers hooked up front and hide the boring bits somewhere in the middle).

Then, finally, we got to the crux of the matter: the advance. At first glance, I saw printed in words and figures "one thousand five hundred pounds (£1,500) Sterling". Better than a kick in the balls, I thought. However, once I looked at the context in which the words appeared: “the author shall pay to the publisher the sum of ONE THOUSAND FIVE HUNDRED (£1,500) STERLING within twenty one days of the date of signing this contract". 

Hang on a minute. That's the wrong way around entirely. Alarm bells rang, red flags went up, and my spidey sense tingled. This was something I had read about previously: despite this contract having the look and feel of a traditional publishing deal, it was really a deal from a vanity publishing house.

Now I'm not saying that in some circumstances, that's not okay. If you really want your book out there and want to pay fifteen hundred pounds for the pleasure, go for it. However, a traditional publishing deal it was not.

But wait, there's more!

In addition to asking Adam to pay such a price for publishing his book, there were some more strings attached. Adam would be required to give up his right to have the final say on the book's editing. And also: the contract was very clear that after taking Adam's money, the publisher had no obligation to actually publish his book. 

Now let's take those one-by-one: editorial control is something that new authors will have to be flexible on. If you want someone to sell your book, and you don't have the name Stephen King, your publisher is taking a gamble. They will want to make your book as sellable as possible. That might mean that your protagonist will have to change his name from M'Foto'qrt to Jim. Or it might mean a complete re-write of the story and removal of some of the 'edgier' parts. It all comes down to what you're comfortable with. Be very careful when signing a contract that you're not giving away more control than you're comfortable with. Be warned: it might mean walking away from that deal you always wanted.

Then there's the other small matter of the publisher making no guarantees that the work will be published. The basis of contract law is rights and corresponding obligations. If you are obliged to pay £1,500 to a company, the least you should expect in return is that you will be given a corresponding right under the contract to have your work published by the publisher. And not just that: a right to have it done in a reasonable timeframe!

My ultimate advice to Adam was to politely decline this deal, and to keep submitting to publishers and agents. 

So here endeth the contract law lesson. There are obviously hundreds of considerations to keep in mind when it comes to negotiating contracts, and these are just a few. My advice would be to lawyer up the minute you get a contract (if you don't already have an agent) these things take quite a bit of training to understand fully. Lawyers have their own language which might seem innocuous to the casual reader, but might actually have significant consequences should it have to be relied on in court at a later stage. 

Lawyery backside-covering bit: none of the above is legal advice. Consult your own lawyer before signing anything.

A stern nod and a firm, professional handshake,